One of the greatest benefits of our nation’s growth is the diversity that comes with growth. It is undisputable that more and more individuals are calling America home. As a result, the workplace is becoming more diverse and more employees are speaking other languages than English. According to the Center for Immigration Studies (“CIS”), more than 67.3 million residents in the United States now speak a language other English at home. CIS found that this number more than doubled since the 1990s. Texas ranks among the leading states that has a large share of residents speaking a foreign language at home. I expect these numbers to continue to increase exponentially in the decades to come.
Unfortunately, not all employers value diversity and bilingual employees. Some employers have attempted to implement English-only policies, stating that no other language than English should be spoken in the workplace. As you can imagine, these policies generally tend to discriminate against employees who may feel more comfortable speaking their native language. While Title VII does not explicitly prohibit discrimination based on an employee’s native language, about a year ago, I found myself making the argument that discrimination based on an employee’s native language is prohibited discrimination. I soon learned that the EEOC had established guidance regarding English only rules, which changed the trajectory of my entire case.
EEOC guidance states, “[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.” Based on this guidance, the EEOC will presume that English-only policies violates Title VII.
Are English-only workplaces illegal? The short is yes, unless the employer can establish that the English-only rule is justified by a business necessity. The business necessity rule can only be applied at certain times and is not likely to apply when the employer has not tailored the English-only rule to meet a business need.
If an employer believes there is business necessity for an English-only rule at certain times, it must provide notice to the employee of when the English only rule is required and the consequence for not following English-only rule at certain times. This notice can be provided in any reasonable manner such as an email or in a personal meeting. According to the EEOC, in some instance, the employer may need to provide notice in the employee’s native language. An employer’s failure to provide the employee with reasonable notice that results in an adverse action against the employee will be considered evidence of discrimination on the basis of national origin.
English-only rules do not always and will not likely appear in the company’s policy book. This type of discrimination may occur when a supervisor or manager is forcing an employee to speak English rather than another language. An act that effectively discriminates against non-English speaking employees could be evidence of nation origin discrimination.
If your employer has implemented an English-only rule in your workplace, or you believe you are being discriminated on the basis of your national origin, you should contact our office immediately to schedule a consultation with an employment attorney.