by Faith Alejandro
Can an employer require its employees to speak only English
in the workplace? Can you deem someone not qualified if he brings a translator
to the interview? These are questions that are increasingly coming up in the
average Virginia workplace as we become more multi-cultural.
"English-only" refers to policies that restrict employee
communication to English in the workplace. The Equal Employment Commission ("EEOC")
frowns upon the use of these
policies given the great potential for discrimination against bilingual and
non-English speaking employees. Policies requiring employees to speak only
English in the workplace at all times, including breaks and lunch, will rarely
be justified. The EEOC even presumes that such policies violate Title VII and should be closely
scrutinized. Such policies tend to create an "atmosphere of inferiority,
isolation, and intimidation based on national origin which could result in a
discriminatory working environment."
But what about the employer considering an English-only
policy in limited circumstances? Despite the EEOC's express disfavor with these
rules, such policies may be important to the workplace and can be adopted as
Notice must include an explanation of the workday
circumstances requiring English-only and the consequences of violating the
policy. Most employers accomplish this putting the policy in writing (often in
employee handbooks) and by asking employees to acknowledge their receipt of the
policy in writing.
The employer contemplating this policy must have a valid
"business necessity" that can withstand close scrutiny. A business necessity
promotes the safe or efficient operation of the employer's business. This
almost always includes emergency situations that require a common language to
promote safety. This could also include situations involving communications
with customers, coworkers, or supervisors who speak only English to promote
efficiency. The federal judicial appellate court governing Virginia (the Fourth Circuit),
has even permitted an English-only policy where it was necessary to promote
employee morale after English speaking employees complained of the rudeness of
coworkers who refused to speak English in their presence. Long v. First Union Corp., No. 95-1986
1996 U.S. App. LEXIS 12431 (4th Cir. 1996) [an enhanced version of this opinion is available to lexis.com subscribers].
However, other federal appellate courts have held that
English-only policies violate one's right to speak in the language of one's
choice as a First Amendment
right to freedom of expression. This split among the federal appellate courts
will only be resolved if Supreme Court of the United States
takes a case where this point of law is at issue.
Thus, unless thoughtfully considered, English-only
policies can expose employers to a discrimination law suit.
If you should have questions about developing an
English-only policy, the Virginia employment lawyers at Sands Anderson PC
are glad to talk with you.
Read more labor and
employment law articles at Virginia Workplace Law
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