Thursday, December 30, 2010

Are English-Only Workplace Rules Legal? Probably, If Justified On Business Grounds And Narrowly Applied.

A 2003 report by the U.S. Census Bureau, based on Census 2000 data, found that 18% of the total population aged 5 and older (47 million people) spoke a language other than English at home.  This was an increase from 1990 (14% or 31.8 million people) and 1980 (11% or 23.1 million people).  Census 2010 data almost certainly will show a further increase in the number of foreign-language speaking persons in the United States.  Not surprisingly, the most common non-English language spoken in the United States, by far, is Spanish, spoken by 28.1 million people (according to Census 2000 data).  Other languages spoken by more than 1 million people include Chinese (2 million), French (1.6 million), German (1.3 million), Tagalog (1.2 million), Vietnamese (1 million), and Italian (1 million).  The number and variety of foreign-language speaking persons is even greater in certain large metropolitan areas (for example, Los Angeles and New York City).

What happens when foreign-language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking?  Very frequently, these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work.  Are such rules legal?  Do they violate laws against employment discrimination based on race, ethnicity, or national origin?

The U.S. Equal Employment Opportunity Commission, which is responsible for administering and enforcing most federal employment discrimination laws, e.g., Title VII of the Civil Rights Act of 1964, has adopted a strict guideline for English-only rules.  See 29 C.F.R. s. 1606.7.  According to the EEOC:

(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the
language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.  Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.

(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.

Thus, the EEOC takes the position that blanket English-only rules are inherently discriminatory, but limited English-only rules can be justified by business necessity.  Although the EEOC guidelines do not have the force of law, they are shown considerable deference by courts applying Title VII and other statutes under the EEOC's jurisdiction.  See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); EEOC v. Beauty Enterprises, Inc., No. 01-CV-378 (AHN), 2005 WL 276822 (D. Conn. Oct. 25, 2005).

An excellent analysis by a federal district court in New York of the legality of English-only workplace rules is found in Pacheco v. New York Presbyterian Hospital, 593 F. Supp.2d 599 (S.D.N.Y. 2009).

In Pacheco, the plaintiff worked as a "patient representative" in a major New York City hospital.  He was an American citizen, born and raised in Puerto Rico, and fully bilingual in English and Spanish.  After several patients complained to management about hospital employees speaking Spanish around them -- the patients believed that the employees were gossiping about them and making jokes about them in a language the patients couldn't understand -- the plaintiff's manager told the plaintiff that he was to speak only English when performing his duties, unless he was assisting a Spanish-speaking patient.  Shortly thereafter, the plaintiff complained to the hospital's human resources department, which took no action.  The disputed ended up in court, where the plaintiff claimed national origin discrimination, under theories of disparate treatment, disparate impact, hostile work environment, and retaliation.  The court rejected each of the plaintif's arguments and granted summary judgment to the hospital.

The court's analysis under each theory focused on the hospital's proffered justification for the English-only rule.  Specifically, the hospital argued that the English-only rule -- which was a limited rule that did not prohibit the plaintiff from speaking Spanish during breaks and when not in the vicinity of patients -- was necessary for two reasons:  first, to promote effective customer (patient) relations; second, to enable the plaintiff's manager (who did not speak Spanish) to supervise and evaluate the plaintiff properly.  The court found that these reasons were non-pretextual, legitimate, and lawful:  "Given this undisputed record, the case law supports Defendant's claim of business necessity."  The court noted that this conclusion was consistent with the EEOC Compliance Manual, which provides that English-only rules may be justified "for communication with customers, coworkers or supervisors who only speak English" 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."  See also EEOC v. Sephora USA, LLC, 419 F. Supp.2d 408 (S.D.N.Y. 2005) (upholding English-only rule that only applied when employees were on the sales floor interacting with customers, not when no customers were present or when employees were on break). 

In sum, English-only rules that apply to an employee's actual job performance, but provide exceptions for non-work time and non-work communications, probably are legal unless they are applied in an arbitrary or discriminatory manner (e.g., being enforced against speakers of certain foreign languages but not others; see here).  But blanket prohibitions on employees speaking non-English languages in the workplace probably are not legal.  Such rules are deemed inherently discriminatory by the EEOC guidelines and appear to contradict the reasoning set forth in the Pacheco and Sephora USA decisions.  Of course, each workplace situation will be analyzed on a case-by-case basis.