Saturday, March 11, 2017

Can your employer require all workers to speak only English? Can you then be reprimanded, or even fired, if you speak Spanish while working? How about if you speak Chinese during a lunch break, just with a co-worker?

Surprisingly, the answer to these questions is not completely clear.

According to a 2015 report by the Center for Immigration Studies, 21 percent of U.S. residents now speak a language other than English at home. In Connecticut, the percentage is about the same.[1]

The impact certainly resonates into the American workforce. The United States Department of Labor properly recognizes that employers benefit from a diverse workforce.  It also recognizes the substantial contributions of employees who are fluent in languages other than English. Nevertheless, an employer may find itself in a conundrum balancing the perceived need for an English-only policy in the workplace with an employee’s legal rights.

The law is clear that a rule requiring employees to speak English at all times in the workplace does violate Title VII of the Civil Rights Act of 1964, and may form the basis of an inference of national origin discrimination.  An employee’s right to speak languages other than English may only be restricted in the workplace under certain narrowly-defined situations. An English-only rule must be justified by business necessity.  It is not enough to show that an English-only rule is convenient or beneficial to a business; rather, an employer must show that the asserted business necessity is vital to the business.  Defining that business necessity is the tough part.

An English-only policy applied during emergencies or in other dangerous situations where employees must speak a common language to ensure a safe workplace is clearly vital to a business.  However, the line is rarely that clear in most normal workplace circumstances.

For example, take the situation in which two employees in a predominately Spanish-speaking workforce are making racist comments in Spanish about two other co-workers.  In response, an employer adopts a workplace English-only rule, although the employer continues to allow the employees to speak Spanish during lunch and on breaks.  While the English-only policy in this case was upheld, it was met with much criticism.  What if the employer had not permitted employees to speak Spanish during breaks or lunch, or had implemented a strictly no-Spanish rule?  In these situations, the policy would most likely have been found to be unlawful.  To date, there is no Supreme Court guidance on the issue of English-only policies and the law remains somewhat vague.

So, in an increasingly diverse workforce what is an employer to do?

The most important thing to remember is that an English-only rule must be adopted for nondiscriminatory reasons only.  How is the employer defining “business necessity?”

Narrowly tailored English-only policies are more likely to withstand scrutiny, and employees must be notified of the broad circumstances when speaking only in English will be required and what the consequence will be if they violate the rule.  Generally speaking, if an English-only policy is not absolutely vital to a company’s safety and/or operation, employers are better off steering clear of such a practice.

Jessica A. Slippen is an attorney with the Stratford-based law firm, Mitchell and Sheahan, PC.  She handles employment litigation matters in both state and federal courts.



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