Unlike most of the world, the United States does not normally require its business or government professionals to understand two or more languages in order to engage in business. If one lives or works in Geneva or Madrid, Hong Kong, Moscow or Buenos Aires, it is common to expect the average professional or executive, and most supervisory employees, to be conversant in two or more languages, often including English in today's world.
The United States, long insulated from major economic powers that required multi linguistics as a basic tool of business, has traditionally expected its people to only speak English. Recent trends in immigration coupled with the increasing internationalization of business, have eroded this aspect of American business and in the work place, where Spanish is becoming a common language in the work force, this has led some employers to react negatively to the use of foreign languages on the job site, often seeking to limit conversations and interaction to English.
The Federal government has not been amenable to this effort, seeing possible violation of civil rights and worker's rights and this article shall explore the current state of Federal restrictions on "English only" efforts of businesses in the United States.
There is no legal recognition of English as a national language in the U.S., and the issue of whether privately imposed English-only rules, particularly in the workplace, are discriminatory (and hence violative of civil rights laws) is a source of much contention.
THE FEDERAL COURT DECISIONS
English-only rules are not a new occurrence, but given the events of September 11th and its aftermath they may have renewed relevance for employers. The prevailing opinion among courts that have addressed the issue is that rules requiring employees to speak English in the workplace do not violate Title VII if the employer has a legitimate non-discriminatory reason for the rule and employees can comply with the rule. See Garcia v Gloor, 618 F.2d 264, 270 (5th Cir. 1980) ("there is no disparate impact if the rule is one that the affected employee can readily observe and nonobserve as a matter of individual preference."); Long v. First Union Corp., 894 F. Supp. 933, 940 (E.D. Va. 1995), aff'd per curiam 86 F.3d 1151 (4th Cir. 1996) (affirming, without addressing the EEOC guidelines, the district court's holding rejecting the guidelines); Gonzalez v. Salvation Army, No. 89-1679-CIV-T-17, 1991 WL 11009376, at *3 (M.D. Fla. June 3, 1991), aff'd 985 F.2d 578 (11th Cir. 1993) (affirming, without discussion, the lower court's holding that "enforcement of an English-only rule on an employer's premises under circumstances where co-employees who are working or customers who visit the employer's establishment for business purposes can overhear conversations is not a violation of Title VII of the Civil Rights Act of 1964 as applied to such person...who has the ability to speak English."); Garcia v. Spun Steak, 998 F.2d 1480, 1489 (9th Cir. 1993) (holding that the EEOC's guidelines impermissibly presume that English-only policies have a disparate impact without requiring proof of such).
Non-discriminatory reasons for English-only rules include:
- maintaining employee morale or preventing alienation of employees, see Long, 894 F.Supp. at 941 (upholding an English-only policy enacted to "prevent employees from intentionally using their fluency in Spanish to isolate and intimidate members of other ethnic groups");
- assisting management in monitoring employees, see Prado v. L. Luria & Son, 975 F. Supp. 1349, 1354 (S.D. Fla. 1997) (upholding an English-only policy enacted partially to ensure that management could understand and evaluate employees' work related communications);
- maintaining safety in hazardous environments, see Spun Steak, 998 F.2d at 1483, 1490 (upholding an English-only policy when enacted in part to enhance worker safety).
When discussing the legitimacy of English-only rules, courts have distinguished between bilingual and monolingual employees, suggesting that English-only rules may have a disparate impact, thus violating Title VII, if an employee does not speak English. EEOC v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911, 913 (N.D. Ill 1999) (holding that plaintiffs plainly state a viable claim of national origin discrimination when an English-only rule applies to employees who do not speak English); Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980) ("To a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth."); Garcia v. Spun Steak, 998 F.2d 1480, 1489 (9th Cir. 1993) (noting in dicta that in some circumstances an English-only rule may have an adverse impact on an ethnic group because "non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak," but that truly bilingual employees do not suffer any adverse impact from English-only rules).
The EEOC takes a more hostile view of English-only rules. Under its interpretation, any rule requiring employees to speak only English at all times in the workplace is presumed to violate Title VII. Speak-English-Only Rules, 29 C.F.R. §1606.7(a) (2006).
According to the EEOC's interpretation, an English-only rule is valid under Title VII only if:
- it is applied only at certain times,
- if the rule is justified by business necessity,
- the employer effectively notifies employees of the rule and the consequences for breaking it. Id. § (b)-(c).
Several district courts have chosen to follow the EEOC's guidelines. E.g. EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066, 1073 (N.D. Tex. 2000) (holding English-only rules "disproportionately burden national origin minorities because they preclude many members of these groups from speaking the language in which they are best able to communicate.").
- Employers should be careful they do not unwittingly create an English-only policy. This may occur if supervisors tell employees to speak English, even though the employer has no official policy requiring English. See Martinez v. Labelmaster, No. 96 C 4189, 1998 WL 786391, at *6 (N.D. Ill. Nov. 6, 1998) (holding a supervisor "informally imposed an 'English only' rule which required non-English speaking employees to speak English while at their work stations...."); Tran v. Standard Motor Prod., Inc., 10 F. Supp. 2d 1199, 1202 (D. Kan. 1998) (holding a supervisor created an English-only policy when he told team members to speak English during team meetings and while working).
- And practices that effectively achieve discrimination against employees who do not speak English not based on valid business reasons can lead to claims. Thus promotion and benefits, hours and working conditions that are predicated on such criteria without valid business grounds are all dangerous procedures that could be considered defacto discrimination and violation of EEOC and legal guidelines. Getting advice from counsel before implementing such procedures is a god idea.
The United States is a nation which seldom examines its own history and if it did it would see that fear of our "national language" being overcome by immigrants speaking their native tongues was a constant theme, stretching back to fears of the Irish and Germans using their languages in the eighteen and nineteenth century to Spanish in the twenty first century.
The simple fact is that almost all immigrants quickly see the value of mastery of English and both in schools and on the job site, soon become conversant in the language. One employer likened it to a "go getter" test for new employees. "If they don't try to learn English every chance they get, they clearly aren't the sort of management material we seek." Immigrants understand that.
But it is equally vital to recall that for discussion among friends and family and for enjoyment of cultural heritage, being bilingual and speaking the familiar language off the job is not only common but a vital part of people's lives. Indeed, most business people known to the author try to improve their school Spanish if their workers use that language.
This writer recalls a long conversation with a Mining manager in South Africa who had spent some years mastering Zulu and enjoyed using it whenever he could. As the "boss man" on the mine, he had no need to learn the language-his workers were smart enough to know they had to perfect their own English skills. But he stated it was also a question of respect. "If I chose to work with them, if I want to get to know what matters to my own employees, I should know some of their language. They like it when I try. And I like knowing what they are saying…"