EEOC'S New Guidance on National Origin Discrimination & English-Only Rules

SCENARIO: Two olive-skinned, full-bearded men of Arab descent sit in your break room discussing a party they both attended over the weekend. Nothing is unusual except that the conversation is spoken in Arabic only. Two of your non-Arab employees overhear their conversation and remark, "Look at 'em– they're probably over there planning the next major terrorist event. Hey boys, maybe you guys missed the sign posted outside on the door 'ENGLISH ONLY!' in the workplace."

The two hypothetical Arab employees may have the basis for a claim under Title VII based on national origin harassment and discriminatory application of the English-only rule. Employers generally understand that Title VII prohibits them from taking actions that have the purpose or effect of discriminating, or treating someone less favorably because the individual is from a certain place or belongs to a particular national origin group. According to EEOC attorneys, the need for additional guidance in the area of "national origin" discrimination became apparent in light of the country's economic recession, the significant increase in foreign-born workers and the continuing backlash over the horrific events of Sept. 11. Accordingly, on December 2, 2002, the EEOC issued Compliance Manual Section 13, which discussed new guidance on national origin discrimination and implementing English-only rules in the workplace.

Among other things, Section 13 expanded and clarified previous EEOC guidance on English-only rules. "An English-only rule is justified by 'business necessity' [and thus legal] if it is needed for an employer to operate safely or efficiently." According to the EEOC, business necessity would justify implementing an English-only rule under the following circumstances: "(a) For communication with customers, coworkers, or supervisors who only speak English; (b) In emergencies or other situations in which workers must speak a common language to promote safety; (c) For cooperative work assignments in which the English-only rule is needed to promote efficiency; and (d) To enable a supervisor, who speaks only English, to monitor the performance of an employee whose job duties require communication with coworkers or customers." This list is not exhaustive. So long as other circumstances satisfy the basic business necessity test, they would not be deemed discriminatory.

Employers with English-only rules should revisit their policies in light of this new guidance. Employers must be prepared to defend the business necessity for the policy and to prove the policy is narrowly tailored to advance that business necessity.