National Origin Discrimination and English-Only Rules

By Troy D. Thompson

In fiscal year (FY) 2009, the Equal Employment Opportunity Commission (EEOC) received 11,134 charges involving claims of national origin discrimination ― an approximate 57 percent increase since 1999. Although the EEOC has not yet disclosed its statistics for FY 2010, all indications are that these claims continue to rise.

Given that trend, along with increased attention the EEOC has directed toward national origin discrimination claims, it’s important to consider measures you may take now to avoid and/or prepare to successfully defend against these claims in the future. This article briefly discusses the legal framework relating to national origin discrimination claims under federal law and provides a few suggestions on how you can minimize your risk of liability.

Legal Bases for Claims

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination based on, among other things, national origin. The EEOC’s regulations to Title VII define “national origin discrimination” broadly to include the denial of equal employment opportunities because of an individual’s or her ancestors’ “place of origin . . . or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” In essence, Title VII prohibits you from engaging in conduct that has the purpose or effect of discriminating against individuals because of their national origin.

English-Only Policies

Although most employers generally understand their obligations under Title VII and other federal, state, and local antidiscrimination laws, some don’t realize that their English-only policies (which prohibit communicating in languages other than English or restrict the working times and places during which employees may do so) may be unlawful. Indeed, the EEOC’s regulations state that a rule requiring employees to speak only English in the workplace at all times is a “burdensome term and condition of employment” that is presumed to violate Title VII.

The EEOC’s rationale for this rule is based on its view that the primary language of an individual is an essential “national origin characteristic.” Further, it’s the EEOC’s view that a rule that prohibits employees from speaking their primary language at all times in the workplace “disadvantages an individual’s employment opportunities on the basis of national origin” and may create an atmosphere of “inferiority, isolation, and intimidation based on national origin,” which could result in a discriminatory working environment. Therefore, the EEOC presumes that such a rule violates Title VII.

However, the EEOC’s regulations state that you may adopt a rule requiring employees to speak only English at certain times if you can show that the rule is justified by a business necessity. The EEOC’s compliance manual provides the following example:

XYZ Textile Corp. adopts a policy requiring employees to speak only English while in the workplace, including when speaking to coworkers during breaks or when making personal telephone calls. XYZ places Hispanic workers under close scrutiny to ensure compliance and replaces workers who violate the rule with non-Hispanics. Jose, a native Spanish speaker, files a charge with the EEOC alleging that the policy discriminates against him based on his national origin. XYZ states that the rule was adopted to promote better employee relations and to help improve English skills. However, the investigation reveals no evidence of poor employee relations due to communication in languages other than English. Nor are proficient English skills required for any of the positions held by non-native English speakers. Because XYZ’s explanation is contradicted by the evidence, the English-only rule is unlawful.

In light of the EEOC’s views on English-only rules, you generally should avoid implementing a companywide rule prohibiting employees from speaking other languages while they’re at work. To avoid liability, you will have the burden of establishing that your English-only rule is necessary to promote the safe or efficient operation of your business. Speculation or conjecture about possible safety or efficiency concerns is insufficient. Rather, you will need to demonstrate that your concerns are supported by objective evidence. Even under those circumstances, the rule must be narrowly tailored for specific job responsibilities.

English Fluency/Proficiency Policies

You should also be aware that the EEOC takes an equally hard stand against English fluency/proficiency policies. While in many circumstances it may make good business sense for you to require individuals to demonstrate, as a condition of employment, that they can communicate effectively in English (e.g., whether by written or spoken word), the EEOC takes the position that overly broad policies in this regard violate Title VII.

The EEOC states in its compliance manual that the degree of fluency you may lawfully require of employees necessarily differs from one position to the next. Therefore, the agency warns you to avoid applying uniform fluency requirements to a broad range of positions. The EEOC also admonishes employers not to require a greater degree of fluency than is necessary for the relevant position. A lot of employers are critical of the EEOC’s rationale on these issues. Many desire to hire individuals who have strong communication skills that will enable them to grow with their employer organizations and work their way into positions of greater responsibility.

Bottom Line

In evaluating whether to adopt English-only or English fluency/proficiency policies, you should balance your objective business justifications against unintended but possible discriminatory effects. Among other considerations, you should evaluate and document the following before adopting such policies or reevaluating existing policies:

• evidence of safety justifications for the rule;
• evidence of other business justifications for the rule, such as effective supervision or communication with customers;
• likely effectiveness of the rule in carrying out the identified safety or business concerns;
• whether other, less burdensome measures exist to satisfy the safety or business concerns; and
• the current English proficiency of workers affected by the rule.

By conducting a thorough analysis in this manner, you will be in a much better position to establish defenses to a charge of national origin discrimination.

Troy D. Thompson is a partner with Axley Brynelson, LLP. He can be reached at (608) 283-6746 or tthompson@axley.com .