Closer to home, the U.S. District Court for the Southern District of Florida has recently addressed the issue of an employer requiring that employees speak only English. In Prado v. L. Luria & Son, Inc. (Luria's), decided in April of this year, the court held that "an English-only rule by an employer does not violate Title VII [of the Civil Rights Act] as applied to bilingual employees as long as there is a legitimate business reason for the rule."
In the Prado case, the plaintiff was employed initially by Luria's in Dade County as a cashier from 1987 to 1990. In that period of time she was offered, but declined, a promotion to head bookkeeper.
Early in 1990, Prado left Luria's for another job that paid a higher salary. However, after one year on this job, she sought re-employment at Luria's. There was no immediate opening at the company, but she was re-hired as an assistant bookkeeper when the first job became available in October 1992. She was later promoted to customer service manager. She worked at three different store locations in Dade County.
Prado Claimed that while employed at two of the separate business locations of Luria's in Dade County, she was subjected to harassment because of her accent and that at one location the store manager said there were "too many Spanish-speaking people" in the Coral Gables area, where the store was located.
In November of 1994, Prado quit Luria's, alleging that she was forced to leave (constructively discharged) because of Luria's strict enforcement of an English-only policy. In addition to filing a charge of discrimination, she took her complaints about the store to a Spanish language radio station in the area. In granting summary judgment for the store, the court noted that Luria's set forth two business reasons for enforcement of an English-only policy which the court found to be legitimate (1) to facilitate the practice of approaching customers first in English and (2) to ensure that management understands what is being said in order to evaluate employees in all work-related communications. The store also indicated that insistence on compliance with the policy was in response to customer complaints about employees speaking Spanish in the workplace.
In finding that the store's policy did not constitute unlawful national origin discrimination, the court rejected the EEOC's policy that an English-only rule in the workplace will be presumed to violate Title VII and will be closely scrutinized. The court found that the plaintiff in this case sought to speak Spanish in the workplace as a matter of preference and that this preference was overcome by the legitimate business reasons asserted by the employer. The court concluded:
Generally, an employer may adopt or maintain any work-site policy governing employees which has as its principal purpose a furthering of the employer's legitimate business interest so long as the policy does not infringe on individual rights, is not detrimental to the health or safety of the employees and, on balance, does not create an unfair advantage or disadvantage to any discrete group. More Particularly, an English-only workplace rule adopted with a principal purpose of providing for effective supervision and evaluation of employees furthers a legitimate business interest without violating protected rights.
The court then went on to observe what it termed "another practical justification" for a policy which prohibits the use of a foreign language in the workplace:
An insistence that employees speak English in the workplace serves the added business purpose of minimizing the sense of alienation and resulting hostility felt by employees and customers who don't speak or understand the foreign language.
The court's conclusion in the Prado case appears to provide latitude to an employer to establish and English-only policy in the workplace as long as the policy furthers the employer's "legitimate business interest(s)." This term obviously is subject to interpretation. Also, if a valid "business purpose" of an English-only policy is to minimize "alienation" and "hostility" of employees who do not speak the foreign language, virtually every employer of any substantial size could conceivably argue that employees or customers have complained that when employees speak Spanish (or another foreign language), they feel excluded because they do not know whether the employees are talking about them in a negative manner and are further offended by their inability to understand what these employees are saying.
Certainly it is legitimate to believe that non-bilingual employees feel alienated and perhaps hostile to employees who in their presence speak another language which they do not understand. On the other hand, employees who are more comfortable with a language other than English may well feel they are being "singled out" for special discipline simply because of their national origin.
In view of the Prado decision, what should an employer who desires to implement an English-only workplace policy do? First of all, the employer, while recognizing that the workplace is not and cannot be a democracy, should be sensitive to the varying life experiences and perceptions that are brought into the workplace by employees with diverse backgrounds and experiences. Because of this, the employer should take the time to communicate effectively with all employees in its workplace to ensure that an English-only policy is fully explained to the employees. All employees may not agree with the business reasons asserted by the employer, but at least they will recognize that the employer believes there is a business reason for the policy, and it is not being imposed simply to discriminate against of offend any group of employees.
More specifically, an employer should first establish that there is in fact a substantial business necessity for the policy. Certainly customer complaints would seem to establish such a business reason. The employer should explain that this expressed dissatisfaction by its customers may drive away existing and future business and therefore jeopardize the jobs of all employees.
An employer should also emphasize to its employees that this policy applies to all languages other than English, and not just Spanish or any other particular language. The employer should also emphasize that it is not in any way trying to dictate a language of preference to any employee and that all employees are free to communicate with each other and with others outside of the workplace, including the lunchroom, during breaks, or obviously before or after work, in any language the employees prefer. The employer should further emphasize most of its customers and supervisors speak English and that is why that language has been selected.
It is also important for the employer to affirmatively state, at the time of the implementation of the English-only policy, that the employer is happy to have a diverse workplace which represents a cross-section of the community and believes that this diversity enhances the workplace environment by exposing it to cultural and ethnic diversity. However, despite the diversity, for effective communication, one language needs to be chosen and the language selected has been English because that is the language that most, if not all, employees, supervisors, and customers speak. It is also recommended that the employer emphasize that if any employee wants to speak with management separately regarding this matter, the employer would be happy to meet and discuss the policy further.
The point is this: An English-only policy will be highly controversial, no matter how it is explained. If it is implemented by simply posting a memorandum on a bulletin board without explanation, the reaction of some employees is likely to be extremely negative and they may feel personally offended by the policy. Some employees may well feel they are being discriminated against because they were not born in this country. As immigration patterns have shifted in the United States from central and western Europe in the early part of the century to Central and South America today, the emotional issue of language may well be tied to perceptions of national origin discrimination by employees.
However, an English-only policy implemented with sensitivity by an employer willing to take the time to communicate the policy effectively to its employees minimizes the possibility that this misperception will occur. America is a country built upon diversity and, except for Native Americans, all of us or our ancestors came from somewhere else. The father of our country, George Washington, was not born in America, nor was the father of the author of this article. That fact does not make anyone a second-class citizen and the employer who takes the time to effectively communicate a lack of discriminatory intent or purpose to its employees maximizes its chances of avoiding costly, divisive charges of discrimination and litigation over an English-only policy.
It is sometimes difficult to see things from another person's point of view; to do so, however, is a clear indication of maturity. Employers and individuals who can recognize and effectively react to the perceptions of others will inevitably avoid unnecessary conflicts in the workplace, or elsewhere in life.
In a recent decision, the 11th Circuit Court of Appeals (which includes Florida) upheld the decision of the Georgia Attorney General to withdraw a job offer to a female attorney because the Attorney General became aware that she was a lesbian and involved in a long-term relationship with (i.e., "married to") another woman. The Court reasoned that employment of a lesbian in such a context could "negatively impact" the public's perception of and confidence in the Attorney General's office.
When the employer is the government, and the government makes decisions that affect an individual's economic well-being, it may be argued that the government-employer should not intrude into an individual's privacy and freedom of association rights to make these decisions. To do so could have a "chilling effect" on freedoms guaranteed to all of us by our constitution.