As the workforce in our country has continued to change over the last 20 years, it is reported that approximately 17.5% of the population speaks a language other than English. That equates to roughly 45 million Americans. Of those, nearly one-fourth speak little or no English. In light of this diversity in the spoken language, we are seeing an increase in the number of employers implementing "English-only" policies in their workplaces. That means, employers a restricting, or even prohibiting, employee communications in any language other than English. But is it legal?
The nature of English-only workplace policies
Many English-only workplace policies range from requiring employees to speak English when performing specific job duties, to actually requiring that English be spoken in the workplace at all times. By its very nature, an English-only policy is at best controversial and generally criticized by most as a way to discriminate against employees with foreign backgrounds. From 1996 to 2000, there has been an increase in the number of EEOC charges alleging English-only workplace policies from 91 to 443 charges.
The EEOC's position on English-Only policies
Though most people assume that an English-only workplace policy would be per se discrimination, Title VII does not expressly prohibit any form of discrimination based on spoken language. Still, the EEOC takes the position that these types of policies lend to discrimination based on national origin, which is of course illegal. The EEOC has established, under 29 C.F.R. § 1606.7, that English-only policies are presumptively a form of national origin discrimination. As the EEOC recognizes in its published regulations, "the primary language of an individual is often an essential national origin characteristic."
The business necessity exception may apply
The EEOC finds that English-only policies that prohibit employees from speaking their native language at all times will "disadvantage an individual's employment opportunities on the basis of national origin" and "could result in a discriminatory working environment." On the other hand, polices that only limit the use of another language to certain times in the workplace may be permissible, as long as they are justified by "business necessity."
In addition to the "business necessity" requirement, the regulation also requires that, "an employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule." As a result, if an employer does not follow this notice requirement and later makes an adverse employment decision based on an employee's violation of the English-only rule, then the EEOC could likely consider the employer's application of the English-only rule as "evidence of discrimination on the basis of national origin."
Does that make these policies illegal?
Despite the EEOC's clear guidance on this issue, some federal courts have rejected this notion when raised in Title VII lawsuits involving English-only policies. So, technically, there is no federal law on the books at this point that explicitly makes this type of workplace policy illegal. Regulations that are issued by EEOC without explicit authority from Congress are considered "interpretive regulations," and do not create any new legal rights or obligations. These regulations can be followed by courts only to the extent they find EEOC's positions to be persuasive. In other words, the EEOC's regulations are not binding law.
However, a few states have passed their own laws relating to the use of English-only policies in the workplace. That means employers who are considering implementing, English-only policies, or already have them in place, need to be sure they are in compliance with any applicable state law.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.