Thursday, March 30, 2023

Think twice before implenting that “English only” rule in your workplace

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You’re an immigrant too!

– Jack White, Icky Thump (2007)

Total Employment and Management has agreed to pay $276,000 to settle a national origin discrimination and retaliation charge filed with the EEOC challenging the employer's "no Spanish" rule in its workplace.

The EEOC alleged that TEAM not only imposed its no-Spanish rule without an adequate business justification to support it, but it also fired five employees for defying the rule and continuing to speak Spanish.

According to the EEOC, "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." It requires an employer to show a "business necessity" to support such a rule.

The majority of federal courts, however, have shown greater tolerance towards "English-only" rules. Generally, courts will uphold an English-only rule if an 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; and
  • Furthering interpersonal relations among employees.

Employers should be careful, however, to limit the reach of an English-only requirement only as far as it necessary to reach the specific 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. "Unless there is a legitimate business necessity, such policies are likely to discriminate against workers based on their national origin," says Elizbeth Cannon, director of EEOC’s Seattle Field Office.

Or, to put it more directly, consult with employment counsel before implementing any English-language requirements in your workplace to ensure that the policy is not discriminatory as written or as applied. It's better (and far less expensive) to vet your policy through your employment lawyer beforehand than to defend it in litigation after the fact.