English-Only In The Private Sector
With the recent passage of the English-only ballot initiative in Utah, employers may be inclined to pass similar English-only rules in the workplace. Employers need to be aware that the ballot initiative applies only to official government business. Employers in the private sector are restricted by EEOC guidelines and by case law that limits the circumstances under which English-only rules can be adopted.
EEOC Guideline Prohibits Blanket Policy
The EEOC guideline (29 CFR § 1606.7) prohibits policies requiring employees to speak only in English at all times in the workplace. The reasoning is that such rules may create an atmosphere of hostility against certain groups on the basis of their national origin, which is often closely connected to language. The guideline limits English-only rules to circumstances where the employer can show a business justification. Furthermore, the guideline requires employers to notify employees of the circumstances when speaking only in English is required and of the consequences of violating such a rule.
EEOC Bolsters Its Evidence in Response to Early Employer Victories
Several of the early cases to address English-only rules in the workplace found them to be legal, at least as applied to bilingual employees. The courts reasoned that bilingual employees could easily comply with English-only rules, and thus there would be no adverse impact on them. Also, in most of the early cases, the English-only rules did not apply during meals or other break times. The courts generally upheld the business justifications given by employers for their English-only rules, which included: (1) combating alienation employees feel when they cannot understand conversations in the foreign language; (2) helping management understand and evaluate employee performance; (3) training non-English speaking employees in the English language; and (4) promoting safety. Several of the early cases also ruled that the EEOC guideline was not binding and, because it shifted the burden to employers without requiring proof of adverse impact, it violated the law.
Two recent cases may signal a shift in favor of the EEOC. Both cases were filed by the EEOC directly, unlike the earlier cases which were filed by private litigants. In both cases, the courts ruled that the EEOC's English-only guideline was valid and enforceable. One of the key differences between the recent cases and the earlier ones is that the EEOC is now armed with an expert to attack the assumption that bilingual employees can easily choose to speak only in English.
In the most recent case that went to trial, the EEOC's expert testified that bilingual employees are unable to control "code switching", or the jumping back and forth between their primary language and secondary language. The expert testified that bilingual speakers generally tend to continue to speak in the language in which they most recently spoke, like when a customer service representative turns to speak to a fellow employee after handling a call with a non-English speaking customer. The court found the expert's testimony to be persuasive and distinguished the earlier cases where the courts assumed, without evidence being introduced to the contrary, that bilingual employees could easily choose to speak in English. The court also found the employer's business justification, that the English-only rule promoted harmony in the workplace, lacked evidentiary support.
The recent cases filed by the EEOC show that employers need to be careful when deciding whether to adopt English-only policies. Employers who are sued will likely face expert testimony that will challenge any assumptions they made in formulating their policies. This underscores the need for employers to carefully analyze whether a legitimate business need exists for an English-only policy and, if so, to draft the policy as narrowly as possible to satisfy that need. Finally, employers who adopt English-only policies need to provide notice to employees of the terms of the policy and of the consequences for violating it.