English Only Policies may Discriminate, EEOC Warns

Posted by Charles Middleton on 06/06/2018

Q: A video recently went viral that showed a restaurant patron ranting about how he thought the Manhattan eatery's “staff should be speaking English,” not Spanish. Is there anything that prevents an employer from requiring its employees to speak English?

A: Interestingly, the Equal Employment Opportunity Commission (EEOC) recently filed suit in the Southern District of California alleging that Albertsons Companies Inc. violated federal law when it implemented a policy that prohibited Hispanic employees from speaking Spanish around non-Spanish speakers, including when they spoke to Spanish-speaking customers and during breaks. The EEOC also contends that the employer's managers publicly reprimanded Hispanic employees for speaking Spanish. Finally, the EEOC alleges that the employer acted improperly by failing to take corrective action after multiple employee complaints. In the lawsuit, the EEOC seeks injunctive relief aimed at preventing discrimination in the future. The EEOC also seeks back pay and compensation for non-pecuniary losses for a class of employees who were allegedly discriminated against by the implementation of this policy.

Q: What is the EEOC's position on English-only language policies?

A: Title VII of the Civil Rights Act doesn't specifically prohibit English-only language policies. Nevertheless, the EEOC has taken the position that English-only language policies have the potential to discriminate on the basis of national origin, which would be a Title VII violation. The EEOC's guidance provides that a blanket requirement that employees speak only English is presumed to violate Title VII. Language-restrictive policies may be utilized “only to those specific employment situations for which they are needed to promote safe and efficient job performance or business operations.” The EEOC has stated that the following business necessities could justify an English-only policy: Communications with customers, co-workers, 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; and to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

Q: Can employers make employment decisions based on an employee's accent?

A: According to the EEOC, an employer only should make an employment decision based on an individual's accent if the person's accent “interferes materially with job performance.” To satisfy this standard, the EEOC states that the employer must show that effectively speaking English is required to perform the job duties, and that the individual's accent materially interferes with his or her ability to communicate in spoken English.

Q: What does the EEOC's guidance mean for employers?

A: Employers may adopt and enforce an English-only policy as long as the policy was not put in place for the purpose of discriminating against employees on the basis of their race or national origin, and the policies were adopted to further a legitimate business interest of the employer. If an employer chooses to implement such a policy, the employer still should permit employees to speak their native language where English isn't required for legitimate business purposes, such as when the employee is on break. Importantly, employers must give sufficient notice of a restrictive language policy by informing employees about the new language policy and the consequences for violating it. Finally, it's important to remember that because the EEOC strongly disfavors English-only policies, the policy will be aggressively scrutinized if challenged.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, June 6, 2018