You say Vτομάτα. I say Tomato.

English-Only Rules in the Workplace

English-only rules in the workplace are a growing trend. Although there may be various legitimate business needs for such rules, companies interested in implementing an English-only rule must be cautious of the legal issues involved. If they are not written and enforced reasonably, English-only rules could lead to claims of national origin discrimination, resulting in damages to the company along with other intangible losses.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on national origin. If a company does not have adequate justification for instituting the rule, an English-only rule can amount to national origin discrimination. According to the Equal Employment Opportunity Commission (EEOC), national origin discrimination includes "the denial of equal employment opportunity. . . because an individual has the physical, cultural, or linguistic characteristics of a national origin group." Likewise, the federal courts have held that discrimination on the basis of language can be discrimination on the basis of national origin.

So how does a company avoid violating Title VII when implementing an English-only rule? First, the rule may not be adopted for a discriminatory purpose. For example, a rule would be unlawful if its purpose was to treat Hispanics differently or avoid having Hispanics in the workplace, or if it prohibited speaking Spanish but not other languages. In other words, the rule must be neutral and enforced equally.

Second, the rule should not be overly broad. The EEOC distinguishes between (i) rules requiring employees to speak English at all times in the workplace and (ii) rules requiring employees to speak English only at certain times in the workplace. The EEOC takes the position that rules requiring that English be spoken at all times in the workplace (i.e. even during breaks and other non-working times) are a "burdensome term and condition of employment." The EEOC will presume that such a rule is invalid, and it will be subject to close scrutiny. In contrast, it is the EEOC’s position that an English-only rule applied only at certain times is permissible, if the employer (i) provides notice of such rule to its employees and (ii) establishes a business necessity for the rule (i.e. can show that it relates to "specific circumstances in the workplace").

The EEOC's position tracks the most common method of showing that an English-only rule is discriminatory under Title VII, called disparate impact. Under a disparate impact theory, the plaintiff must establish that an employer's facially-neutral English-only rule harms his or her protected class - Hispanics for example - more than another, typically unprotected, group. If a plaintiff can demonstrate a 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. Further, when determining the rule's impact, Employers should keep in mind that an English-only rule will likely impact non-English speakers more than bilingual employees.

If an employer is challenged on its English-only rule, it must be prepared to present evidence of the business necessity for the rule. In this regard, the EEOC Compliance Manual suggests that an employer (i) weigh its justifications for implementing the rule against the potential for discriminatory effects and (ii) consider possible alternatives to the rule. If there is an alternative that will meet the business reason for the rule, the alternative should be used. When considering an English-only rule, employers should look at, among other things, (i) whether it has evidence of safety justifications for the rule (i.e. whether specific incidents can be cited); (ii) whether it has evidence of other business justifications for the rule, such as English is necessary for proper supervision or for effective communication with customers; (iii) the likely effectiveness of the rule in meeting its objectives; and (iv) the English proficiency of workers affected by the rule (if most can speak some English, the rule will have less of an effect). If employers avoid going overboard with English-only rules, they should be able to avoid unnecessary impact on employees who are not fluent in English.

Michael Dalrymple is an associate in the Firm's Labor Practice Group. His practice includes a wide variety of employment litigation and a focus on issues arising under the Fair Labor Standards Act.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.