English-Only Rules in the Workplace Can Be a Legal Minefield

A clothing retailer accused of forbidding three San Francisco workers from speaking Spanish at work and then allegedly retaliating when they complained is being sued for civil rights violations and discrimination.

Filed by California's Department of Fair Employment and Housing on behalf of three employees of Forever 21's Union Square store, the lawsuit claims the company's HR department "was dismissive and indifferent" to the workers' concerns, repeatedly ignoring workers' calls and voicemail messages and "failing or refusing to take corrective action."

The two cashiers and a maintenance worker were threatened with termination, disciplined and subjected to extreme scrutiny, the lawsuit said.

Los Angeles-based Forever 21 denied having an English-only policy in its stores, telling The San Francisco Chronicle that it supports inclusion and diversity.

[SHRM members-only HR Q&A: Can a California employer have a policy that requires employees to speak only English while at work?]

Business Necessity

Language diversity is a hallmark of the Golden State, which has the country's highest percentage of residents who speak only Spanish—13.7 percent, or about 4.3 million people, according to U.S. Census figures.

California law, however, does allow employers to limit or prohibit the use of any language on the job, provided the restriction is justified by "business necessity."

An employer must be able to show that its language policy fulfills "an overriding legitimate business purpose," such as being "necessary to the safe and efficient operation of the business."

State law also mandates that employers inform workers when the restriction is in effect and then let them know the consequences for violating it.

Employers that want to implement a language policy must be able to show that it stems from more than a mere preference for English in the workplace, said John Zaimes, an attorney with Mayer Brown in Los Angeles.

For example, in workplaces such as construction sites and emergency rooms—where safety and communication are critical—business leadership could make a compelling argument about the necessity of having employees communicate in a single language.

Little Guidance

California law, Zaimes said, "leaves a lot of room for argument about whether a particular restriction is necessary for the safe and efficient operation of the business." And courts offer scant guidance for interpreting which conditions constitute a business necessity for mandating an English-only policy.

In a 2011 decision, the California Court of Appeal sided with Pacific Bell Directory, which had fired a Filipino employee who spoke Tagalog on the job.

The worker sued, claiming she was fired for not speaking English. However, Pacific Bell Directory said she was terminated for violating anti-harassment policies because she bullied co-workers—in Tagalog.

The business said its English-only policy was necessary so that English-speaking managers could understand workers' conversations and prevent such harassment.

"To me, that's a pretty low standard," Zaimes said. "Because any employer can say, 'Yeah, we need people to speak English so we can properly supervise them.' "

'Proceed with Caution'

"At least in California, the wind is blowing against having an English-only policy," said Tyler Paetkau of law firm Hartnett, Smith & Paetkau of Redwood City. "Generally, the advice is to proceed with caution."

If businesses are determined to institute a language policy, the terms should be put in writing, reviewed with managers and supervisors, and crafted to be "very limited in terms of prohibiting other languages," Paetkau said. Businesses that implement English-only policies should include employee training with mandated sexual harassment-education programs.

Businesses keen on adopting English-only policies might be best served by finding a practical middle ground, such as requiring retail employees to speak English on the sales floor unless customers initiate conversation in another language or ask for help from someone who speaks their native language.

HR professionals should consider whether there's a clear-cut business necessity for requiring workers to use English on breaks when making personal calls, as one of the Forever 21 employees claimed in the lawsuit that he was required to do.

Zaimes advises HR professionals to "consider being a little bit of a devil's advocate" if their employer has adopted a broad language policy by pointing out that it can make the business vulnerable to allegations of discrimination and retaliation if workers who speak a language other than English are disciplined, demoted or terminated.

Even if the charges are ultimately unfounded, the exoneration can come with negative publicity, legal defense costs and aggravation.

"I just don't think many employers want to tangle with this at all because it's such a minefield," he said. "There are no hard and fast rules here. It's still an evolving area of the law."

June D. Bell, a regular contributor to SHRM, covers legal issues for a variety of publications.

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