Chief among the Equal Employment Opportunity Commission’s (EEOC) current priorities are (1) eliminating barriers in recruitment and hiring and (2) protecting immigrant, migrant, and other vulnerable workers. It therefore should come as no surprise that the EEOC might be setting its sights on revising its guidance relating to English-only policies since those policies arguably implicate both of its top two priorities. So what does the EEOC’s guidance currently say? What are the agency’s concerns? And what precautions can you take now to minimize your risks in the future? 
EEOC’s current guidance
Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on national origin, among other protected characteristics, provides that a policy or practice that is job-related and consistent with business necessity is permissible, even if it’s disadvantageous to certain employees on the basis of their national origin, if no other alternative would satisfy the business necessity with less or no disadvantage to the protected group. Of course, the employer bears the burden of showing that a policy or practice is job-related and consistent with business necessity. The employee must then show that an alternative policy or practice would fulfill the business need without a disparate impact.
As the EEOC has long stated in its compliance manual, “An English-only rule is justified by ‘business necessity’ if it is needed for an employer to operate safely and ef ficiently.” To illustrate, the EEOC provides the following examples of situations in which business necessity would justify an English-only rule:
- Communications with customers, coworkers, or supervisors who only speak English;
- Emergencies or other situations in which workers must speak a common language for safety reasons;
- Cooperative work assignments in which the English-only rule is needed to promote efficiency; and
- To allow a supervisor who speaks only English to monitor the employee’s performance if his job duties require communication with coworkers or customers.
EEOC’s public meeting
On November 13, 2013, management-side attorneys and representatives from immigrants’ rights groups participated in a public meeting with the EEOC to discuss the statutes and administrative guidance aimed at deterring national original discrimination. During the meeting, participants advised the EEOC that its guidance on the topic, particularly as it relates to English-only policies, needs updating. Thomas A. Saenz, president and general counsel for the Mexican American Legal Defense and Education Fund (MALDEF), noted that bilingualism has become a target of discrimination in the workplace. He told the EEOC, “We increasingly see a pattern where Latino workers are segregated to back office, nonpublic contract positions and prevented from moving to public contract positions.”
Commissioner Jenny R. Yang noted, “National origin discrimination—whether it takes the form of harassment against farm workers, segregation of Vietnamese workers in lower-paying factory jobs, or not hiring a qualified applicant from Iran because she didn’t conform to a retailer’s preferred image — should be tackled through coordinated enforcement, outreach, and training efforts.” She added, “We are confident that the commission will benefit from the information obtained today.”
Bottom line
Although the EEOC’s guidance hasn’t yet changed, all signs seem to indicate that it will be modified in the coming years. In the meantime, expect to see the EEOC aggressively pursuing national origin discrimination claims, particularly when those claims are based on an English-only policy. To avoid being the agency’s next target, take the following steps:
- Check the applicable state and local law. Like federal guidance, state and local laws are changing, and some states have enacted laws governing English-only workplace rules. Before you draft policies on language requirements, review the statutes and ordinances in your city and state to make sure your policies comply with the applicable laws.
- Provide employees notice of your policy or practice by putting it in writing, publishing it in your employee handbook, and training new hires on it during orientation. The EEOC has stated, “An employer should ensure that affected employees are notified about an English-only rule and the consequences for violation.” You may also want to consider informing employees about the policy by posting it on a bulletin board, discussing it during a meeting, or attaching a copy of it to a companywide e-mail. Also consider making the policy available in languages other than English.
- During interviews, explain the policy and ask job applicants if they can comply with it. To minimize discrimination claims, ask all applicants the same question, even if they seem fluent in English. Do not ask any applicant if English is his first language, what type of accent he has, or any other questions about his national origin or ethnicity.
- Before implementing an English-only policy, weigh your business justifications against possible discriminatory effects. Consider (1) the evidence of safety considerations or other justifications for the rule (such as supervision or effective communication with customers), (2) the likely effectiveness of the rule in carrying out your objectives, and (3) the English proficiency of the employees who currently do the work and the workers who will be affected by the rule.
Amanda Shelby, an employment law attorney with Faegre Baker Daniels. She may be contacted at amanda.shelby@FaegreBD.com.