Tuesday, November 13, 2018

Do you know? English-only workplace policies

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You're an immigrant too!
– White Stripes, Icky Thump (2007).
Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald's restaurant, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

In Martinez-Gonzalez v. Lakeshore Staffing (6th Cir. 11/9/18) [pdf], the appellate court disagreed.

Taking the record as a whole, no reasonable finder of fact could find that Lakeshore had a policy and culture of requiring its employees to speak only English. Lakeshore … filed seven declarations demonstrating that the so-called English-only policy could not exist because employees attested that they speak Spanish in the workplace or know of employees who openly speak Spanish in the workplace without reprimand. Martinez and Lopez do not contest either the factual veracity or the legal significance of the declarations. Instead, in support of their argument, Martinez and Lopez cite to two instances where Martinez stated she was told to speak English and one instance where Lopez testified she was told to speak English. Martinez and Lopez cite no disciplinary records in which they were reprimanded because they were speaking Spanish.

Thus, there was no evidence to support the existence of an English-only policy. That said, English-only policies certainly raise legal red flags.

As immigration and immigration reform continue to be hot button political issues, employers take a big risk when they require all of their employees to speak only English at work.

The EEOC's position is that a "rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment" and presumptively "violates Title VII." According to the EEOC, an "employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity."

The majority of federal courts, however, have shown slightly more tolerance of "English-only" rules. Generally, Courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

  • Stemming hostility among employees.
  • Fostering politeness to customers.
  • Promoting communication with customers, coworkers, or supervisors who only speak English.
  • Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
  • Facilitating a supervisor's ability monitor the performance of an employee.
  • Furthering interpersonal relations among employees. 

Thus, employers should be careful to limit the reach of an English-only requirement only as far as is necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks, and even private telephone conversations.

If you are considering an English-only requirement for your business, you should not do so without consulting with employment counsel, to ensure that the policy is not discriminatory as written or as applied.