Watch Your Language If you require employees to speak only English, you'd better beware of the EEOC.

English may be our nation's official language, but thatdoesn't mean all Americans speak it. The U.S. Census Bureaureports that nearly 32 million people over the age of 5--14 percentof all U.S. residents--speak a language other than English in theirhomes. 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 toLowell Gallaway, an economist at Ohio University in Athens, thelack of English proficiency among foreign-born U.S. workers costsemployers $65 billion a year in lost productivity. And customersand co-workers often complain about employees speaking otherlanguages, accusing them of being rude or mocking them in alanguage they can't understand.

In response to these problems, a growing number of employershave established policies stating that only English may be spokenon the job. By doing so, however, you risk incurring the wrath ofthe Equal Employment Opportunity Commission (EEOC), which isopposed to English-only rules and prosecutes companies that imposethem for national-origin discrimination. In general, courts havebeen supportive of employers' policies, as long as there'sa good reason for them. In two major cases, federal courts havestated they disagree with EEOC guidelines on the matter and refuseto be ruled by them.

Steven C. Bahls, dean of Capital University Law School inColumbus, Ohio, teaches entrepreneurship law. Freelance writer JaneEaster Bahls specializes in business and legal topics.

Ethnicity and the EEOC

In this age of cultural pride, immigrants often choose to usetheir native language for casual conversation. At the same time,racial and ethnic tensions in the workplace have gone beyond blackand white to include other minority groups. This tension canescalate when people speak in different languages. So canmisunderstandings about work, safety risks, inefficiencies and theinability to communicate with supervisors.

"You need effective and immediate communication betweensupervisors and staff," says Rita Pando, senior attorneyadvisor in the EEOC's Title VII/Age Discrimination &Employment Act/Equal Pay Act Division. "For example, [whenworking] with dangerous equipment, people must be able tounderstand one another."

Nonetheless, the EEOC has taken the position that English-onlyrules are repugnant, especially when they're applied across theboard. Prohibiting employees from speaking the language they speakmost comfortably reduces the person's employment opportunities,according to EEOC guidelines on the subject, and may create an"atmosphere of inferiority, isolation andintimidation."

The EEOC distinguishes between policies that restrictconversations on or about the job to English only from thosethat prohibit speaking other languages at all times,including lunch time and breaks. The first kind of policy may beacceptable, but only if it's narrowly tailored, the companyshows a business necessity for the rule, and it's explainedclearly to employees, along with the consequences of violation.Banning foreign languages under any circumstances, however, isdifficult to justify, Pando contends.

In one EEOC action, Chinese employees at two American Red Crosslaboratories in Maryland were prohibited from mixing Chinesecomments into their conversations during office hours and intotelephone conversations to family members. The EEOC obtained asettlement providing for termination of the rule and sensitivitytraining for employees. In another case, a Latina employee chargedthat the English-only rule subjected her to unequal terms andconditions of employment. The EEOC extracted a settlement thatincluded not only termination of the rule but also $30,000 indamages for the employee.

Courts Fight Back

When this type of case makes it to court, however, employersoften win. In the leading case in this realm, Garcia v. SpunSteak Co., 24 of the company's 33 workers wereSpanish-speaking, and most of them were bilingual. The Latinoemployees liked to chat with each other in Spanish while working onan assembly line. Some of their co-workers, notably aChinese-American and an African-American, complained that theLatino workers were making derogatory, racist comments about themin Spanish. To promote racial harmony, the company presidentinstituted an English-only rule.

The EEOC investigated and declared the rule a violation of TitleVII (refers to the Civil Rights Act of 1964, which deals withemployment discrimination). A district court agreed, finding adisparate impact on the Latino workers. However, the Ninth CircuitCourt of Appeals dismissed the case, ruling that there was noapparent evidence of national-origin discrimination--without evengetting to the business reasons. The court said it disagreed withthe EEOC guideline that states that an English-only rule in itselfis presumed to have an adverse impact on minorities. Show us theadverse impact, the court ruled. Since the named plaintiffs wereall bilingual, they wouldn't be harmed by having to speakEnglish. "Title VII does not protect the ability of workers toexpress their cultural heritage at the workplace," the courtnoted.

In a similar case, Long v. First Union Bank, Latinotellers objected to a request from their supervisors not to speakSpanish at the bank except to assist Spanish-speaking customers,allegedly because they were creating a hostile environment byspeaking Spanish in the presence of other employees. The EEOCclaimed discrimination, but the U.S. District Court for the EasternDistrict of Virginia dismissed the case. The court cited the SpunSteak case and expressly disagreed with EEOC guidelines.

The strong chance of winning in court, though, is little comfortto employers who don't need the EEOC breathing down theirnecks. To meet your management goals and stay out of trouble, becareful with English-only policies, advises Teresa Brady, abusiness 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 strongbusiness reason for being in effect.

In addition, Brady advises entrepreneurs to distribute a policyprohibiting harassment and discrimination on the basis of nationalorigin. "It should have specific examples and a statement ofwhat happens if employees violate the policy," she says."Companies should also have an active diversity trainingprogram." If you help employees understand the ethnic groupsthey work with and the reasons for your policy, they're lesslikely to object to it.

Contact Sources

Equal Employment Opportunity Commission, http://www.eeoc.gov

The Law Offices of Teresa Brady, 1928 Bristol Pike,Bensalem, PA 19020, (215) 244-4617