Publications

     

Insight

Whether and when "English-only" rules in the workplace are discriminatory

May 2010

Overview

 

The population of the United States is becoming increasingly diverse.  Recent surveys reflect that Hispanics currently comprise more than 15 percent of the population – more than 46 million people – making them the country's largest minority group.1  As such, employers should make it a priority to become more knowledgeable about issues pertaining to Hispanic-Americans and other non-native English speakers in the workplace in order to avoid potential legal problems now and in the coming years.  "English-only" rules in the workplace are often considered by the U.S. Equal Employment Opportunity Commission ("EEOC") and by federal courts as a form of national origin discrimination prohibited by Title VII of the Civil Rights Act of 1964.  An employer establishes an English-only rule when it instructs its employees either only to speak English or not to speak any language other than English while at work.  These policies are typically applied to workers engaging in conversation while on the job, but are sometimes applied to employees who are at lunch or on their breaks.

 

EEOC guideline

 

The EEOC's "Guidelines on Discrimination Because of National Origin," 29 C.F.R. § 1606.7, state that if an employer has a rule requiring that employees speak English "only at certain times," the EEOC will consider the rule permissible only if it can meet the standard of "business necessity."  According to the EEOC guidelines, examples of some situations in which business necessity would justify an English-only rule include:

 

  • For communications with customers, coworkers, 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 coworkers or customers

 

Court decisions

 

When evaluating the propriety of a language-restriction policy under a disparate treatment theory, federal courts have held that it is critical to assess whether the employer's practices reflect an intent to discriminate on the basis of the classifications protected by Title VII, including race and national origin.  In conducting this analysis, courts consider factors including whether there is evidence that the employer, in addition to adopting a language-restriction or English-only policy, has exhibited other forms of racial or ethnic hostility.  Pacheco v. New York Presbyterian Hospital, 593 F.Supp.2d 599 (S.D.N.Y. 2009).

 

English-only policies that apply at all times (often referred to as "blanket" English-only policies) and do not have business justifications have been held by courts to constitute disparate treatment under Title VII.  EEOC v. Premier Operator Services, Inc., 113 F.Supp.2d 1066 (N.D. TX 2000).  For example, in EEOC v. Premier Operator Services, the EEOC brought a class action on behalf of Hispanic employees alleging that the employer's "Speak-English-Only" policy violated Title VII.  The policy at issue prohibited the speaking of Spanish on company premises at all times, including during the employees' free time in between making calls, during lunch, in the break room, and before or after work if inside the building.  The only time it was acceptable for the employees to speak Spanish under this policy was when assisting Spanish-speaking customers. The court held that the employer's policy was disparate-treatment discrimination based on national origin.  In so holding, it reasoned that blanket English-only rules have a significant adverse impact on national origin groups whose primary language or language of national origin is not English, and that even a tailored English-only rule must be justified by business necessity.  The defendant's purported business reason for the policy was promoting office harmony.  However, the court noted that the defendant presented insufficient evidence to show that there was any business necessity for this policy in that there was no evidence there had been discord among the employees that required harmonization in this manner, or that there was any inability of the employees (who were all bilingual) to communicate with their supervisors and managers in carrying out their job duties and responsibilities.  The court also found that there was no evidence any person, other than an employee of Hispanic national origin, was disciplined or terminated for objecting to or violating this policy.

 

However, policies that prohibit the speaking of all non-English languages, and have a business justification, may be upheld.  In one case holding that an English-only rule did not have a disparate impact on the basis of national origin when applied to multilingual employees, a bilingual (English- and Polish-speaking) former employee brought suit against the defendant claiming that she was terminated in retaliation for opposing the defendant's English-only policy, which amounted to national origin discrimination under Title VII.  See Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d 730 (E.D. PA 1998).  The court held that the defendant church's English-only rule did not amount to national origin discrimination, reasoning that the employee could have readily complied with the English-only rule, the rule did not cause a legally cognizable adverse impact on the terms and conditions of the plaintiff's employment, and, regardless, the defendant had a legitimate business justification for the rule:  to improve interpersonal relations at the church and to prevent Polish-speaking employees from alienating other employees, and possibly church members.

 

Other courts have upheld English-only rules in the workplace as well.  In Cosme v. Salvation Army, the workplace rule in question required employees to speak English in public areas while working.  The purpose of this rule, as stated in the defendant employer's handbook, was to: "promote workplace harmony by ensuring that employees are able to communicate with customers, coworkers and supervisors,  to help managers monitor employees, and to improve productivity and efficiency."  The plaintiff in Cosme argued that the defendant's English-language policy violated EEOC regulations, lending support to her national origin discrimination claim.  The Cosme court disagreed, holding that an English-language policy was not per se discriminatory, and that the plaintiff failed to establish that the employer's nondiscriminatory reasons for terminating her employment were pretextual.  In so holding, the court noted that an EEOC regulation may offer guidance to the court, but the court is not bound by such regulations.  It also noted that, while the EEOC does not favor English-only policies, the mere existence of such a policy does not necessarily violate the regulations.  Cosme v. Salvation Army, 284 F.Supp.2d 229 (MA 2003).

 

Similarly, in Barber v. Lovelace Sandia Health Systems, the U.S. District Court for the District of New Mexico held that there was nothing inherently discriminatory about an English-only policy established for legitimate business purposes.  Barber v. Lovelace Sandia Health Systems, 409 F.Supp.2d 1313 (N.M. 2005).  In that case, two medical assistants sued the medical faculty claiming national origin discrimination in part because the faculty had asked the employees to refrain from speaking Spanish unless it was needed to translate to a patient.  This rule had arisen because the faculty had received complaints about employees speaking Spanish to one another and laughing (or having been perceived to have been laughing) at their co-workers or patients.  In ruling for the defendants, the Barber court also noted that there was no evidence that the faculty told the employees they could not speak Spanish during breaks or while at lunch.

 

More recently, in Perez v. New York Presbyterian Hospital, the court granted the defendant hospital's motion for summary judgment in a case involving a policy prohibiting employees from speaking Spanish to a patient who also spoke English.  See Perez v. New York and Presbyterian Hospital, 2009 U.S. Dist. LEXIS 102139 (S.D.N.Y 2009).  In Perez, the plaintiff argued that he was subjected to a hostile work environment because of his race and national origin by, among other things, being reprimanded for speaking Spanish to co-workers and patients.  He further claimed to have witnessed many other employees reprimanded for speaking Spanish.  The defendant hospital acknowledged that doctors counseled the plaintiff not to speak Spanish to a patient unless instructed to do so by a physician and that he was later reprimanded for doing so after having been asked not to (among his other performance issues).  This was in accordance with the hospital's policy requiring all communications in the vicinity of patients to be in English unless otherwise directed.  Its proffered rationale for the policy was to avoid "splitting," a situation in which a patient hears two different languages and refuses to cooperate with English-speaking doctors and nurses, thereby undermining their treatment.  The hospital maintained that this was not a blanket "English-only" policy and referred to it as an "anti-splitting" policy.  The Perez court held that the plaintiff failed to put forward sufficient evidence to show that the hospital's proffered reason for the policy was false and that the policy was motivated by discrimination.  In so ruling, the court stated that: "The Hospital's policy prohibits Spanish conversations in the vicinity of patients because the medical staff has determined it is in the patients' best interest.  The rationale is based on avoiding 'splitting,' where patients refuse to obey English-speaking staff after being spoken to in Spanish.  However, Plaintiff was frequently asked to translate by Hospital medical staff, and being English/Spanish bilingual was a MHW [mental health worker] hiring preference.  While a 'speak-English instruction may form the basis for an inference of national origin discrimination' if supported by other evidence, courts have upheld limited English-only policies against Title VII challenges when supported by valid business justification."  Perez v. New York Presbyterian Hospital at 45 – 46, citing Roman v. Cornell University, 53 F.Supp. 2d 223, 236 (N.D.N.Y. 1999).

 

Comments

 

In sum, employers who adopt English-only policies and want to ensure that an English-only policy does not violate Title VII's prohibition against national origin discrimination should consider reviewing the business justification for the policy and to ensure that the policy is limited in scope so as to meet that specifically articulated business justification.  Without a provable business justification for an English-only rule, a court will likely view the rule as discriminatory.  Employers should keep in mind that any such policies are subject to challenge, and that while a court in one jurisdiction may uphold a policy as supported by a valid business justification, a court in a different jurisdiction may view the business justification as invalid or insufficiently supported by the evidence.  An employer that simply states that its policy is based on the desire to promote office harmony must be prepared to provide evidence demonstrating the justification for the policy and that the policy is related to promoting the desired harmony.  Likewise, employers should keep in mind that there is usually no justifiable reason such policies should be applied to employees who are on their breaks or are otherwise not in the vicinity of customers or patients.

 

The law interpreting English-only policies in the workplace is rapidly evolving.  With the expected exponential increase of Hispanic and other diverse populations in the United States, more activity in this area of the law is expected.  Employers should take affirmative steps to protect themselves from litigation by reviewing any English-only policies in the workplace.

 

For further information, please contact via e-mail  David M. Holmes at dave.holmes@wilsonelser.com or Angela M. Sekerka at angela.mcmanus@wilsonelser.com.  They may also be reached in our Chicago office at 312.704.0550.



1) Timothy Sun and Alex Johnson, In Down Times, Hispanic Market is Booming, March 4, 2009, NBC News and msnbc.com, available at http://www.msnbc.msn.com/id/29470143/.

View more Insights

Offices