March 15, 2008

“English Only” Policies in the Workplace (Employment Law)

Many employers across the country seek to promulgate “English Only” policies in the workplace, thereby requiring all of their employees to speak English when they are at work.  At first blush, such a policy does not necessarily seem like it should spark a discrimination claim because while it may be unlawful to discriminate against someone’s place of origin, it is not unlawful to discriminate against someone on the basis of their ability or inclination to speak in English... or is it?  According to the Equal Employment Opportunity Commission (EEOC), taking an adverse action against an employee for their failure to communicate in the English language can constitute actionable discrimination under certain circumstances.

The EEOC has adopted the position that employers can require their employees to speak English without violating the law if they have “a legitimate business reason” for doing so.  For example, if an employer’s customer base predominantly speaks English, then the EEOC would not find it objectionable if the employer required its sales people to speak English exclusively.  Furthermore, if most of the other employees also speak English exclusively, it is eminently reasonable for an employer to ensure that all employees speak that common language – at least for purposes related to safety.  However, where an employer punished two employees who spoke to each other privately in a foreign language during a lunch break or away from the general public, the EEOC has ruled that there is no legitimate business reason for requiring them to have spoken in English.  Accordingly, the EEOC found that such a proscription violated national origin protection rights under Title VII.  

On December 12, 2007, SLG’s own congressman, Tom Price (R-Ga) introduced a bill entitled the Common Sense English Act (H.R. 4464).  
If this bill passes, the EEOC’s recently adopted position will be rendered moot for all intents and purposes. However, it is important to note that most bills never make it out of committee, and unless and until HR 4464 does pass, the EEOC’s position should be given due deference.   

If you are contemplating establishing an “English Only” policy in the workplace of your business, you should consider the following points to ensure that it will not be deemed unlawfully discriminatory by any state or federal authorities:

  • Make sure your policy will be uniformly applied and is never enforced in isolated incidents;

  • Make sure you can clearly establish how the policy will positively impact your business operations (set this reasoning forth in the preface of the written policy itself);

  • Maintain an index of safety concerns that are sufficiently addressed by use of a common language (i.e., English);

  • Avoid a “Blanket Policy” by narrowing its implementation to supervisory issues, client communications and safety issues; 

  • Do not seek to regulate the conduct of employees while they are not on the clock; and

  • Make sure the policy is explained sufficiently by upper management and understood by the entire work force.

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SLG Publications