Topic Spotlight

Workplace "English-only" policies are risky business, says Pepper Hamilton

The media attention last year prompted by the posting of a sign at Philadelphia landmark Geno's Steaks requesting customers to speak English when ordering raises a question facing more and more businesses.

With the number of U.S. residents who do not speak English fluently more than doubling since 1980, more businesses are exploring the legality of imposing "English-only" policies on employees and applicants, according to Pepper Hamilton LLP.

Since 1980, the number of U.S. residents who do not speak English fluently has more than doubled, from 10.2 million to 21.3 million, according to the U.S. Census Bureau. Although the Geno's sign applied to customers—and was deemed discriminatory by the city's human relations commission—it highlights a growing issue in America's workplaces.

"Because English is a second language to an increasing number of employees and applicants, more businesses are faced with making this complicated decision," said Amy G. McAndrew, associate with Pepper Hamilton LLP. "In general, an 'English-only' rule will be justified by business necessity, and is more likely to pass legal scrutiny if it is needed for an employer to operate its business safely or efficiently."

The Equal Employment Opportunity Commission (EEOC), in its Compliance Manual, offers the following examples of situations in which business necessity would justify an "English-only" rule:

• For communication with customers, co-workers, 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.
• To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

Under Title VII of the Civil Rights Act of 1964, and various state laws, "English-only' policies cannot unfavorably affect only employees of a certain race or national origin. "Employers adopting an 'English-only' rule should ensure that all affected employees are notified about it, and about any disciplinary consequences for rule violations. Employers can provide notice in meetings, e-mails, or other written communication. It may be necessary for an employer to provide notice in English and the other languages spoken by employees," according to McAndrew.

Protect non-English speaking 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 on their national origin. Employers should have anti-discrimination and anti-harassment policies in place that specifically provide protection based on national origin. Employers must take all reasonable steps to stop national origin discrimination and/or harassment when they become aware it has occurred," McAndrew said.

Those who violate the law are often subject to costly penalties. For example:

• In April 2001, the 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 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."

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, consult the EEOC's Compliance Manual on National Origin Discrimination www.eeoc.gov/policy/docs/national-origin.html.

Source: Pepper Hamilton LLP is a multi-practice law firm with 450 attorneys in Pennsylvania, New Jersey, Delaware, New York, Michigan, California, Massachusetts and Washington, D.C.; www.pepperlaw.com.

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