We have quite a diverse population in our area, and many of our applicants do not have good English skills. Can we require our employees to be able to speak English? We think it’s critical for our salespeople who deal with the public, and really, just as important for our assembly, fabrication, and warehouse workers for easy communication and safety issues. What do you think? Can we make it a requirement? —Sally, HR Manager
Courts have allowed English fluency requirements that don’t adversely affect one particular group of people disparately. Even if there is a disparate impact, such a requirement still can be lawful as long as it is related to the job and consistent with business necessity.
Because most English-fluency requirements, as a practical matter, will have a disproportionate impact on individuals of a particular national origin, it’s best to evaluate any proposed requirement based on your business need. This essentially means that the employer needs to be able to justify the rule based on some business reason, such as the need to communicate effectively with customers or clients, or for safety.
Employers need to be cautious, as the business need for an English-fluency requirement may not be the same from job to job. Salespeople who deal with an English-speaking public, as you mention in your question, likely require effective communication in English to perform their job. On the other hand, warehouse workers who do not interact with English-speaking customers may not need to speak English perfectly to perform their jobs effectively, and imposing an English-fluency requirement on them could be found to be discriminatory. Although it may be lawful to require them to speak some English for safety or efficiency reasons, requiring complete fluency may not be necessary or justifiable.
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On a similar note, denying employment to someone because he or she has an accent also could be found to be discrimination based on national origin under U.S. Equal Employment Opportunity Commission guidelines. Denying employment would only be justified if an accent would significantly interfere with job performance, such as for a telephone customer service representative.
Even if you can justify an English-fluency requirement in a particular job, in most cases it will be better not to adopt or enforce a policy that limits or prohibits the use of any language in the workplace at all times. California law prohibits such a policy unless the language restriction is justified by business necessity and the employer has notified employees of when and where the language restriction is required to be observed, as well as the consequences of violating the rule.
Under that law, an employer can show business necessity by demonstrating that the restriction is needed for the safe and efficient operation of the business, that the language restriction effectively fulfills that business purpose, and that there is no equally effective alternative practice with a lesser discriminatory impact. Any such policy should be applied to all foreign languages rather than certain select ones and should not apply during nonduty time such as lunch or breaks.
Sandra Rappaport, Esq., is a partner at the San Francisco office of law firm Hanson Bridgett, LLP.