Here, Christine Cesare, partner, and Lisa Lerner, associate, with employment law and litigation firm New York City-based Emmet, Marvin and Martin LLP, explain the difference between a legal English-only workplace and a liable one.
Since language isn't protected ground under human rights legislation, how is it that so many employers are finding themselves vulnerable to discrimination suits?
LL: Some employees base their [complaints by arguing that] their language is linked to their national origin. That's when the employer runs into a potential problem under Title VII. The Equal Employment Opportunity Commission has had interpretive guidelines [since 1980] that pretty much define what constitutes national-origin discrimination. The EEOC has mentioned that English-only rules may violate Title VII.
So in what case would English-only rules represent discriminatory action?
LL: The EEOC looks at two different things. First, the EEOC has said that if you have a per se rule that states employees must speak only English in the workplace, at all times, it's going to closely scrutinize the rule, and will [likely] construe that as discrimination. But if an employer has a rule that English must be spoken at certain times, but on break or lunch periods employees may speak any language they want, and if that rule is justified by a compelling business necessity, then it may withstand scrutiny. The interesting thing here is that in this type of discrimination, unlike other types of discrimination, you actually have an employer admitting the discriminatory conduct. It's admitting it has an English-only rule, and it's relying on its policy in the litigation.
What kind of business necessity would justify an English-only rule?
CC: It depends on the nature of the business. You usually see it in cases of promoting safety, order and discipline. Also, and I don't know if this has risen to a legitimate justification, but there's a concern that people speaking different languages can create disharmony in the workplace. Sometimes employers articulate that as a reason why they'd like the English-only rule, because it tends to eliminate some divisiveness. But I don't know if that has risen to a business justification.
Has anyone successfully used something like workplace disharmony as a business justification?
LL: The first circuit court of appeals to consider the issue—the ninth circuit—upheld the EEOC interpretive guidelines and essentially used them to find an employer's practice discriminatory. But the next time the ninth circuit considered the issue, it rejected the EEOC guidelines. They found that an employer may have legitimate reasons for essentially having an English-only rule under circumstances that aren't designed to promote workplace safety. In that case, Garcia vs. Spun Steak Co., the employer had instituted an English-only policy because certain employees were using the Spanish language allegedly to harass other co-workers.
How did the court explain its decision?
LL: The court found that the employer could have an English-only policy. It held that Title VII doesn't protect employees' right to express their cultural heritage on the job and that bilingual employees aren't denied a privilege of their employment when [English-only is enforced]. The court held that you have to look at an employee's claim under the hostile work-environment analysis of Title VII. In the [Garcia] case, the employees hadn't proven that the English-only work rule constituted a hostile work environment.
What does that mean to employers?
LL: It means an employer has leeway to have an English-only policy; and that English-only policy is going to be evaluated on a case-by-case basis.
CC: Employers can feel hopeful because these recent cases tend to look favorably at the employer's reasons and take them into account—as opposed to the first ninth circuit case that adopted virtually wholesale the EEOC guidelines, which are pretty limiting and restrictive.
What advice would you give employers who are considering instituting this kind of policy? What kinds of questions should they ask themselves before they do this?
LL: It depends on what kind of business you're in. Some of the cases coming down deal with hospitals and whether nurses and doctors have to speak English. That gets into an area in which there are safety concerns—you want to be careful that a doctor is effectively communicating to a patient. So one thing is the nature of the business and what type of contact [your employees] have with other people, how imperative it is that [they] can communicate in English.
So a justification could be that the work simply required English fluency?
CC: It could happen in a hospital or certainly in sales work, depending on whom your customers are. An employer whose customers are English-speaking is going to have a problem if all the sales people speak a different language.
LL: By the same token, as technology increases, as people work [more] on computers and communicate by E-mail, the language part of the job becomes less imperative. In terms of communicating in the workplace, it becomes less imperative that you speak only English.
What about choosing not to promote someone because of an accent?
CC: Employers can't use accent as a reason not to promote somebody unless it's a true impediment—unless there's a demonstrated problem, such as the people working for that person can't understand him or her. If the accent is that pronounced and it's a legitimate problem, that's a reason why an employer may not be able to promote somebody. But you can't use that as a subterfuge to discriminate against someone based on national origin.
LL: The issue of accent discrimination also was addressed by the EEOC in its interpretive guidelines. The EEOC has said it will carefully investigate charges involving disparate treatment and adverse impact on the basis of national origin. But the issue of accent ties into an employee's ability to communicate, so what you have are employers claiming that employees were unable to communicate effectively in the workplace, and that hinders their ability to perform their jobs properly.
Do you see any general legal trends for English-only workplaces?
LL: The Supreme Court refused to reconsider the Garcia decision, and in the aftermath of the Court's refusal to hear the case, a lot was written on what this is going to mean for employers. The interpretation that people are giving is that employers may be able to get away with more in terms of English-only policies, and employees may be less likely to rely upon the EEOC's interpretive guidelines.
So where does the EEOC fit in?
LL: While the courts are demonstrating a willingness to favor the employer, the EEOC is strictly adhering to its guidelines. When employees have a claim of discrimination, the first thing they'll do is file a charge of discrimination with the EEOC. So employers still have reason to be concerned about an English-only policy.
CC: You always have to be concerned about the EEOC. It can start an investigation on its own, file charges and fine the plaintiff—and they determine and assess the claims [not on a case-by-case basis] but by looking strictly at their guidelines.
Any legislation pending on the topic?
LL: There are several bills pending in Congress right now. They don't deal directly with the workplace, but they do deal with English-only measures. One of the reasons this issue has been brought to the forefront is because there are two bills pending attempting to make English the official language of the U.S. government. There was also a bill proposed in July that goes the other way and encourages multilingualism; it discourages English-only measures. So although these don't deal directly with the workplace, they certainly affect the way the public is going to view workplace regulations. The two bills introduced to declare English the official language have been pending for several months. The odds they'll pass each stage of the legislative process are slim.
Some states also now recognize English as their official language. What does that mean exactly?
LL: What these states have essentially said is that they recognize English as the official language. It's a response to the influx of immigrants. According to the 1990 Census—and the numbers are growing—there are more than 31.8 million people in the U.S. who speak languages other than English. There's a trend to preserve the English language that's been fueled by the rise of non-English-speaking and multilingual people in the United States.
Personnel Journal, November 1995, Vol. 74, No. 11, pp. 87-92.