Prospero Ano y Felicidad: Feliz Navidad and an “English Only” Policy in the Workplace

As Jose Feliciano wishes us a Merry Christmas from the bottom of his heart, it is important that we as employers recognize that in order to maintain a diverse workforce we are going to be faced with some difficult questions—including whether an “English Only” policy is necessary or appropriate to accomplish our business goals. While Title VII does not specifically protect an employee’s right to speak a language other than English in the workplace, employers must recognize that both the EEOC and the NLRB take the position that these type of “English Only” policies may be both discriminatory and may also violate the NLRA by inhibiting employees’ abilities to discuss the terms and conditions of employment.

The EEOC has taken the position that “English Only” rules that apply at all times and in all workplace locations violates Title VII insomuch as it results in national origin discrimination. Further the EEOC notes that this kind of policy could “create an atmosphere of inferiority, isolation and intimidation based on national origin.” If the policy, however, only applies at certain times, the EEOC has taken the position that it may not be national origin discrimination if the policy is justified by a business necessity. Those business necessities are most often based in providing the employer with the ability to operate safely or efficiently including:

• For communications with customers, coworkers, 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 coworkers or customers.

The EEOC has provided an example of a narrowly crafted English-only policy, which they believe promotes safety without infringing on employee rights:

XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing area when they are not performing a job duty.

The EEOC believes that this policy would be narrowly enough tailored to safety requirements to not violate Title VII. When considering whether to adopt an English-only rule, a weighing of the reasoning behind the perceived need for such a rule is helpful. Have management present information on the safety justification for the rule; present information on whether there are other justifications for such a rule (whether from a management or client perspective); analyze information as to the effectiveness of such a rule in achieving the objective (are there other ways to accomplish the same goal); and finally analyze the current English proficiency of your workforce to determine what affect (if any) adoption of such a rule will have on your current workforce.

While the potential of a Title VII lawsuit is always one concern, employers also must be mindful of the effect such a rule could have on employers’ responsibilities under the NLRA. Earlier this year, an Administrative Law Judge found that a group of hospitals that required employees to communicate only in English when interacting with each other, patients, visitors, and/or customers violated the NLRA because it limited the employees’ ability to freely discuss the terms and conditions of their employment. While considering the broadness of this “English Only” policy in that situation there likely were Title VII concerns as well, but it is important to simultaneously be considering the effect of the NLRA when making these policy decisions.

Insofar as your company is considering instituting an “English Only” policy, reach out to a member of Verrill Dana’s Labor & Employment Group to further discuss ways to mitigate risk in instituting such policies.