Are English-Only Policies Legal?
As someone who grew up in Mexico City in a home where three languages were spoken (I spoke Spanish with my brother and my friends, French with my mother, and English with my father), I have never been uncomfortable in a workplace where employees might speak in a foreign language, even one that I don’t speak.
Notwithstanding my own comfort with multilingual workplaces, I recognize that employers often do have legitimate justifications for having English-only policies. For example, tensions can arise if two employees speak together in a language that a third employee doesn’t understand. “Are they talking about me?”, the third employee may wonder. Safety can also be undermined if your workplace has become a Tower of Babel. This is especially true in manufacturing facilities, refineries or chemical plants where it is important for everyone to communicate in a single lingua franca.
On the other hand, there is less business justification for English-only policies that apply to private conversations between employees on break or to employees that the employer knows barely speak English. Such situations are common in restaurant kitchens or the housekeeping departments of hotels, where a great majority of employees may speak a language other than English. In those situations, the English-only policy could be viewed in potential litigation as one that creates a hostile work environment based on national origin.
But are English-only policies legal? Generally speaking, yes! While the EEOC has taken the position that an employee can establish a prima facie case of disparate impact discrimination by proving existence of an English-only rule, courts have generally been willing to accept employers’ business justifications for their policies.
So when does an English-only policy violate the law? A good example of a problematic English-only policy was provided this week when a San Antonio resort entered into a $2.6 million settlement with the EEOC. The resort’s unwritten English-only policy was especially draconian in that it applied to Spanish-speaking employees throughout the property, regardless of their position, including during their lunch breaks. The resort’s defense was further undermined by the fact that there was evidence of managers referring to Hispanic employees with derogatory terms, which suggested that the policy was driven by racial animus rather than business justifications. Finally, there was evidence that the resort only targeted Spanish-speaking employees because it did not apply the policy to employees who spoke other foreign languages.
If an employer decides to adopt an English-only policy, it’s best if the policy is applicable only when the employees are actually working and that both the policy and its purpose are clearly communicated to the employees. It also helps if the employer is seriously committed to maintaining a discrimination-free workplace and does not tolerate discrimination against employees because of their national origin or native language.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.