A much-debated issue is whether you may lawfully require employees to speak only English in the workplace. The simple answer is yes. This article will address the circumstances in which you may legally enforce an English-only policy and the potential legal risks that follow.
Status Quo Ante
Employers increasingly ask employees to refrain from speaking languages other than English in the workplace to promote productivity and efficiency and preserve workplace harmony. Certainly, a policy that targets only a particular language or national origin, such as a “non- Spanish” policy, violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on national origin. But what about rules requiring employees to speak English while on the job?
According to the Equal Employment Opportunity Commission (EEOC), the administrative body tasked with enforcing Title VII, English-only rules in the workplace are a presumptive violation of Title VII. The EEOC takes the position that an English-only rule is a burdensome term and condition of employment that warrants close scrutiny. Agency regulations state that English-only rules are presumed to have a disparate impact on certain classes of employees on the basis of their national origin.
Under a disparate impact theory, an employee must establish that an employer’s facially neutral English-only rule harms her protected class — for example, Hispanic — more than another typically unprotected group. If she can demonstrate a disparate harmful impact, the employer must then prove that its policy is consistent with business necessity. In other words, there must be a legitimate reason for the rule.
California federal courts, as well as the majority of other courts, have specifically rejected the EEOC’s position and opened the door for employers to successfully use English-only policies in the workplace.
Carte Blanche on Viable Policies?
Federal courts covering California and other western states have upheld English-only rules in certain circumstances. For example, the leading Ninth U.S. Circuit Court of Appeals case on this issue, Garcia v. Spun Steak Co., held that an employer’s implementation of a rule requiring employees to speak only English while on the job didn’t violate Title VII.
In the case, the employer implemented the rule in response to complaints that certain employees were making derogatory and racist comments in Spanish about non-Spanish-speaking coworkers. The court reasoned that the employer’s policy didn’t create a cognizable adverse effect on the employees who filed the claim because they were bilingual and weren’t disadvantaged by speaking English while working. The court went one step further in making English-only rules more acceptable in the workplace by rejecting the EEOC’s position and concluding that Title VII doesn’t protect workers’ ability to express their cultural heritage at the workplace.
This case marked a change in California’s previous position regarding English-only rules and emphasized the notion that regardless of whether an employer’s policy is justified by business necessity, it will be upheld absent a showing that it creates a harmful impact on a certain class of employees.
Bon Mots for a Successful Policy
To ensure a successful policy that avoids violating Title VII, the following factors should be considered:
- The Rule Must Be Neutral and Enforced Equally. For example, a rule would be unlawful if its purpose was to treat one group differently than another or to avoid employing one particular group in the workplace. Rules that focus on prohibiting one particular language from being spoken in the workplace but not others won’t pass muster under the law.
- The Rule Shouldn’t Be Overly Broad. Courts distinguish between rules requiring employees to speak English in the workplace at all times and rules that require employees to speak English in the workplace only at certain times. For example, a rule that requires employees to speak English at all times would prevent them from speaking any other language even during breaks and other nonworking times — something that can’t be tied to a legitimate business reason. Alternatively, rules that require an employee to speak English only when dealing with customers or when communicating with coworkers during working time are narrowly tailored and can be tied to a legitimate business reason.
- The Rule Should Fit a Business Need. Before instituting an English-only rule, you should identify a business justification for doing so and evaluate whether enforcing the rule will further the identified business need.
Bottom Line
There are many possible justifications for implementing an English-only rule in the workplace, and courts have carved out circumstances in which to do so. You may want to ensure effective communication during working hours between employees and between employees and customers. You may have a need to institute such a rule to ensure safety in the workplace and promote productivity.
However, if you’re thinking about implementing such a policy, you need to look at all of its potential benefits and risks and proceed fairly cautiously. It’s important to keep in mind that while courts have greatly expanded your ability to use English-only rules, court decisions may not insulate you from all potential claims, but they can certainly help you defeat them.
Lauren M. Cooper is an associate with EpsteinBeckerGreen in the Labor and Employment practice of the firm’s San Francisco office. She can be reached at EpsteinBeckerGreen in San Francisco, lmcooper@ebglaw.com.