English may be our nation's official language, but that doesn't mean all Americans speak it. The U.S. Census Bureau reports that nearly 32 million people over the age of 5--14 percent of all U.S. residents--speak a language other than English in their homes. And more than half the 24 million foreign-born U.S. residents speak little or no English.
These barriers pose big problems in the workplace. According to Lowell Gallaway, an economist at Ohio University in Athens, the lack of English proficiency among foreign-born U.S. workers costs employers $65 billion a year in lost productivity. And customers and co-workers often complain about employees speaking other languages, accusing them of being rude or mocking them in a language they can't understand.
In response to these problems, a growing number of employers have established policies stating that only English may be spoken on the job. By doing so, however, you risk incurring the wrath of the Equal Employment Opportunity Commission (EEOC), which is opposed to English-only rules and prosecutes companies that impose them for national-origin discrimination. In general, courts have been supportive of employers' policies, as long as there's a good reason for them. In two major cases, federal courts have stated they disagree with EEOC guidelines on the matter and refuse to be ruled by them.
Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.
Ethnicity and the EEOC
In this age of cultural pride, immigrants often choose to use their native language for casual conversation. At the same time, racial and ethnic tensions in the workplace have gone beyond black and white to include other minority groups. This tension can escalate when people speak in different languages. So can misunderstandings about work, safety risks, inefficiencies and the inability to communicate with supervisors.
"You need effective and immediate communication between supervisors and staff," says Rita Pando, senior attorney advisor in the EEOC's Title VII/Age Discrimination & Employment Act/Equal Pay Act Division. "For example, [when working] with dangerous equipment, people must be able to understand one another."
Nonetheless, the EEOC has taken the position that English-only rules are repugnant, especially when they're applied across the board. Prohibiting employees from speaking the language they speak most comfortably reduces the person's employment opportunities, according to EEOC guidelines on the subject, and may create an "atmosphere of inferiority, isolation and intimidation."
The EEOC distinguishes between policies that restrict conversations on or about the job to English only from those that prohibit speaking other languages at all times, including lunch time and breaks. The first kind of policy may be acceptable, but only if it's narrowly tailored, the company shows a business necessity for the rule, and it's explained clearly to employees, along with the consequences of violation. Banning foreign languages under any circumstances, however, is difficult to justify, Pando contends.
In one EEOC action, Chinese employees at two American Red Cross laboratories in Maryland were prohibited from mixing Chinese comments into their conversations during office hours and into telephone conversations to family members. The EEOC obtained a settlement providing for termination of the rule and sensitivity training for employees. In another case, a Latina employee charged that the English-only rule subjected her to unequal terms and conditions of employment. The EEOC extracted a settlement that included not only termination of the rule but also $30,000 in damages for the employee.
Courts Fight Back
When this type of case makes it to court, however, employers often win. In the leading case in this realm, Garcia v. Spun Steak Co., 24 of the company's 33 workers were Spanish-speaking, and most of them were bilingual. The Latino employees liked to chat with each other in Spanish while working on an assembly line. Some of their co-workers, notably a Chinese-American and an African-American, complained that the Latino workers were making derogatory, racist comments about them in Spanish. To promote racial harmony, the company president instituted an English-only rule.
The EEOC investigated and declared the rule a violation of Title VII (refers to the Civil Rights Act of 1964, which deals with employment discrimination). A district court agreed, finding a disparate impact on the Latino workers. However, the Ninth Circuit Court of Appeals dismissed the case, ruling that there was no apparent evidence of national-origin discrimination--without even getting to the business reasons. The court said it disagreed with the EEOC guideline that states that an English-only rule in itself is presumed to have an adverse impact on minorities. Show us the adverse impact, the court ruled. Since the named plaintiffs were all bilingual, they wouldn't be harmed by having to speak English. "Title VII does not protect the ability of workers to express their cultural heritage at the workplace," the court noted.
In a similar case, Long v. First Union Bank, Latino tellers objected to a request from their supervisors not to speak Spanish at the bank except to assist Spanish-speaking customers, allegedly because they were creating a hostile environment by speaking Spanish in the presence of other employees. The EEOC claimed discrimination, but the U.S. District Court for the Eastern District of Virginia dismissed the case. The court cited the Spun Steak case and expressly disagreed with EEOC guidelines.
The strong chance of winning in court, though, is little comfort to employers who don't need the EEOC breathing down their necks. To meet your management goals and stay out of trouble, be careful with English-only policies, advises Teresa Brady, a business law and bankruptcy attorney in Bensalem, Pennsylvania. It's best to follow the EEOC guidelines as closely as possible, making sure your policy is narrowly tailored and has a strong business reason for being in effect.
In addition, Brady advises entrepreneurs to distribute a policy prohibiting harassment and discrimination on the basis of national origin. "It should have specific examples and a statement of what happens if employees violate the policy," she says. "Companies should also have an active diversity training program." If you help employees understand the ethnic groups they work with and the reasons for your policy, they're less likely to object to it.
Equal Employment Opportunity Commission, http://www.eeoc.gov
The Law Offices of Teresa Brady, 1928 Bristol Pike, Bensalem, PA 19020, (215) 244-4617