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