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English-Only Practices

According to the last United States Census taken in 2000, California leads the nation in terms of ethnic diversity. In 2000, 32% of California’s population was Hispanic, while another 11% was Asian (www.census.gov). In part, it is this cultural diversity that makes California so unique and progressive, as compared to many other states. Whether or not you value the growing ethnic and cultural diversity in the state, it is here to stay, and as an employer, you will need to consider the implications it has on the workplace.

One of the newest and fastest developing areas of California employment law is the issue of so-called “English-only” practices. In this article, we will look at the development of the federal and state laws that prohibit employers from requiring all employees to speak English in the workplace, as well as the instances in which employers may be allowed to institute English-only rules. Finally, we will offer some advice to employers on what to consider before adopting such a policy and what to consider in navigating the multilingual workplace.

The Legal Framework

Under federal law, Title VII of the 1964 Civil Rights Act, commonly referred to as “Title VII”, protects employees who have been subject to adverse employment action such as firing or demotion because they speak a foreign language. Although Title VII does not specifically protect those who speak another language, it does provide that an employer cannot discriminate against an employee based on his or her national origin. Employees have challenged English-only rules in the workplace based on this Title VII prohibition against national origin discrimination.

In 2006, the Equal Employment Opportunity Commission (“EEOC”) received 8,327 charges of national origin discrimination. 8,181 charges were resolved, and monetary benefits for charging parties totaled $21.2 million (not including monetary benefits obtained through litigation). (For more information, visit the federal Equal Employment Opportunity Commission’s website at www.eeoc.gov/origin.)

In California, employees are protected from discrimination based on national origin by the Fair Employment and Housing Act, commonly referred to as “FEHA.” Unlike Title VII, however, California law was amended in 2002 to specifically prohibit an employer from adopting or enforcing a policy that limits the use of any language in the workplace, except in limited circumstances. While on paper California law seems to go one step further than the federal law that protects employees from workplace discrimination, in practice, we have not seen the California version provide any greater protections to employees than Title VII.

Is English-Only Ever OK?

At this point you may be wondering whether there are any circumstances in which an English-only rule is allowed in the workplace. The answer to that question, under both California and federal law, is “yes.” Both the federal Title VII and the California FEHA allow an employer to enact an English-only rule when it is adopted for nondiscriminatory reasons and constitutes a “business necessity”. The exception is not as straightforward as it sounds, however. There are several hurdles that employers must address before determining that the English-only rule fits within the business necessity exception.

To justify an English-only rule under the business necessity exception, the employer must first be able to demonstrate that the policy is necessary to the safe and efficient operation of the business. Employers enacting such policies must first consider all possible alternatives to issuing an English-only policy. If the employer determines that there is no other way to achieve the business need, it must make the policy as narrow as possible.

For example, if employees must speak English at work in order to communicate with customers, the employer cannot enact a blanket prohibition on speaking another language. Rather, the employer would have to allow other languages to be spoken during breaks and when making personal calls. In addition, the employer must provide clear and detailed notice to employees of the English-only policy, including notice of when and where they may use other languages.

What is a “Business Necessity”?

By now, employers reading this article are probably even more confused as to when an English-only is permissible and when it is prohibited. Unfortunately, there are no hard and fast rules to apply in this situation. Rather, the permissibility of such a policy depends on a number of factors including the nature of the employer’s business, the nature of the employment, the manner of communication between employees and customers, the purpose of the English-only policy, and whether the policy implicates safety issues in the workplace. Perhaps the best way to get a feel for which English-only rules are and which are not permissible is to consider some examples of employer policies that have been challenged by employees in court. Please note that all of the following examples are based on challenges to Title VII, not to the California fair employment laws, as the author is unaware of any California cases that deal with the validity of an English-only policy under FEHA.

One example of a permissible English-only policy is illustrated in the 1993 Ninth Circuit Court of Appeals case Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993). In that case, an employer fired several Hispanic employees for speaking Spanish on the job because they were making racist comments in Spanish about other employees. The fired employees then alleged national origin discrimination but were unsuccessful, and the court upheld the employer’s right to prohibit employees from speaking another language at work. In Garcia, the English- only rule only applied when the employees were working, was inapplicable to lunch, breaks, or an employee’s own time, and enhanced product safety of employees on production line under particular work circumstances

In Cosme v. The Salvation Army, 284 F.Supp.2d 299 (D. Mass. 2003), a federal district court in Massachusetts upheld an employer’s policy which required employees to speak English to the best of their ability when in the workplace. In its ruling, the court focused on the fact that the policy did not apply when the employees were in nonworking areas (such as the lunchroom, break room, and restroom) and that the employer provided notice of the policy by including it in the employee handbook.

One example of an impermissible English-only policy resulted in an investigation by the U.S. Equal Employment Opportunity Commission, or the EEOC, followed by a substantial settlement of $1.5 million. That case began in 2000, when the Colorado Central Station Casino issued a blanket English-only policy that prohibited employees in the housekeeping department from speaking any other language at any time. One employee, who was afraid that she would be fired for speaking Spanish to her husband, a monolingual Spanish speaker who visited with her during break, took her case to the EEOC. The EEOC filed a class action suit against the employer, which eventually led to a settlement of $1.5 million by the employer. (For more information, see http://www.eeoc.gov/press/7-18-03a.html.)

Another example of an impermissible English-only policy is found in Maldonado v. City of Altus, No. 05-6062 (10th Cir. Jan 11, 2006) in which the employer adopted an English-only policy that provided exceptions for non-work-related communications. The court decided that, based on the evidence provided by the employees, the policy, as the employer applied it, amounted to a blanket prohibition on speaking another language.

The Case to Watch: EEOC v. Kidman

Currently the Ninth Circuit Court of Appeals is in the process of determining whether an employer’s English-only rule violates Title VII. Employers will want to pay close attention to its decision. In 2003, the owner of a diner located next to a Navajo reservation enacted an English-only policy because employees were making lewd comments in Navajo about the customers, the majority of whom also spoke Navajo. The owners assert that the English-only rule is a business necessity because the comments made by the employees in Navajo were driving away business. The employees who brought the case, however, allege that they never made any lewd comments and were fired for speaking Navajo, in violation of Title VII. The case, EEOC v. Kidman, was argued before the Ninth Circuit Court of Appeals in October 2006, and a decision is expected soon. We will be sure to keep you updated as to any developments in the case so check back soon!

Advice For Employers

As you have realized by reading this far, when it comes to the permissibility of English-only rules in the workplace, the devil is in the details. The facts of each individual situation dictate whether or not an English-only policy violates employees’ rights under federal or state law. The best employers can do is to follow the guidance provided by courts that have evaluated English-only policies and to take the following steps:

• Before instituting an English-only policy, consider all feasible alternatives and document all alternatives that were considered

• Prior to enacted an English-only policy, be certain that you can articulate a clear business reason for doing so that relates to safety and/or the efficient operation of the business.

• Do not prohibit the speaking of other languages during break times.

• Document any language policies that are instituted from the inception in clear and concise terms —be sure to provide clear guidelines for employees for when and where the rules apply.

• Incorporate any English-only policies into the employee handbook and if no handbook exists, make sure that employees have actual notice of the policy from the outset of their employment.

• Consider offering incentives to employees who learn to speak other languages or offer an English training program to employees who are not fluent in English — this will decrease the need for English-only policies and will encourage communication in the workplace.