English-only workplace rules: both discriminatory and disengaging?
Employers are increasingly finding themselves in the news or in court defending English-only policies. Do these rules ever have a place at work?
English-only rules in the workplace have garnered a bit of attention of late, both in the media and in the courtroom.
Most recently, a Baltimore Dunkin’ Donuts responded to social media pressure, removing a sign asking customers to report employees “shouting in a language other than English” to management. In exchange, the customers were promised a coupon for free coffee and a pastry.
And while employers may have several reasons for wanting employees to be able to speak English, there are instances in which English-only policies may be discriminatory, experts say.
When is English-only acceptable?
The U.S. Equal Employment Opportunity Commission's Enforcement Guidance on National Origin Discrimination gives employers insight into when, and if, English-only rules can be adopted. While a blanket policy to use only English will often be considered discriminatory, it can be used in certain circumstances. Specific conditions have to be met, however, to make the rule legitimate, the agency said.
Such a rule is permissible when an employer provides advance notice of the rule and can show that it is justified by business necessity. At the federal level, "business necessity" can include communicating with customers, coworkers or supervisors who only speak English, Michael Studenka, partner at Newmeyer & Dillion LLP, told HR Dive via email. Likewise, it can apply in emergencies or situations where a common language will promote safety; for cooperative assignments to promote efficiency; and to enable supervisors who only speak English to monitor performance of employees whose jobs require communicating with coworkers or customers.
But even then, employers who adopt these policies should be sensitive to the needs of staff members, Studenka said. "This is all part of respecting diversity in the workplace," he explained; "It should be raised in any diversity training, especially with managers so that they avoid unknowingly overstepping here, for example, telling an employee on break in the kitchen that he must speak English."
Any English-only rule should be narrowly drawn and closely tethered to interests of safety and efficiency, he said. It should apply only to specific times and situations and must be clearly communicated and apply to all employees. For situations and jobs that don’t require it, there should be no such rule, nor retaliation against employees who communicate with coworkers in another language.
Randi Kochman, chair of the Employment Law Department at Cole Schotz, offered similar advice: "An employer considering adopting an English-only policy should consider the business need for the policy and draft a policy that is narrowly tailored to meet those needs," she said. "The policy should not apply to off-duty conduct and the company should ensure that it is enforced fairly and consistently."
California goes further
California has no blanket policy against English-only rules, but defines more narrowly when they can be applied. Under the California Fair Employment and Housing Act, businesses with five or more employees must limit the use of language restriction policies unless they can show an "overriding and legitimate business purpose that makes language restriction necessary for the safe and efficient operation of the business." The restriction also must "effectively fulfill the business purpose it is supposed to serve" and there can be no alternative practice that would accomplish the same business purpose with a lesser discriminatory impact. Employers must notify staff when the policy must be followed, as well as consequences for failure to comply.
"As with any policy, employers should make sure that an English only policy is truly necessary to the productive functioning of the business before such a policy is implemented,” Genie Harrison, founder of the Genie Harrison Law Firm in Los Angeles wrote to HR Dive. If adopted, it's important to train employees on the policy and the business necessity behind it. "If employees understand the reasoning behind the rule, they are less likely to think the rule is unfair," she said.
It's also important to enforce the policy consistently: "If an employee reports that she thinks the policy is being selectively enforced, listen, take the report seriously," Harrison suggested Additionally, "investigate the report, and remedy the selective enforcement if it exists." Essentially: "train, explain, and be consistent in application."
When employees converse in break areas and lunchrooms, English-only rules generally should not apply. And beyond allowing staffers to speak in a language in which they’re comfortable with coworkers, there are instances when other languages can be a serious asset, experts have noted, like when employees are serving customers who prefer another language.
Additionally, employers are finding that when employees can bring their true selves to work, engagement increases. And when employees are engaged and thriving on a diverse team, employers see innovation skyrocket.
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