Vol. 45, No. 9
English-only rules in the workplace can be legal, when executed correctly.
English-only workplace rules have garnered considerable media attention recently, perhaps because the number of complaints filed with the Equal Employment Opportunity Commis-sion (EEOC) challenging English-only policies has almost tripled in recent years.
Despite this increased scrutiny, many employers across the country continue to implement English-only policies because they may benefit employers in several ways, including:
- Reducing ethnic tension, especially where separate languages have segregated an employer’s workforce.
- Improving employees’ English proficiency, especially in companies with a primarily English-speaking customer base.
- Enhancing the effectiveness of employee supervision.
- Promoting safety and efficiency in the workforce.
Despite these potential benefits, English-only policies have their drawbacks. The EEOC has issued interpretive (although non-binding) guidelines providing that, in certain instances, English-only rules may constitute national origin discrimination, a violation of Title VII of the 1964 Civil Rights Act. Only a few federal courts have addressed this issue, and those courts did not present a uniform standard for assessing the validity of English-only rules. As a result, the state of the law remains unsettled.
Employers, therefore, should proceed with caution before instituting English-only policies.
English-Only Rules vs. Title VII
Both the federal courts and the EEOC agree that employees are entitled to challenge the validity of English-only policies in court under Title VII. However, the agency and the courts do not always agree on how to determine if a policy violates the law. This debate will have significant ramifications for the future of English-only policies.
The EEOC favors a legal standard that presumes certain English-only policies to be discriminatory; such a standard places a significant burden of proof upon employers to justify these policies. Some federal courts, by comparison, apply a legal standard that makes it easier for employers to defend English-only policies.
The courts and the EEOC agree that employees may challenge English-only policies under two different legal theories: disparate treatment and disparate impact.
Under the theory of disparate treatment, workers allege that an employer intentionally discriminated on the basis of national origin by adopting an English-only rule. Under the theory of disparate impact, employees allege that employment practices that appear to be neutral had the effect of disproportionately discriminating against a protected minority group. Many employees choose to sue under the theory of disparate impact.
The U.S. Supreme Court has determined that disparate impact suits must follow a three-part test. The employee first must prove that the challenged employment practice adversely affects a protected class. Then, the employer must prove that the challenged practice is job-related and represents a business necessity. If the employer meets this burden, the employee may prevail by offering an alternative employment practice that meets the employer’s needs and has a less discriminatory impact than the challenged practice.
This three-part test, followed by the federal courts, places the initial burden of proof upon the employee. In contrast, the EEOC guidelines presume that English-only rules have a disparate impact on employees who do not use English as their primary language. This has the practical effect of shifting the burden of proof to employers.
Under the EEOC guidelines, once an employee proves that an employer has an English-only rule in place, the employer is on the defensive. If the rule applies at all times (including breaks, lunch hours, etc.), it is presumed to violate Title VII and will be closely scrutinized. If the rule applies only at certain times and places, the employer must prove that business necessity justifies the rule.
These EEOC guidelines have failed to attract universal support from the federal courts. Indeed, a few courts have specifically disagreed with the agency’s attempt to alter the traditional burden of proof allocations in disparate impact cases. For examples, see Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993); Kania v. Archdiocese of Philadelphia, 14 F. Supp. 2d 730, 735 (E.D. Pa. 1998); and Long v. First Union Corp., 894 F. Supp. 933, 940 (E.D. Va. 1995), affirmed 86 F.3d 1151 (4th Cir. 1996).
The fact that some courts have decided to follow the traditional burden of proof allocation in disparate impact cases is good news for employers. However, the possibility remains that other courts will adopt the EEOC’s position. Indeed, two federal district courts recently deferred to the EEOC guidelines when considering the validity of English-only rules. (See E.E.O.C. v. Premier Operator Servs. Inc., 75 F. Supp. 2d 550, 556, N.D. Tex. 1999 and E.E.O.C. v. Synchro-Start Products, 29 F. Supp. 2d 911, 913-15, N.D. Ill. 1999.)
Until the issue of burden of proof is resolved more definitively, employers should adopt English-only rules only when a legitimate business justification exists.
Business Reasons For English-Only Rules
When contemplating whether an English-only rule would serve a legitimate business interest, common sense should guide employers. For example, a rule requiring employees to speak English while conversing with co-workers on their lunch break and out of the presence of customers is unlikely to be viewed as a legitimate business consideration. By contrast, a rule mandating that employees speak English when in the presence of English-speaking customers could reasonably be justified as a business necessity.
To recap, some of the most common reasons why employers adopt English-only rules in the workplace are to reduce ethnic tension, improve employees’ English proficiency, enhance the effectiveness of employee supervision and promote safety and efficiency in the workforce. Courts have held that each reason provided adequate justification for instituting an English-only rule, although the EEOC asserts that an employer’s business need must be sufficiently compelling to override any disparate impact that an English-only rule might have on minority employees.
One of the most common reasons for employers to adopt English-only rules is to enhance workplace safety. Indeed, an employee’s ability to effectively communicate with other employees in the workplace can be vital in industries such as construction, where communication problems could lead not only to million-dollar mistakes but to the loss of human life. In these situations, it is likely that an English-only policy would be justified by business necessity.
Perhaps the most controversial justification for adopting an English-only rule is to reduce ethnic tension. The EEOC suggests that English-only rules may actually increase ethnic tension in the workplace, rather than reduce it. Recent events seem to justify the EEOC’s position and indicate that English-only rules may sometimes have a divisive effect in the workplace.
For example, a few months ago, Air France instituted a rule requiring its pilots (who speak a variety of different languages) to speak English exclusively when communicating with air traffic controllers at Charles de Gaulle Airport in Paris. Air France contended that this policy would make it easier for pilots and air traffic controllers to communicate, which in turn would reduce the potential for airline accidents.
Despite Air France’s contentions, some employees opposed the English-only policy because they believed they had the right to speak in their native French tongue while on the job. Other employees suggested that the English-only rule heightened communication problems between pilots and air traffic controllers because not all of Air France’s employees were proficient in speaking English. In the wake of protests by pilots, air traffic controllers and their unions, Air France discontinued its English-only policy 15 days after its implementation, The New York Times reported.
Notwithstanding the EEOC’s position that English-only rules may exacerbate ethnic tensions, courts have held that the promotion of workplace harmony is an adequate business justification for implementing an English-only rule. As one court has noted, “[a]n insistence that employees speak English in the workplace serves the . . . business purpose of minimizing the sense of alienation and resulting hostility felt by employees and customers who don’t speak or understand the foreign language.” ( Prado v. L. Luria & Son, Inc., 975 F. Supp. 1349, 1357, S.D. Fla. 1997) However, because only a handful of federal courts have addressed this issue, it is still too early to definitively state that the promotion of workplace harmony is always a legitimate justification for adopting an English-only rule.
Bilingual Employees and Disparate Impact
Another area of uncertainty is determining which employees have standing to challenge the validity of English-only rules. Many courts have indicated that English-only rules can have an adverse effect on non-English speaking employees and employees who are not proficient in speaking English.
However, some courts have concluded that English-only rules do not adversely affect bilingual employees in certain situations. According to these courts, employees who can fluently speak English—in addition to their primary language—are able to comply with an English-only rule. Thus, the employee’s observance or non-observance of the rule is a matter of personal choice. Consequently, these courts conclude that an English-only rule does not discriminate against bilingual employees because they can voluntarily comply with the rule. For examples, see Garcia v. Spun Steak Co., 998 F.2d 1480, 1487 (9th Cir. 1993); Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980); Long v. First Union Corp., 894 F. Supp. 933, 941 (E.D. Va. 1995), affirmed, 86 F.3d 1151 (4th Cir. 1996); and Kania v. Archdiocese of Philadelphia, 14 F. Supp. 2d 730, 733-34 (E.D. Pa. 1998).
On the other hand, at least one court has found that English-only rules can have a disparate impact on bilingual employees. In part, this court followed an argument from the EEOC that English-only policies bar bilingual employees from speaking the language in which they are best able to communicate; thus, these employees face a disproportionate risk of termination for violating an English-only rule. (E.E.O.C. v. Premier Operator Servs. Inc., 75 F. Supp. 2d 550, 557, N.D. Tex. 1999)
Further, another federal district court found that an English-only rule may have an adverse impact on bilingual employees who can readily comply with such a rule. (E.E.O.C. v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911, 913 (N.D. Ill. 1999)
Tips for Avoiding Title VII Liability
Although many federal courts have rendered pro-employer decisions, issues surrounding English-only rules are far from settled. Until more federal appellate courts decide this issue, employers should continue to exercise caution. Here are some tips to minimize legal exposure:
- Avoid requiring the use of English at all times and in all areas of the workplace. The EEOC is more likely to challenge—and the courts are more likely to invalidate—English-only rules that apply to non-working areas or non-working time. There is rarely a legitimate business justification for such broad rules.
- Enforce English-only rules fairly and consistently. The EEOC guidelines indicate that English-only rules may create an atmosphere of inferiority, isolation and intimidation that could result in a discriminatory working environment. Therefore, employers should be sure to enforce English-only rules in a manner that does not create a hostile environment for employees whose primary language is not English. For example, employers should avoid unfairly punishing bilingual employees for an accidental “slip of the tongue” (such as when a bilingual employee switches in mid-conversation from speaking English to another language).
- Ensure that there is a true business necessity. Recent case law demonstrates that at least some courts will follow the EEOC guidelines and immediately require employers to justify the validity of an English-only rule. Consequently, employers should always have a significant business justification for adopting an English-only rule.
- Communicate the English-only rule to employees. EEOC guidelines state that employers engage in national origin discrimination if they fail to inform employees about an English-only rule, then discipline employees for violating the rule. Therefore, employers should be sure to provide employees advance notice before implementing an English-only rule.
To ensure that employees fully understand the scope of the rule, communicate the rule in both English and the language in which employees are most comfortable speaking. The notice should explain to whom the rule applies, when it applies and the consequences for violations.
Michael H. Roffer is a senior counsel and Nicholas J. Sanservino Jr. is an associate in the Labor and Employment Law Department of Proskauer Rose LLP in New York.