Strasburger.com Labor & Employment Newsletter
PREPARED BY

Tiffany L. Cox
Tiffany L. Cox

2801 Network Boulevard,
Suite 600
Frisco, Texas 75034

ENGLISH-ONLY POLICIES


One result of the increasing diversity of America's workforce is that employees are more likely to communicate in the workplace through languages other than English. In light of this situation, some employers try to adopt across the board English-only policies. But, mandating that all employees use English for all workplace communications is rarely justified and will probably result in repeated claims of national origin discrimination under Title VII. Accordingly, employers should be aware of the limitations placed upon English-only policies and keep such limitations in mind when considering the use of, and actual implementation of, an English-only policy.

BY THE NUMBERS

  • According to the 2000 U.S. Census Bureau Report, approximately 47 million Americans spoke a language other than English.1
  • Of that number, nearly 11 million either did not speak English at all or did not speak English very well.2
  • Spanish is the most common non-English language spoken in the U.S.3
  • The most recently reported numbers for the Equal Employment Opportunity Commission (“EEOC”) indicate that approximately 228 charges were filed challenging English-only policies in 2002. This number represents a more than 600 percent increase from 32 filings in 1996 when the EEOC first began tracking claims regarding English-only policies.4

WHY ENGLISH-ONLY MAY BE VIEWED AS VIOLATING TITLE VII

As a general matter, Title VII prohibits employers from discriminating on the basis of national origin, which "means treating someone less favorably because that individual (or his or her ancestors) is from a certain place or belongs to a particular national origin group."5 The EEOC takes the position that an across-the-board, English-only policy likely violates Title VII because language is so closely associated with national origin and requiring bilingual employees to speak only English at all times is a "burdensome term and condition of employment that should be closely scrutinized."6 As such, the EEOC allows the adoption of English-only policies only for non-discriminatory reasons which are consistent with a "business necessity," such as in the following situations:7

  • For communications with customers, co-workers, or supervisors, who only speak English
  • In emergencies or other situations in which workers must speak a common language to promote safety
  • For cooperative work assignments to promote efficiency
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers

EEOC Example of Permissible English-Only Rule

XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing areas when they are not performing a job duty. The English-only rule does not violate Title VII because it is narrowly tailored to safety requirements. 8


SO, IF YOU STILL WANT TO ADOPT AN ENGLISH-ONLY POLICY

1. Establish the Business Necessity

Identify and evaluate the specific concerns or purposes requiring the use of English only, such as reports of safety problems, comments from customers about lack of service, or complaints from employees that co-workers who speak a different language appeared to be commenting about them in such a way that they felt excluded or targeted. Gather documentation supporting these concerns or purposes. Evaluate whether your specific concerns or purposes can be achieved through means other than an English-only policy. Articulate your business necessity for adopting an English-only policy.


2. Tailor the Policy to the Business Necessity

Remember - any English-only policy "should be applied no more than is necessary to get the job done well and to minimize friction between employees - beyond that, employees should be left to whatever language they prefer to use." 9 If, for example, the reason behind the policy is to improve customer service, there is no reason to prohibit employees with no customer interaction from speaking other languages; instead, limit the policy to those employees who deal with customers and to those periods of time during which those employees help customers. In addition, do not prohibit the use of other languages during periods of rest or break, as such a policy is not likely to have any conceivable business justification.


3. Provide Advance Notice to Employees

Prior to implementing an English-only policy, all employees should be provided with advance notice of the policy, including information on why the policy is being implemented, on what is or is not allowed, on who is affected by the policy, and on the disciplinary consequences for violations of the policy.


4. Train Supervisors

A well-drafted policy is of little benefit to an employer unless its supervisors are properly trained on how to implement the policy. In reviewing violations, supervisors must use common sense in determining whether discipline is the appropriate response. While employees should be disciplined for intentional violations, accidental or unintentional violations may not even be disciplinary matters at all if, for example, an employee utters a few words in his native language during an emergent situation.


1United States Census Bureau, Language Use and English Speaking Ability, at
http://www.census.gov/prod/2003pubs/c2kbr-29.pdf
2 Id.
3 Id.
4 The U.S. Equal Employment Opportunity Commission, EEOC Compliance Manual: Section 13 – National Origin Discrimination, at
http://www.eeoc.gov/policy/docs/national-origin.html
5 29 C.F.R. § 1606.1.
6 29 C.F.R. § 1606.7.
7 Id.
8 Id.
9 The U.S. Equal Employment Opportunity Commission, supra n. 4.
10 Texas Workforce Commission, English-Only Policies, at
http://www.twc.state.tx.us/news/efte/english_only_policies.html



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