• When and How Can You Use 'English Only' Rules in the Workplace?
  • May 17, 2007 | Author: Amy G. McAndrew
  • Law Firm: Pepper Hamilton LLP - Berwyn Office
  • Philadelphia landmark Geno’s Steaks made headlines when it posted a sign that reads, “This is America. When ordering, please speak English.” The sign received national media attention and caught the eye of the Philadelphia Commission on Human Relations, which filed a complaint against Geno’s alleging discrimination. The Commission found probable cause to believe that the sign is discriminatory because it could make some customers feel unwelcome. Although Geno’s case deals with an attempt to apply an “English only” rule to customers, it highlights a growing issue in America’s workplaces.

    Since 1980, according to the U.S. Census Bureau, the number of U.S. residents who are defined as “limited English proficient” has more than doubled, from 10.2 million to 21.3 million. In 1980, fewer than 1-in-20 Americans struggled with English. Now, nearly 1-in-12 does. As the number of immigrants increases, English is a second language for more employees and applicants. Employers may be asking, “Under what circumstances can I impose an ‘English only’ rule on my workforce?”

    In Pennsylvania, most law suits challenging “English only” rules are brought under Title VII of the Civil Rights Act of 1964 or the Pennsylvania Human Relations Act alleging discrimination on the basis of national origin. Claims may be brought either as disparate impact claims (where the employment practices are facially neutral but fall more harshly on one group and cannot be justified by business necessity) or disparate treatment claims (where the employer is alleged to treat some people less favorably than others because of national origin). No matter what theory the plaintiffs advance, such a claim can be costly. For example:

    • In April 2001, the Equal Employment Opportunity Commission (EEOC) reached a $2.4 million settlement against a Texas university where 18 Hispanic housekeepers allegedly were ordered to speak only English on the job. Some employees did not speak English, and all were forbidden to speak Spanish, even during breaks.
    • In July 2003, a Colorado casino agreed to pay $1.5 million to settle a national origin discrimination suit with the EEOC on behalf of a class of Hispanic employees who alleged that they were verbally harassed and subjected to “English only” rules. The employees alleged that managers or other non-Hispanic employees would shout, “English! English!” at the Hispanic employees during encounters.
    • In May 2006, the EEOC announced the settlement of a national origin discrimination suit against Highland Hospital of Rochester, Inc. and Strong Health for $200,000 on behalf of a class of Hispanic employees. The employees, who worked in housekeeping, were subjected to “English only” rules without any business justification. One manager reportedly told the employees, “This is America, Speak English.”

    Employers need a business reason for an “English only” rule. In general, an “English only” rule can be justified by “business necessity” – and is more likely legal – if the employer needs employees to speak English to operate its business safely or efficiently. In its Compliance Manual, the EEOC offers examples of valid “English only” rules:

    • 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; and
    • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

    As with any policy, an employer adopting an “English only” rule should ensure that all affected employees are notified about the rule and about any disciplinary consequences for rule violations. The employer can provide this notice at a meeting, via e-mail or in the company newsletter. Provide notice in English and the other languages spoken by employees.

    Employees for whom English is a second language may become targets for discrimination or harassment by their co-workers. Employers have an obligation to protect those employees and to ensure that they are not discriminated against or harassed based upon their national origin. All employers should have in place anti-discrimination and anti-harassment policies that prohibit discrimination based on national origin and procedures to stop it.

    If your business has an “English only” rule or you are thinking about adopting one in your workplace, consult with counsel to develop a policy that will address your business needs while protecting you against possible discrimination claims. For additional information, you may wish to consult the EEOC’s Compliance Manual on National Origin Discrimination. The Manual can be accessed at www.eeoc.gov/policy/docs/national-origin.html.