English-Only Rules in the Workplace Training for Supervisors

1. English-Only Rules in the WorkplaceTraining for Supervisors Updated 12/08

2. Introduction Many employers receive complaints that their employees talk among themselves in a language other than English. These employers are tempted to establish a restrictive policy requiring employees to speak only English in the workplace. Such a policy may violate guidelines from the Equal Employment Opportunity Commission (EEOC) pertaining to discrimination based on national origin. Any policy pertaining to employees speaking a language other than English while at work must be carefully designed, based on business necessity, and applied solely for the intended purpose of facilitating communications with customers, vendors and co-workers. This sample presentation is designed to be presented to supervisors and others who manage employees. It is designed to be presented by an individual familiar with Title VII of the Civil Rights Act of 1964 (Title VII), EEOC guidelines and the employer’s own policies and practices.

3. Objectives At the close of this session, you will be able to: • Describe Title VII’s non-discrimination restrictions that pertain to English-only policies in the workplace. • State the Equal Employment Opportunity Commission (EEOC) position. • Explain the difference between an unacceptable and an acceptable policy. • Describe the EEOC’s position on English fluency. • Identify alternative tools for managing language disparities.

4. Title VII’s Non-Discrimination Restrictions That Pertain to English-Only Rules in the Workplace • Title VII is a law that prohibits employment discrimination based on race, color, religion, sex and national origin. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying, assisting or participating in an investigation, proceeding or hearing.

5. Title VII’s Non-Discrimination Restrictions That Pertain to English-Only Rules in the Workplace (cont’d) • According to 29CFR1606.7, English-only rules could be considered discrimination based on national origin. • “Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also result in a discriminatory working environment. …the Commission will presume that such a rule violates title VII.” • However, according to 29CFR1606.7, under certain circumstances, employers have some authority to require English-only. • “An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”

6. Title VII’s Non-Discrimination Restrictions That Pertain to English-Only Rules in the Workplace (cont’d) • The Equal Employment Opportunity Commission (EEOC) has reported a surge in discrimination charges stemming from English-only policies during the last decade, from 30 in 1996 to more than 120 in 2006. • Employers have faced lawsuits for enforcing English-only policies. In April 2007, Flushing Manor Geriatric Center agreed to pay $900,000 to settle an EEOC lawsuit based in part on the company's English-only policy.

7. Questions? Comments?

8. EEOC’s Position on English-Only Rules • Title VII permits employers to adopt English-only rules under certain circumstances. As with any other workplace policy, an English-only rule must be adopted for nondiscriminatory reasons. An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin. Likewise, a policy that prohibits some but not all of the foreign languages spoken in a workplace, such as a no-Navajo rule, would be unlawful.

9. EEOC’s Position on English-Only Rules (cont’d) • Even where an English-only rule has been adopted for nondiscriminatory reasons, the employer's use of the rule should relate to specific circumstances in its workplace. An English-only rule is justified by "business necessity" if it is needed for an employer to operate safely or efficiently.

10. EEOC’s Position on English-Only Rules (cont’d) • Therefore, an employer must assess the business necessity for requiring employees to speak only English in the workplace. If it can justify such a requirement, it may have such a policy. If the employer cannot justify such policy, it risks unlawful discrimination. • “Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the Commission will consider the employer's application of the rule as evidence of discrimination on the basis of national origin.” Source 29CFR1606.7.

11. EEOC’s Position on English-Only Rules (cont’d) • The following are some situations in which business necessity would justify an English-only rule: • For communications with customers, co-workers 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 co-workers or customers.

12. Policy Statements on English-Only Rules • The following is a sample of an unacceptable policy that would constitute intentional discrimination based on national origin: • XYZ Textile Corp. requires employees to speak only English while in the workplace, including when speaking to co-workers during breaks or when making personal telephone calls. XYZ places workers whose primary language is not English under close scrutiny to ensure compliance and replaces workers who violate the rule with workers whose primary language is English.

13. Policy Statements on English-Only Rules (cont’d) • In contrast to the previous unacceptable policy, the EEOC Guidance provides this example for when English-only policy can be acceptable: • XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing areas when they are not performing a job duty. • The English-only rule does not violate Title VII because it is narrowly tailored based on business necessity (safety requirements).

14. EEOC Guidance on English Fluency • According to EEOC Guidance, a fluency requirement is permissible only if required for the effective performance of the position for which it is imposed. Because the degree of fluency that may be lawfully required varies from one position to the next, employers should avoid fluency requirements that apply uniformly to a broad range of dissimilar positions.

15. EEOC Guidance on English Fluency (cont’d) • For example, according to the EEOC, an individual who is sufficiently proficient in spoken English to qualify as a cashier at a fast-food restaurant may lack the written language skills to perform a managerial position at the same restaurant requiring the completion of copious paperwork in English. • Therefore, employers should be careful not to require a greater degree of fluency in English than is necessary for the specific position.

16. EEOC Guidance on English Fluency (cont’d) • The following is an example of a permissible English fluency requirement: • Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in a non-bilingual, English-speaking community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers is limited. However, XYZ offers to consider him for a position in the stock room. Under these circumstances, XYZ's decision to exclude Jorge from the sales position does not violate Title VII.

17. Questions? Comments?

18. Alternatives for Managing Language Disparities • First, determine whether you need an English-only Policy at all. Ask: • If I don’t have an English-only policy, will that jeopardize safety or health? • Will customers be served well without a policy? • Will employees be able to fulfill their job duties without a policy? • Am I making the rule just to put some employees at ease? • Is effective communication compromised unless I have such a policy?

19. Alternatives for Managing Language Disparities (cont’d) • If you determine you need a policy, it will need to be based on business necessity and for safety/health purposes or for certain positions or at certain times. • For those reasons, the policy must be carefully crafted and judiciously enforced. • However, there may be alternatives to an English-only policy.

20. Alternatives for Managing Language Disparities (cont’d) • Employers can consider using other policies to correct behavior. • For example, if John and Sue are speaking in Spanish negatively about co-workers, the company doesn’t need an English-only policy to address this. The company may use its professional conduct policy to address these negative conversations. • Employers can consider using other tools for improving communication. • For example, if Mary speaks French, Erica speaks German and they appear to communicate poorly with each other, it may or may not be due to a language barrier. Either way, their employer doesn’t necessarily need an English-only policy for all employees, but it could explore the need for team building.

21. Alternatives for Managing Language Disparities (cont’d) • The following is an EEOC example of a non-discriminatory alternative to an English-only policy: • At a management meeting of XYZ Electronics Co., a supervisor proposes that the company adopt an English-only policy to decrease tensions among its ethnically diverse workforce. He reports that two of the employees he supervises, Ann and Vinh, made derogatory comments in Vietnamese about their co-workers. Because such examples of misconduct are isolated and thus can be addressed effectively under the company's discipline policy, XYZ decides that the circumstances do not justify adoption of a facility-wide English-only rule. To reduce the likelihood of future incidents, XYZ supervisors are instructed to counsel line employees about appropriate workplace conduct.

22. Questions? Comments?

23. Quiz • True or False: • Title VII requires employers to create English-only policies. • The EEOC is the enforcing agency for Title VII in the private sector. • It is unlawful to discriminate based on national origin. • Lawsuits and discrimination charges against employers for enforcing English-only policies has remained steady over the last decade. • Hispanic employees are annoying non-Hispanic employees by speaking Spanish among themselves. For that reason alone, the employer has the right to require them to speak English only at work. • Employers may under some circumstances require English-only policies across the board. • It is lawful to discriminate based on fluency in English.

24. Summary • Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex and national origin. English-only policies may constitute discrimination based on national origin. • Title VII permits employers to adopt English-only rules under certain circumstances. As with any other workplace policy, an English-only rule must be adopted for nondiscriminatory reasons.

25. Summary (cont’d) • According to EEOC guidance, a fluency requirement is permissible only if required for the effective performance of the position for which it is imposed. Because the degree of fluency that may be lawfully required varies from one position to the next, employers should avoid fluency requirements that apply uniformly to a broad range of dissimilar positions. • There are alternatives to an English-only policy, such as policies pertaining to professional conduct and using team-building activities to improve communication among employees.

26. Course Evaluation Please be sure to complete and leave the evaluation sheet you received with your handouts. Thank you for your attention and interest!