Quirky Question #265, Can I have an English-Only Policy?
Question: Our Company may implement a policy that requires employees to speak in the English language. What risks should we be aware of?
Answer: By Marilyn Clark and Jessie Mischke
There are several legal and non-legal risks your company should consider prior to implementing an “English-only” work rule. National origin discrimination is chief among the legal concerns.
Title VII of the Civil Rights Act of 1964 (and many state and local analogues) prohibits discrimination in employment, including, but not limited to, discrimination based on national origin. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), national origin discrimination encompasses discrimination based on ethnicity, physical, linguistic or cultural traits, and/or perception, and frequently overlaps with other forms of unlawful discrimination. See EEOC Compliance Manual (Dec. 2, 2002), available at http://www.eeoc.gov/policy/docs/national-origin.html. Employers adopting “English-only” policies are subject to risk in this area because individuals may view such rules as discriminatory on their face or discriminatory in effect (e.g., creating a disparate impact).
The EEOC has published several resources related to “English-only” policies, including a regulation and Compliance Manual. The regulation–29 C.F.R. § 1606.7–allows an employer to “have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.” 29 C.F.R. § 1606.7(b). On the other hand, the agency will presume that “[a] rule requiring employees to speak only English at all times in the workplace” violates Title VII. 29 C.F.R. § 1606.7(a).
In its Compliance Manual, the EEOC states that while “Title VII permits employers to adopt English-only rules under certain circumstances[,]” such policies “must be adopted for nondiscriminatory reasons” and should be used in a manner that “relates[s] to specific circumstances in [the] workplace.” EEOC Compliance Manual (Dec. 2, 2002), available at http://www.eeoc.gov/policy/docs/national-origin.html. An employer must further demonstrate that business necessity justifies an “English-only” policy by showing that the rule “is needed for [it] to operate safely or efficiently.” Id.
“[S]ome situations in which business necessity would justify an English-only rule” (according to the Compliance Manual) include:
- “For communications with customers, coworkers, or supervisors who only speak English
- In emergencies or other situations in which workers must speak a common language to promote safety
- For cooperative work assignments in which the English-only rule is needed to promote efficiency
- To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers[.]” Id.
Assuming employers have legitimate, non-discriminatory business necessities which justify “English-only” rules, they face the difficult task of fashioning an appropriately narrowed policy. The EEOC provides an example of what it considers “a narrowly crafted English-only rule” that “does not violate Title VII” in the Compliance Manual. Id. In the example, the hypothetical employer operates an oil refinery and maintains a rule requiring all employees to speak English during emergencies and “while performing job duties in laboratories and processing areas where there is a danger of fire or explosion.” Id. The policy does not apply to discussions between employees in the laboratory and processing areas while they are not performing job duties. The EEOC concludes that this policy is permissible since it is “narrowly tailored to safety requirements.” Id.
Notwithstanding the EEOC’s indication that narrowly crafted “English-only” rules may be appropriate in certain situations, the agency and individuals have challenged an array of employer policies and business justifications, including those that courts have considered similar to the types of necessities described as lawful in the Compliance Manual. When challenged, reviews of “English-only” policies are fact-specific and analyses vary based on the types of legal claims at issue, the particular policy and scope, and the employer’s articulated business necessities and justifications, which adds to the difficulties employers confront when attempting to create their own “English-only” work rules.
The EEOC is not alone in its critique of “English-only” policies. Recently, a National Labor Relations Board (“NLRB”) ALJ held that an employer’s “English-only” rule, which required employees to speak English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required” was overbroad and violated Section 8 of the National Labor Relations Act. Valley Health System LLC v. Morris, JD(SF)-08-15 (March 18, 2015). In the decision, the ALJ applied the NLRB’s standard, e.g., whether the rule “would reasonably tend to chill employees from exercising their Section 7 rights[,]” and determined that the policy was “vague as to time and location” and “infringe[d] on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.” Id. The ALJ was particularly critical of the policy’s application to “all areas to which patients and visitors have access[.]” Id.
The ALJ also determined that even if the EEOC’s analysis applied, the rule was not justified by business necessity. The employer argued that its rule was necessary to “maintain hospital efficiency and minimize disruption in patient care[,]” but the ALJ observed that the rule’s scope went “far beyond patient-care areas” because it extended to conversations “between [employees], staff, customers, visitors, and in non-patient areas” while employees were on duty. Valley Health System LLC v. Morris, JD(SF)-08-15 (Mar. 18, 2015).
Given the risks associated with “English-only” policies, careful deliberation is warranted. If your company elects to move forward with such a rule, it may wish to re-consider the risks, the company’s legitimate business needs, and the breadth of the proposed rule. It may also wish to consult with legal counsel.