Tension at the ski resort is high, with a number of employees complaining that they believe their Spanish-speaking co-workers are deriding them in Spanish. Suspecting that the co-workers are deliberately speaking in their mother tongue to cut other employees out of conversations, you’re tempted to require all workers to speak only English at the resort.
What should you do? Can you lawfully implement an English-only policy among all employees, knowing that the Spanish-speakers are bilingual and can also speak English? Or, would you be risking a potential lawsuit brought by the Spanish-speaking employees, claiming unlawful discrimination under Title VII of the 1964 Civil Rights Act?
With more than 31 million people in the United States speaking languages other than English, the work force is changing, and many mountain resorts now employ bilingual workers, many of whom are instructed to speak only English while on the job. Although employers may adopt such rules “innocently,” without any discriminatory intent, more and more bilingual employees are taking their employers to court, claiming such English-only rules violate federal law prohibiting employment discrimination on the basis of race, color, religion, sex or national origin. These workers interpret the concept of national origin to encompass an individual’s language rights and claim that English-only rules are little more than thinly veiled acts of unlawful discrimination.
Although Congress has never defined the term “national origin,” the Equal Employment Opportunity Commission (EEOC) has issued guidelines restricting the use of English-only workplace rules. The EEOC’s guidelines require that employers demonstrate a business necessity for implementing an English-only rule. In addition, the employer must advise employees when English is required, and spell out the consequences for violating the rule.
According to the EEOC, any English-only rule that prohibits employees from speaking their native language at all times violates Title VII. Under the EEOC’s guidelines, such a rule is a burdensome condition of employment.
In contrast to the EEOC’s position, several courts have held that English-only rules do not violate Title VII and that such rules do not discriminate against bilingual workers who can speak English. This conflict between the courts and the EEOC has left many employers confused, wondering whether their English-only rules violate federal law. And the courts have responded with many seemingly inconsistent rulings.
There are, however, a handful of guidelines based on existing case law for instituting English-only rules. Using these should prevent misunderstandings that could land you in court:
- Be prepared to show your English-only rule is justified by business needs.
- Be sure to tell employees of any policy requiring them to speak English and the consequences of violating the rule.
- Make sure that the English-only policy does not adversely affect the accessibility or delivery of services to the public.
- Be sure that your English-only policy is consistently enforced and applied to all languages and to all employees.
- Put the policy in writing and train managers and supervisors in the enforcement of the policy.
It’s advisable that the policy not be applied at all times because the courts have found it unfair to completely prohibit employees from speaking their primary language. For example, there is no real justification for prohibiting your Polish-speaking staff from chatting in their native tongue in the lunchroom. This goes hand in hand with another recommendation: Don’t make the policy any broader than it needs to be.
In a country of immigrants, the conflict between an employer’s desire for synergy in the workplace and the courts’ conflicting decisions over the enforcement of English-only rules has put employers in an unenviable position. But, by taking a few steps to make sure employees understand and know of a policy that is in line with current law, potential conflicts can be resolved without having to go to court.
Web Resources
www.eeoc.gov—EEOC information; links to resources, regulations and policy guidance.
www.ahipubs.com—Contains brief answers to management dilemmas
members.aol.com/mattlawfrm/mattlaw—A summary of employment laws, guidelines, a sample employee handbook and more.
hrlawforum.com/cgi-bin/ultimatebb.cgi—Human resource management forum. Includes articles on employment law.
www.contilaw.com—Employment law, public employee policies and handbooks and links.
