March 6, 2012

By: Shelly R. Pagac

According to the U.S. Census Bureau, between 1980 and 2007, the number of Americans who speak languages other than English at home grew by 140 percent. Correspondingly, there has also been an increase in non-English speaking workers in the U.S. labor force. Linguistic diversity can present both opportunities and challenges for employers. Over 30 states have enacted legislation making English their official language for purposes of state and even local government functions. Pennsylvania may join those states, as two bills introduced in 2011, House Bill Nos. 361 and 888, would require the use of the English language for official state government, and possibly county, municipal and school system, functions. Similarly, private employers have also decided to implement “English-only” rules in the workplace. Although some court decisions and potential changes to the applicable guidelines regarding English-only rules may provide some support to employers who implement such rules, employers should remain cautious and be sure that their rules follow the guidelines, so as to avoid potential national origin discrimination claims under Title VII of the Civil Rights Act of 1964 and similar state discrimination statutes, including the Pennsylvania Human Relations Act.

Under the current state of the law, guidelines established by the Equal Employment Opportunity Commission (“EEOC”) in its regulations and its Compliance Manual permit employers to adopt English-only policies only in certain circumstances. The EEOC distinguishes English-only rules that apply “at all times” from those that apply “only at certain times” in the workplace. According to the EEOC’s guidelines, blanket English-only rules that apply at all times are presumed to constitute national origin discrimination in violation of Title VII and are, thus, “closely scrutinized.” As a result, employers should avoid policies that require employees to speak English at all times and in all situations.

Business Necessity Exceptions

The EEOC guidelines, however, do not prevent an employer from implementing an English-only rule that applies only at certain times, as long as the rule is justified by “business necessity,” or necessary for an employer to operate safely or efficiently. Examples of situations in which “business necessity” would justify an English-only rule include:

(1) communications with customers, co-workers, or supervisors who only speak English, such as communications by a salesperson attending to English-speaking customers, by a radio announcer over the air to a target audience who speak English or with a supervisor in order to insure constructive discussion of assignments, work performance and work rules;

(2) in emergencies or other situations where employers must speak a common language to promote safety, including dangerous or sensitive tasks such as performing a surgical procedure in the operating room, drilling oil wells or mining, working on a construction site or handling volatile materials;

(3) for cooperative work assignments in which an English-only rule is needed to promote efficiency, such as to prevent employees from impeding the progress of a work assignment involving a group of employees by excluding employees from discussions about the assignment because they are not in English; and

(4) to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

When evaluating whether to adopt an English-only rule, employers should weigh the business justification identified against any possible discriminatory effects of the rule. Relevant considerations include: (1) evidence of safety justifications for the rule; (2) evidence of other business justifications for the rule, such as supervision or effective communication with customers; (3) likely effectiveness of the rule in carrying out objectives; and (4) English proficiency of workers affected by the rule. Employers should also consider and implement any possible alternatives to an English-only rule, such as discipline, that would be equally effective.

If business necessity requires an English-only rule, the rule should be tailored to apply only during specified times and business situations. In addition, employers should permit employees to speak the language of their choice in recreational areas, while they are not on duty, such as when they are on breaks, or when making personal phone calls with family members, as conversations in such places and at such times would be difficult to categorize as necessary to the conduct of the employer’s business. Employers should also make sure that rules are neutral and enforced equally. Policies should not treat one group differently than another and should not prohibit one particular language from being spoken in the workplace, such as a “non-Spanish” policy.

Finally, the EEOC’s guidelines instruct that employers should ensure that employees are notified of the implementation of an English-only rule, and the consequences of non-compliance. Notice can be provided by any reasonable means, including a meeting, e-mail or posting. Employers should also include a grace period before the effective date of the policy, so as to be certain that all workers have received notice. If an employer fails to provide its employees with notice of an English-only rule, the EEOC will consider any adverse employment decision based upon the use of language other than English to be evidence of national origin discrimination.

A Look Ahead

It is possible that the EEOC’s guidelines will change at some point in the future. In October 2011, the U.S. Commission on Civil Rights (“USCCR”), an 8-member agency established under the Civil Rights Act of 1957 whose mission is to “inform the development of national civil rights policy and enhance enforcement of federal civil rights laws,” posted a report that recommends that the EEOC modify its position that the use of English-only rules is a presumptive violation of Title VII. The USCCR recommends, instead, that employers, employees and applicants be informed that such policies only be prohibited where the employee or applicant can show by a preponderance of the evidence that the policy was adopted for the purpose of harassing, embarrassing or excluding employees or applicants for employment on account of their national origin. The USCCR has also recommended that Congress similarly amend Title VII. Moreover, the EEOC’s guidelines have been questioned and even rejected by some courts, including the United States District Court for the Eastern District of Pennsylvania in Kania v. Archdiocese of Philadelphia, 14 F. Supp. 2d 730 (E.D. Pa. 1998), which held that the guidelines were to be disregarded in determining whether the employer’s policy in that case constituted national origin discrimination, as such guidelines exceeded the authority of Title VII. The court also noted that Title VII does not protect the ability of workers to express their cultural heritage at the workplace.

Despite these decisions and potential changes, employers should continue to closely examine and carefully consider English-only policies. Although the Kania decision and others provide some support for employers, should their English-only policy be challenged, this does not guarantee that all such policies will be enforceable or that the EEOC or courts will look at them with less scrutiny. It is advisable for employers to continue to follow the EEOC’s regulations and be cautious when considering and implementing English-only rules in the workplace unless and until the standards set forth regarding English-only rules in the EEOC’s guidelines are changed.

Reprinted with permission from the March 6, 2012 issue of Pennsylvania Law Weekly. © 2012 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.