English-only debate is not going away

Since I last wrote on English-only workplace rules and Congress's attempt to prohibit legal challenges of them (Congress debates legality of English-only rules) the debate has continued. Yesterday, the New York Times gave its 2 cents:

Politicians like Senator Lamar Alexander, Republican of Tennessee, have jumped into the fray. Last year, Mr. Alexander introduced legislation to prevent the [EEOC] from suing over English-only rules. After that measure died in conference committee, he introduced a similar one in December.

"This bill’s not about affecting people's lunch hour or coffee break — it's about protecting the rights of employers to ensure their employees can communicate with each other and their customers during the working hours,” he said in a recent statement. "In America, requiring English in the workplace is not discrimination; it’s common sense."

Time out, everyone. Let’s think about what really makes sense here.

Certainly, safety issues arise in some workplaces. The Federal Aviation Administration, for example, requires air traffic controllers to "be able to speak English clearly enough to be understood over radios, intercoms, and similar communications equipment."

Managers may also need employees who can speak English to English-speaking customers. And they may hear complaints if English-speaking employees say they feel excluded or gossiped about when colleagues converse in another language. Such situations, in fact, gave rise to English-only rules in the first place.

The bottom line on this issue remains unchanged, and is largely grounded in common sense. English-only rules have their time and place. If you have a legitimate problem – such as safety, communication with customers, or communication among employee – such a rule will probably pass muster. If, however, you are enacting such a rule to discourage non-Americans from working at your place of business, or if the rule overreaches by banning foreign languages in non-work spaces (lunch rooms, etc.), you should prepare yourself to unsuccessfully defend a lawsuit. As long as immigration remains a hot political topic, this issue is not going away. Being smart about these rules, though, will help you from being stung by their legal traps.

Congress debates legality of English-only rules

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.

Document, document, document!

As the record reflects, there was a myriad of problems with Plaintiff's job performance and treatment of his subordinates that justified Defendants' decision to fire Plaintiff. This, however, is not what Defendants told Plaintiff during their final meeting. Defendants did not tell Plaintiff he was being fired for poor performance, but rather because of an unspecified "personality conflict." While the law does not specifically require an employer to list every reason or incident that motivates its decision to terminate an employee, we are skeptical of undocumented accounts of employee conduct that may have been created post-termination. Under the facts of this case, however, ample evidence exists that indicates that Plaintiff's performance was inadequate to meet his job requirements. In sum, Plaintiff has not put forth sufficient evidence for a jury reasonably to conclude that Defendants did not have an honest belief that Plaintiff performed his job duties poorly.

So said the Sixth Circuit last week in Abdulnour v. Campbell Soup Supply Company, a national origin discrimination case brought by an Iraqi national fired by Campbell Soup for job performance that was less than "M'm M'm Good". The Sixth Circuit upheld the trial court's dismissal of the lawsuit on summary judgment because Abdulnour could not come forward with any evidence, other than his own subjective disagreement, that Campbell Soup did not honestly believe in the reasons proffered for his termination. Clearly, however, as the quote above demonstrates, the appellate court was troubled by the lack of documentation in Abdulnour's personnel file for the alleged performance deficiencies. It is safe to assume that if Abdulnour could have come forward with any evidence at all to support his allegation of pretext, the court would not have hesitated to ding the company for its poor documentation.

The lesson to be learned is basic, but one that cannot be repeated enough. Any employer's greatest defense against a claim of discrimination is a well-documented history of performance problems to support the termination, coupled with comparable treatment of similarly situated employees. When in doubt, document all performance problems with all employees. If the discipline or counseling is oral only, document that fact also. Have all employees sign off on all such records, and if the employee refuses to signify the receipt of the discipline, document that failure as well. The Sixth Circuit in the Abdulnour case cannot be any clearer that when an employer relies on undocumented accounts of misconduct to support a termination, it is fair for the court and a jury to draw the inference that those accounts were created post-termination. The Abdulnour decision is the anomaly, and almost universally cases with poorly documented personnel files will not end well for the employer. Campbell Soup dodged a bullet; do not put your company in similar risk.

Foreign accents as direct evidence of national origin discrimination

According to the EEOC:

An employment decision based on foreign accent does not violate Title VII if an individual's accent materially interferes with the ability to perform job duties. This assessment depends upon the specific duties of the position in question and the extent to which the individual's accent affects his or her ability to perform job duties. Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still determine whether the particular individual's accent interferes with the ability to perform job duties.

In re Rodriguez demonstrates these principles. Jose Rodriguez applied and was rejected for two vacant supervisory positions at FedEx, despite the hiring manager believing him to be qualified for the positions. The Human Resource Manager, Adkinson, however, expressed concern that Rodriguez was difficult to understand and that his Hispanic accept and speech pattern would adversely affect his ability to rise through the company's ranks. Witnesses also attributed to Adkinson disparaging comments about Rodriguez's "language" and "how he speaks." After trying to be promoted for nearly a year, Rodriguez ultimately gave up, resigned, and sued FedEx for national origin discrimination. The Sixth Circuit held that Adkinson's comments concerning Rodriguez's accent was direct evidence of national origin discrimination, and sent the case back to the district court to determine FedEx would have refused to promote Rodriguez even without a discriminatory motive. In reaching that conclusion, the Court reinforced that "accent and national origin are inextricably intertwined," and that the EEOC "recognizes linguistic discrimination as national origin discrimination." It is probably little solace for FedEx that the court of appeals affirmed the dismissal of the hostile environment, constructive discharge, and retaliation claims. Now it will have to prove to a jury the legitimacy of its termination in the face of the HR Manager's comments.

English-only workplaces spark lawsuits

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

– Jack White, Icky Thump (2007).

Immigration reform continues to be a hot button issue, and a recent rash of lawsuits continues to fuel the debate over whether an “English-only” rule constitutes national origin discrimination. 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 some 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.

Employers should be careful, however, to limit the reach of an English-only requirement only as far as it 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. You should 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.