Key Considerations for Drafting Compliant English-Only Policies
 

Key Considerations for Drafting Compliant English-Only Policies

Posted on 09-12-2018

By: Jamala S. McFadden, Chandra C. Davis, and Raquel H. Crump, McFadden Davis, LLC

This article provides guidance for drafting, implementing, and enforcing effective and legally compliant English-only policies in the workplace. English-only policies require employees to speak English while on the job. While there are definite benefits to employers from enacting such policies, they are not without risk.

BECAUSE OF THE DISPARATE IMPACT SUCH POLICIES CAN have on foreign-born employees, English-only policies are often the source of discrimination claims. As such, welladvised employers generally narrowly tailor these policies to particular job positions, times, circumstances, and work areas where speaking English serves a legitimate business need, such as by improving safety, promoting customer service, or enhancing employee supervision.

Benefits of English-Only Policies

Despite the risks inherent in English-only policies (as described below), many employers nevertheless choose to utilize them for the role they may play in creating a safe and effective workplace. The benefits to employers from using English-only policies can include:

  • Facilitating relations with English-speaking customers
  • Promoting effective communication between employees and supervisors
  • Allowing supervisors to more easily gauge employee performance
  • Promoting employee morale and unity
  • Enhancing workplace safety and preventing injuries
  • Improving the quality of products and services

Risks of English-Only Policies

The primary risk of implementing an English-only policy is that, if improperly drafted or implemented, it will expose the employer to discrimination claims and liability. Imposing an English-only rule also may have an adverse effect on business operations by preventing employees whose primary language is not English from interacting at work in their most effective language.

Additionally, English-only policies may diminish morale among employees who lack English skills. These employees may be frustrated by the struggle to communicate effectively and will likely receive significantly more discipline for violating the English-only policies than native English-speaking employees

When Are English-Only Policies Lawful?

Title VII of the Civil Rights Act of 1964 (Title VII) does not expressly prohibit discrimination on the basis of native language. Yet, certain English-only policies continue to be fodder for lawsuits. As described in detail below, the Equal Employment Opportunity Commission (EEOC) and courts have outlined the contours of permissible English-only rules that provide guidance on drafting and implementing such policies.

Title VII – National Origin Discrimination

Title VII prohibits employment practices that discriminate against employees on the basis of their national origin.1 Title VII does not expressly identify language as a protected characteristic nor does the statute expressly prohibit Englishonly policies. Nevertheless, English-only policies can, in some circumstances, indicate discrimination based on national origin because national origin is closely tied to a person’s native language.

EEOC Guidance on English-Only Policies

The EEOC states that rules that require employees to speak only English in the workplace are unlawful unless the employer can show that they are job related and consistent with business necessity.2 To meet the burden of establishing business necessity, the employer must present detailed, fact-specific, and credible evidence showing that the language-restrictive policy is necessary to safe and efficient job performance or safe and efficient business operations.3 While courts are not bound by the EEOC’s guidance and have diverged from it, cautious employers should nevertheless comply with the EEOC guidelines to survive any scrutiny by the administrative agency and avoid running afoul of courts that follow its guidance.

The EEOC has delineated rules addressing when English-only rules are permissible. According to the EEOC, English-only rules are unlawful when the employer does either of the following:

  • Adopts them for discriminatory reasons. Examples include propagating English-only rules to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers.
  • Applies them in a discriminatory manner. Examples include prohibiting employees from speaking one foreign language but not others or imposing more severe discipline on employees of one particular national origin who violate the policy.

English-only rules are more likely to be deemed job-related and consistent with business necessity when the employer does not apply the rules at all times and/or to all jobs in the workplace, since having employees speak English during lunch, breaks, and other personal times while on the employer’s property is not necessary to promote safe and efficient job performance or business operations.

English-only rules may also be justified when the employer limits their application to:

  • Communications with customers who only speak English
  • Communications with supervisors or co-workers who only speak English
  • Emergencies or other situations in which workers must speak a common language to promote safety
  • Cooperative work assignments in which the English-only rule is needed to promote efficiency4

Notice Requirements

Even if there is a business need for an English-only rule, the EEOC guidelines state that the agency will consider the rule discriminatory if the employer fails to notify its workers about the rule and subsequently takes adverse action against the individual for violating the rule. Specifically, the employer must notify workers about when or under which circumstances they are to speak only English and the consequences they will face for violating the rule.5

Court Guidance on English-Only Policies

Courts are not bound by EEOC guidance, and at least two circuits have rejected the EEOC guidelines on English-only policies.6 To date, the U.S. Supreme Court has not examined the lawfulness of English-only policies, so the legality of a particular English-only rule may vary according to each jurisdiction’s own precedent. Thus, be sure to research case law in your circuit when assessing the validity of an employer’s language requirements

As discussed below, plaintiffs may prove that an English-only policy is discriminatory through a disparate treatment or disparate impact claim.

Disparate Treatment Claims

Disparate treatment occurs when an employer takes an adverse action against an employee due to his or her membership in a protected class. A plaintiff may prove disparate treatment through direct evidence—such as discriminatory remarks made by decision-makers—or, more commonly, through circumstantial evidence. If there is no direct evidence of discrimination, a plaintiff usually must satisfy the three-part burden-shifting test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):

  1. The plaintiff must first establish a prima facie case of discrimination by showing four elements:
    1. He or she is a member of a protected class
    2. He or she is qualified for the position
    3. He or she suffered an adverse employment action
    4. The circumstances give rise to an inference of discrimination

  2. The burden of production (but not persuasion) then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision.
  3. The burden then shifts back to the plaintiff to show that the employer’s proffered reason is pretextual and that intentional discrimination motivated the adverse action.

The Prima Facie Case

Discriminatory intent. Courts evaluating disparate treatment claims based on English-only policies often assess whether the employer implemented the policy with discriminatory intent in order to determine whether the plaintiff has made a prima facie case of discrimination.7

Courts have generally held that English-only policies are not, alone, evidence of discriminatory intent under Title VII.8 However, such policies may violate Title VII when other evidence besides the policy itself suggests the employer enacted it because of discriminatory animus toward the employee’s national origin.9

For example, courts have found prima facie discrimination where:

  • The employer laid off a majority of the Hispanic employees and replaced them with non-Hispanic employees, Hispanic employees had to use a pay phone outside the building to make personal calls in which they spoke Spanish, and the president of the company used ethnic slurs.10
  • Management was aware that the English-only policy would lead to mocking of Hispanic employees, the employer adopted the policy without consulting Hispanic employees, and the defendant’s mayor derided the Spanish language in a news interview.11

Adverse action requirement: bilingual employees. It is important to note that disparate treatment claims are only actionable when an employee suffers an adverse action. Thus, employee plaintiffs who are bilingual may not prevail by demonstrating the mere existence of an English-only policy since, being fluent in English, they are not adversely affected by the requirement to speak English on the job.12 Rather, they must demonstrate that they suffered an adverse employment action related to the employer’s English-only rule.13

Legitimate, Non-discriminatory Reason

If the plaintiff succeeds in making a prima facie case, the burden shifts to the defendant employer to articulate a legitimate, non-discriminatory reason for the English-only policy. Courts have found the following to be legitimate, nondiscriminatory reasons for having an English-only policy:

  • Relieving a tense working environment between English and Spanish-speaking employees14
  • Helping hospital patients feel comfortable and allowing English-speaking supervisors to properly monitor their employees’ work performance15

Pretext

If the employer meets its burden, the plaintiff must prove that the employer’s explanation is pretextual. Note that an employer’s rescission of an English-only policy that was previously in place is not likely to be deemed an indication or admission of discrimination.16 Therefore, employers concerned about the lawfulness of their policies may rescind them without fearing these consequences.

Disparate Impact Claims

Plaintiffs may also prevail under Title VII on a disparate impact theory of discrimination where an employer has a policy or practice that, although neutral on its face, has the effect of discriminating against the members of a protected class. In the context of English-only policies, courts analyze disparate impact claims using the following three-stage burden-shifting framework:

  1. The plaintiff must demonstrate that the defendant uses a particular employment practice that causes a disparate impact on the basis of national origin.
  2. The burden then shifts to the defendant to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity.
  3. The burden then shifts back to the plaintiff to establish an alternative policy or practice that would satisfy the asserted business necessity without producing the disparate effect.17

The Prima Facie Case

As with disparate treatment claims (as discussed above), fully bilingual employees may not prevail on disparate impact claims on the basis of a narrowly tailored English-only policy alone. This is because a policy requiring employees to speak only English while working does not deny any privileges of employment to bilingual employees.18

On the other hand, courts have found for the plaintiff where:

  • The English-only policy applied only to employees who are not fluent in English.19
  • The English-only policy required employees to speak English at all times, including during lunch, breaks, and other personal time.20

Business Necessity

If the plaintiff succeeds in his or her prima facie case, the defendant must demonstrate that its English-only policy was job-related and consistent with business necessity. Courts have found the following justifications for an English-only policy to be valid:

  • Enhancing the politeness and approachability of sales staff as components of customer service21
  • Preventing employees from intentionally using their fluency in Spanish to separate and intimidate members of other ethnic groups22

Less Discriminatory Alternatives

Courts have emphasized that an important factor in determining business necessity is whether or not there is a less discriminatory alternative to the English-only policy that would serve the same purpose.

In Sephora, the plaintiffs failed to demonstrate a less discriminatory alternative to the employer’s Englishonly policy. Specifically, the alternative measure plaintiffs suggested failed because it did not address when the employer could have required employees to speak English.23

What Are the Key Considerations in Drafting an English-Only Policy?

When drafting an English-only policy, consider taking the following measures to minimize the risk of liability

Determine Whether to Have an English-Only Policy at All

As discussed at the beginning of this article, languagerestriction policies are not without risks. Apart from the legal exposure an employer faces if its English-only policy is overbroad, unjustified, or applied in a discriminatory manner, employers also risk causing inefficiencies and diminishing morale among their workers by forcing them to communicate in a language that they are not comfortable speaking.

Nevertheless, employers whose businesses are impeded by employees not speaking English on the job may view these risks as justifiable. Consider whether the employer’s concerns are based on actual, practical concerns, or merely theoretical ones. Has the employer received customer complaints or other feedback from clients requesting that the company’s employees speak English around them? Have supervisors complained that they have trouble managing or ensuring the safety of employees when they do not speak English? And, if so, is there an alternative solution to the problem the employer is facing besides implementing an English-only policy? If an employer finds that workplace safety, efficiency, coordination, customer relations, supervision and evaluation, or employee morale and unity are suffering (and there is no adequate alternative solution), it should consider enacting a narrowly tailored English-only policy.

Consider the Composition of the Workforce

Before implementing an English-only policy, employers should consider the effect it will have on its workforce. If all of the affected individuals are bilingual, an English-only policy is far less likely to adversely affect employees. Similarly, if the workforce is entirely American-born, the employer is less likely to encounter a national origin discrimination claim.

If, on the other hand, a significant number of employees are foreign-born and struggle to speak English–or the employer’s job descriptions do not require employees in certain positions to speak English–then the policy is almost certain to adversely affect and disparately impact non-native speakers. It is imperative for employers in the latter scenario to have a compelling non-discriminatory business reason for implementing the policy.

Ensure Business Necessity

To stem disparate impact claims, employers should ensure their English-only policies are consistent with business necessity (i.e., necessary for an employer to operate safely or efficiently).

Examples of circumstances where employers generally may require employees to speak English include when they:

  • Perform job duties that involve safety concerns, including handling potentially dangerous substances or operating heavy equipment or machinery
  • Regularly converse with customers who speak English
  • Have English-speaking supervisors who monitor their performance
  • Use their fluency in a foreign language to separate and intimidate members of other ethnic groups

On the other hand, an English-only policy implemented to alleviate concerns that employees are speaking foreign languages during breaks or while off-duty is far harder to justify as a business necessity.

Because of the potential disparate impact of English-only policies on employees of foreign national origins, employers should have detailed, fact-specific, and credible evidence to show the business necessity of these policies to pass muster under Title VII.

Clearly State Objectives

Clearly state the objectives of the English-only policy in the policy itself. Acceptable objectives that you may wish to state include:

  • Encouraging inclusiveness and harmony among employees
  • Promoting better collective communication and distribution of information to team members
  • Ensuring better supervision of employee duties by managers
  • Ensuring better communication with customers, as well as maintaining politeness in front of English-speaking customers

Limit the Circumstances in Which the Policy Applies

An English-only policy should be limited to only the times, job positions, circumstances, and locations that speaking English is a business necessity. Narrowly tailoring the policy’s application minimizes the disparate impact on non-English speaking employees and bolsters the employer’s case that its policy is a business necessity.

The employer should also provide exceptions to the Englishonly policy, such as by allowing employees to speak in a foreign language with customers or vendors who prefer to speak in other languages or permitting employees to report emergencies in their native tongue.

Provide Adequate Notice

Under the EEOC rules, employers must provide notice to employees to communicate the circumstances in which they are required to speak English and the consequences of violating the English-only policy. Consider providing notice in multiple languages and having a grace period before the effective date of the policy. If employees in certain positions will be required to speak English, include that requirement in the job description to avoid misunderstandings after hiring the applicant.

Limit Discipline

Limit disciplinary measures to willful violations. Not punishing employees for inadvertent violations aids in the establishment of a business necessity. Consider including a clause in your English-only policy explicitly stating that they will not be disciplined for using non-English in emergency situations or in circumstance that cause the employee to speak in a language other than English due to the employee’s comfort with such language.

Consult Employees Affected by the Policy

Consult with employees who speak languages other than English before, during, and after drafting the policy to address any concerns they might have. Should the policy become the subject of litigation, consulting with the affected employees will bolster the employer’s argument that they did not harbor any discriminatory animus in creating the policy.

Consider State Law

While Title VII does not expressly prohibit discrimination against native language or English-only policies, some jurisdictions have passed laws governing English-only policies. For example, under Illinois law, it is unlawful for an employer to implement an English-only policy for “communications that are unrelated to the employee’s duties.”24 California and Tennessee law allow employers to implement English-only policies at certain times if the rule is justified by a business necessity and employees are notified of the circumstances and times when they must speak only in English and of the consequences of violating the rule.25 Thus, before drafting and implementing an English-only policy, be sure to research state and local laws to ensure compliance.

What Are the Best Practices for Implementing and Enforcing an English-Only Policy?

When implementing and enforcing an English-only policy, consider taking the following steps to minimize the risk of legal action.

  • Obtain employee acknowledgments. Employers should consider including this policy in their employee handbooks or presenting it to employees during the onboarding process. The employer should make sure that employees sign and acknowledge that they have received and understand the policy and consent to its terms. If the employee has difficulty understanding English, offer the employee a version of the policy written in his or her native tongue to ensure that his or her consent is informed.
  • Enforce the policy evenhandedly. When implementing and enforcing English-only policies, employers should apply the policies uniformly to all employees regardless of their preferred language. An employer who applies the policy selectively or doles out more severe discipline to certain groups or speakers of particular languages creates a strong inference of discriminatory animus.
  • Train supervisors. Provide training to supervisors and management on how to enforce the English-only policies fairly and consistently. You should also make sure managers know how to properly address complaints that the policy is not being followed or fairly applied and who to contact in Human Resources to investigate the complaint.
  • Implement and enforce anti-discrimination policies. When determining whether an English-only policy was motivated by discriminatory animus, courts often look to other evidence of discriminatory behavior. By limiting discrimination in the workplace, employers minimize the risk of falling victim to such claims.
  • Offer English lessons. Consider providing English training to workers with limited English skills to help advance the policy.

Jamala S. McFadden is a co-founding partner of The Employment Law Solution: McFadden Davis, LLC. Her practice focuses on all aspects of employment law, including advice and counseling, representation in litigation and agency matters, and corporate transactions. She has advised more than 100 small-to-midsize to Fortune 100 organizations in varied industries. McFadden conducts internal investigations and has trained more than 1,000 management and staff employees on harassment and discrimination policies. Additionally, she drafts workforce-related agreements, policies, and handbooks and assists executives in employment contract matters, including negotiating severance agreements. Chandra C. Davis is a co-founding partner of The Employment Law Solution and has been practicing employment law for over 14 years. She has extensive experience as a management side lawyer and as a Trial Attorney for the EEOC. At the EEOC, Chandra served as first chair in over 25 litigation matters and managed investigative files for over 250 charges for the purpose of recommending the initiation of litigation in connection with various civil actions. She has also developed training programs for the EEOC and multi-national corporations. Raquel H. Crump focuses her practice on advice and counseling, litigation and agency matters, trainings, employment policies, and agreements. Her experience with a large retailer gives The Employment Law Solution insight into how to resolve employment challenges in the industry.


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Related Content

For a discussion of compliance issues under Title VII, see

> TITLE VII COMPLIANCE ISSUES

RESEARCH PATH: Labor & Employment > Discrimination, Harassment, and Retaliation > EEO Laws and Protections > Practice Notes

For more information on disparate treatment claims, see

> DISPARATE TREATMENT: KEY CONSIDERATIONS

RESEARCH PATH: Labor & Employment > Discrimination, Harassment, and Retaliation > EEOC Laws and Protections > Practice Notes

1. 42 U.S.C.S. § 2000e-2. 2. 29 C.F.R. § 1606.7. 3. EEOC Enforcement Guidance on National Origin Discrimination (see Section V.C.3.d). 4. EEOC Enforcement Guidance on National Origin Discrimination (see Section V.C). 5. 29 C.F.R. § 1606.7(c). 6. See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993); Long v. First Union Corp. of Virginia, 894 F. Supp. 933, 940 (E.D. Va. 1995), aff’d, 86 F.3d 1151 (4th Cir. 1996); but see EEOC v. Synchro-Start Prods., 29 F. Supp. 2d 911, 915 (N.D. Ill. 1999) (following EEOC guidelines in upholding Title VII claim based on English-only rules). 7. See Long, 894 F. Supp. at 941–42. 8. See, e.g., Lopez v. Flight Servs. & Sys., 881 F. Supp. 2d 431, 439–40 (W.D.N.Y. 2012). 9. Id. 10. EEOC v. Premier Operator Servs., 113 F. Supp. 2d 1066, 1071 (N.D. Tex. 2000). 11. Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir. 2006). 12. Lopez, 881 F. Supp. 2d at 440. 13. Id. 14. Long, 894 F. Supp. at 942. 15. Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 614 (S.D.N.Y. 2009). 16. See Long, 894 F. Supp. at 941–42. 17. EEOC v. Sephora USA, LLC, 419 F. Supp. 2d 408, 413–14 (S.D.N.Y. 2005). 18. Garcia, 998 F.2d at 1487–88. 19. Synchro-Start Prods., 29 F. Supp. 2d at 912–15. 20. Premier Operator Servs., 113 F. Supp. 2d at 1074–76. 21. Sephora, 419 F. Supp. 2d 408. 22. Long, 894 F. Supp. at 941. 23. Sephora, 419 F. Supp. 2d at 418. 24. 775 Ill. Comp. Stat. Ann. 5/2-102. 25. Cal. Gov. Code § 12951; Tenn. Code Ann. § 4-21-401(c).