In June, I wrote that under the EEOC's regulations, English-only workplace rules are presumptively illegal unless required by business necessity. See English-only workplaces spark lawsuits. The debate over the appropriateness of these regulations has now reached the floors of both houses of Congress. Conservative lawmakers were spurred to action after the EEOC sued the Salvation Army over the termination of two Hispanic employees for speaking Spanish while sorting clothes. In April, Republican Senator Lamar Alexander, with the support of three Democrats, attached an English-in-the-workplace provision to the EEOC budget bill. That bill, which passed the Senate in June, would make it unlawful for the EEOC to bring lawsuits challenging English-only workplace rules. In the House, meanwhile, Hispanic members narrowly won a vote in July to reject a similar provision. Last week, however, the House took a non-binding vote of 218-186 urging House negotiators on the underlying budget bill to accept Alexander's language. Meanwhile, Speaker Nancy Pelosi has promised that Alexander's English-only provision will be killed, and House-Senate negotiations on the underlying bill have been put off indefinitely. Fox News quotes Senator Alexander: "One way to make sure that we have ... a little more unity that is our country's greatest accomplishment is to make certain that we value our common language.... And that we not devalue it by allowing a federal agency to say that it is a violation of federal law for an employer in America to require an employee to speak English on the job."
While Congress and the EEOC hash out these issues, employers should tread lightly if considering implementing an English-only rule. Such policies should only extend as far as necessary to reach the articulated business reason, and employment counsel should be consulted to evaluate whether the policy is not discriminatory as written or as applied.