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English-Only Workplace Rules May Be Too Big a Risk

Nov. 27, 2018
Increasing regulatory scrutiny and a more diverse workforce require greater tolerance by employers.

Just a few years ago it was not that unusual to hear widespread reports of employers who wanted to maintain English-only workplaces, and the finely-parsed legal requirements routinely applied that allowed it to happen. Changes in the law and the country’s demographics are making it increasingly difficult to justify such requirements.

Even when well-intentioned, these policies may serve as the basis for discrimination claims against employers or be loaded in with other kinds of claims for additional penalties. If you have an English-only policy and state or federal agencies find you have discriminated on the same population regarding wages and working conditions, for example, you can expect they also will scrutinize any workplace for policies aimed at the same protected group.

On your side if you do have such a policy, in general the rules requiring employees to speak English in the workplace are seen as violating federal civil rights or other anti-discrimination laws. Exceptions exist only when the employer can show a legitimate, non-discriminatory reason for the rule and you can establish that it is practical for employees to comply with the restrictions.

Non-discriminatory reasons for English-only rules may include maintaining employee morale or preventing alienation of employees, assisting management in supervising employees, and following safety rules and instructions in hazardous environments. Proficiency in the English language also may be a permissible job requirement so long as it is a key component of the job position, notes Dana N. Berber, an attorney with the Akerman law firm.

However, employers need to keep in mind that the Equal Employment Opportunity Commission (EEOC), in its regulations and published guidance on national origin discrimination, has stated that any rule requiring employees to speak English at all times is simply assumed to be in violation of anti-discrimination laws.

This is something that should be taken seriously. EEOC in the last few years has pursued a national strategic plan where rooting out ethnic and national origin discrimination is a top priority. This means an English-only policy can easily become a ticking time bomb for any employer.

“Blanket rules—requiring employees to speak only English at all times without qualifications—will rarely be justified,” Berber points out. EEOC guidance permits an English-only policy in the workplace if the rule is applied only in limited situations, is justified by business necessity, and the employer has clearly notified employees of the policy and the penalties for violating it.

EEOC asserts that a business necessity for imposing an English-only policy can arise only when English is needed for the employer to operate safely and efficiently, in dealing with customers or co-workers who only speak English, or during emergencies.

The U.S. Department of Labor (DOL) also limits English-only policies under similar criteria, but adds that employers also can mandate such workplace rules to allow supervisors who speak only English to monitor the performance of employees whose job duties require communication in English.

“Despite guidance from the EEOC, DOL and other government agencies, there is no bright-line rule for employers regarding English-only policies,” Berber explains, adding that state and federal courts are continuing to grapple with the issue on a case-by-case basis.

Finding the Right Reason

In New York State, courts have held that English-only rules are not considered discriminatory if a legitimate business justification can be shown. New York courts have further explained that so long as an employer does not restrict employees’ language during their personal breaks and does not prohibit some non-English languages in the workplace while permitting others, then English-only rules may be permissible if they are needed to ensure workplace efficiency and cooperation.

A New Jersey appellate court recently held that while such workplace policies are not necessarily unlawful, they can be proven to violate the New Jersey Law Against Discrimination if an English-only rule is found to have been used as a pretense for discrimination on the basis of national origin, ancestry or another protected characteristic, such as religion.

That same court also stated that a discharge for speaking another language in the face of an English-only or mainly-English rule would not be considered alone to be a violation of New Jersey or federal anti-discrimination laws.

Some states, however, have stricter rules to limit the use of English-only policies. The California Fair Employment and Housing Council issued rules that went into effect last July permitting English-only rules only in situations where an employer can show an overriding and legitimate business purpose that makes language restriction necessary for safe and efficient operation.

In addition, the new regulation requires that English-only can be sustained if no alternative method exists that can accomplish the employer’s goals but has less of a discriminatory impact. California’s new standard expressly prohibits English-only requirements from being imposed during off-duty hours or employee break times and requires that employees be informed about the details of the policy before being subjected to any discipline for their violation.

Berber warns that employers today should proceed very carefully before implementing English-only workplace policies and should write such policies narrowly, including solid business justification. Even unwritten or informal policies, like a supervisor encouraging employees to speak English, may be construed as an English-only rule that improperly discriminates against certain employees.

Remember that such incidents eventually can lead to unwelcome scrutiny by the EEOC and other government agencies. When they accompany charges of other kinds of discriminatory practices, they will only add to your burden of misery.

“Any practice that effectively discriminates against non-English speaking employees can leave employers susceptible to discrimination claims, so these policies should be carefully evaluated for any possible discriminatory effects and effective alternatives,” Berber stresses.

Because of the complicated and changing nature of today’s workplace laws, she urges employers to seek advice from legal counsel before implementing any new procedure or policy that may treat certain groups of employees differently based on their language abilities.

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