California employers have long faced complex discrimination issues because of the state’s diverse population. And now a recently enacted state law imposes new restrictions on employers’ ability to set workplace language rules.
Language Restrictions Must Be Justified
Under the new measure, A.B. 800, it’s illegal to adopt or enforce a policy that limits or prohibits the use of any language in the workplace unless you can show that the policy is justified by business necessity. Plus, you have to notify employees of the circumstances and time when the language restriction must be observed and the consequences of violating it.
The law defines business necessity as “an overriding business purpose” that makes the language restriction necessary to the safe, efficient operation of your business. Further, the restriction must effectively fulfill this business purpose and there must be no equally effective and less discriminatory alternative available.
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Previous Guidelines
The new state law reflects existing federal guidelines on workplace language restrictions. The Equal Employment Opportunity Commission previously interpreted federal discrimination laws as applying to language restriction in the workplace, stating that English-only policies breed alienation and intimidation and result in a discriminatory work environment. EEOC guidelines state that English-only policies that apply at all times in the workplace, even during nonduty break times, are presumed to be discriminatory.
The Ninth Circuit Court of Appeals had previously ruled that in some situations employers have the right to control conversation on the job and can require workers to speak English. The new state law now clearly shifts the burden to employers to justify language restriction policies.
Strategies To Ensure Compliance
Here are steps to take now to comply with the new law:
- Review your language policies. Modify or eliminate language restrictions to conform to the new law. Carefully consider whether language restrictions are necessary and whether you can justify them as the law now requires.
- Document your business reasons. You’re required to show both that the restriction is necessary and that no less discriminatory alternative is available. For example, if you want to impose an English-only restriction for a construction crew for safety reasons, you may need to show that giving safety training in another language, such as Spanish, isn’t workable, or that speaking more than one language at a hazardous worksite could cause dangerous confusion.
- Notify workers. Make clear to employees what the policy is and the consequences of violating it. Discipline less drastic than termination is probably best. Also, help workers make sense of the rules. For example, you could point out that multilingual ability can be a bonus for customer service employees in dealing with customers who don’t speak English but that customer service personnel shouldn’t speak another language to each other in front of customers because it’s rude and can alienate your customers.
- Limit language restrictions. Don’t restrict language during nonduty time such as breaks or lunchtime when it’s unlikely that a business justification would apply. Also, restrictions may be necessary only for workers in certain jobs, not everyone.