In today's increasingly diverse workforce, it’s not at all unusual for a company to have employees whose native tongue is a language other than English. In some workplaces, this has given rise to problems.
Consider these situations:
Two cashiers chat with each other in Spanish while dealing with English-speaking customers. A customer later complains about rude behavior.
Three members of a work team converse in Portuguese. A fourth member, who doesn't speak Portuguese, tells a supervisor she thinks the other three are making fun of her.
An employee, seeing a falling object, yells "Watch out!" in Italian to co-workers, some of whom don't understand that language.
The first scenario might be considered poor customer service. The second could lead to morale problems or hostility among employees, or otherwise interfere with their ability to work together efficiently. And the third is a safety concern.
To avoid such situations, some employers adopt a "speak-English-only" policy. But before you do likewise, be careful. For one thing, some employers have found that letting employees speak the language they’re most comfortable with actually increases morale and productivity. But perhaps more important, the Equal Employment Opportunity Commission may consider an English-only policy to be discrimination based on national origin and a violation of Title VII of the Civil Rights Act.
The agency, in fact, recently sued a Hartford-based beauty products supplier, along with two temporary-employment agencies that supplied workers to the company, on these grounds. The EEOC claims the company harassed workers for speaking Spanish even during lunch time and breaks, and illegally fired them because they openly criticized the English-only rule. In its defense, the company says it applies the rule only during work time and has legitimate business reasons for the rule.
The EEOC's "Guidelines on Discrimination Because of National Origin" make three points about English-only rules:
1. If a rule requires employees to speak only English at all times in the workplace, the EEOC will presume the rule violates Title VII.
2. An English-only rules that applies only at certain times is acceptable if "the employer can show that the rule is justified by business necessity."
3. An employer who has a justifiable business reason for an English-only rule that’s limited to certain times must notify employees in advance of the type of situations when speaking English is required and of the consequences for violating the rule. If the employer does not notify employees and then makes an adverse employment decision against one of them for failing to speak English, the EEOC "will consider the employer’s application of the rule as evidence of discrimination."
Courts Have Differed with EEOC
EEOC guidelines, however, are not binding on the courts, and some federal courts have disagreed with the commission’s stance on English-only rules.
One court, for instance, upheld an employer’s right to require bilingual employees to speak English while working. The employer allowed Spanish to be spoken on employees’ own time.
Another court dismissed a case in which several workers alleged that Hispanic employees were being discriminated against because a company rule allowed them to speak Spanish only when helping Spanish-speaking customers. The court found no discrimination, saying the plaintiffs had failed to prove that non-Hispanic employees were allowed to speak in a language other than English.
Court cases, however, have not always gone in the employer’s favor. One court ruled that an employee has a valid discrimination claim when the employer's English-only rule applies to workers who speak no or limited English. And another court found an employer who banned the use of Spanish at all times guilty of discrimination for firing 13 Hispanic workers and replacing them primarily with non-Hispanic employees.
What to Consider
Of course, no company wants to wind up in court even if the outcome is in its favor. Defending against lawsuits and EEOC complaints is costly and time-consuming. Connecticut employers also have to be concerned about charges filed with the state’s Commission on Human Rights and Opportunities.
For these reasons, employment law experts offer the following advice:
First determine if you really have a problem. Employees’ use of different languages may not be interfering with your company’s interests.
If you think you do have a problem and want to adopt an English-only rule, be sure you have a legitimate, nondiscriminatory business reason for it, such as safety concerns, the avoidance of sexual harassment or other types of hostile workplace claims, or the need to serve English-speaking customers.
Do not ban the use of other languages at all times. Limit the ban to only those times when you have a business reason for it.
Put your English-only policy in writing and make sure employees are notified of it – for example, by including it in your employment handbook, displaying a poster in the workplace or distributing a notice to each worker.
Apply the rule to all languages and ethnic groups, to avoid claims that one nationality is being singled out.
Make exceptions for employees who speak little or no English. Consider options such as a translator or training in English as a second language.
Train supervisors in how to administer the rule. Diversity training for all employees may also be helpful.