Number 22: Are English-Only Rules Discriminatory? The Rise Of Non-English Speakers In The Workplace
As of 2012, there were 38.3 million Americans who spoke Spanish as their primary language in the home. Many of those people are children or students and many also speak English fluently. But many also do not and when they go to work, they have two choices – to speak broken English or not to speak at all.
To be sure, employees need to communicate with one another. But does that necessitate the speaking of English only in the workplace? Does it matter what the employee does for a living or the kind of workplace?
Those were the questions the EEOC and the courts were faced with when they issued regulatory and judicial guidance on English-only policies in the workplace. Although the law does not prohibit English-only policies in the workplace, there is a presumption that such policies are discriminatory unless the employer can establish that: (1) the policy is supported by a business necessity; and (2) employees are notified in advance when they must speak English. What creates a “business necessity”? Courts have found it to exist when an employee must communicate with the public, when an employee works in a position that for reasons of safety or if necessary to communicate with co-workers in a situation that requires it. The EEOC takes the position that English-only rules are only justified in four situations: (1) when needed for the employer to “operate safely or efficiently”; (2) communications with customers or coworkers who only speak English; (3) emergencies or other situations in which workers must speak a common language to promote safety; or (4) cooperative work assignments in which the English-only rule is needed to promote efficiency.
It is inevitable that non-English speakers will only increase and that, as American workplaces get more sophisticated, there will be an increased need for effective and efficient communication. Whether those two trends conflict – and the ability of the EEOC and the courts to resolve such a conflict – remain to be seen.