Richard D. Tuschman, P.A. Employment Lawyers

As I cast my ballot in this year’s election – a ballot that in my home of Broward County, Florida is printed in English, Spanish, and Creole – I was reminded of an employment law issue that often leaves employers scratching their heads: Can employers require their employees to speak English in the workplace, or must they allow employees to speak in their native tongues?

The answer, like the answer to so many legal questions, is: “it depends.” English-only policies are unlawful if adopted for a discriminatory purpose or if applied to one minority group but not another. In addition, even if an English-only policy is adopted for nondiscriminatory reasons and applied uniformly, the Equal Employment Opportunity Commission (EEOC) and some courts take the position that such rules burden national origin minorities because they prevent many members of these groups from speaking the language in which they are best able to communicate. According to this view, English-only rules may only be justified by “business necessity.” While some courts have adopted a less stringent standard, the safe approach for employers is to either refrain from adopting an English-only policy, or ensure that it is justified by business necessity.

According to the EEOC, the following are some situations in which business necessity would justify an English-only rule:

  • 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
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers

Even if justified by business necessity in these situations, an English-only policy should not be applied to casual conversations between employees when they are not performing job duties.

And make no mistake; employers with English-only policies that do not pass legal muster are likely to find themselves in the cross-hairs of the EEOC.

Take the case of Delano Regional Medical Center (DRMC), an acute care hospital in California. According to the EEOC, DRMC had an English-only policy that applied only to Filipino-American staff who spoke in Filipino languages like Tagalog or Ilocano; the policy did not apply to Spanish-speaking workers. The policy required Filipino-American employees to speak in English except when speaking to a patient with other language needs or during break time. Supervisors, staff, and even volunteers allegedly were encouraged to act as vigilantes and berate and reprimand Filipino-American employees who failed to comply with the policy. The EEOC brought a class action on behalf of approximately 70 Filipino-American workers. In September of this year, facing allegations that its policy was unlawful and subjected the Filipino-American employees to national origin discrimination and a hostile work environment, DRMC agreed to pay $975,000 to settle the case.

Similarly, in 2011 the EEOC reached a $2.44 million settlement of a class action lawsuit against the University of Incarnate Word (UIW) in San Antonio, Texas, on behalf of 18 Hispanic housekeepers who were subjected to an English-only rule and allegedly harassed due to their national origin. According to the suit, some of the UIW employees spoke little or no English, others testified that Spanish was their primary language even though they were born in the United States, while other employees were bilingual. The workers complained that they had difficulty complying with the rule because they did not speak English or unconsciously lapsed into Spanish when conversing with their peers.

Dealing with a foreign language can be confusing. The addition of Spanish and Creole to my Broward County election ballot stretched the ballot to 12 mostly incomprehensible pages! For monolingual employers and supervisors, the adoption of an English-only policy may therefore seem perfectly reasonable, and may even be a business necessity. But before adopting an English-only policy, employers should carefully consider the necessity of such a policy, the risks of a legal challenge, and the effect on employee morale. An English-only policy might only create more problems.