By Mark F. Kluger and William H. Healey
Do you ever wonder whether the employees behind the counter who are speaking to each other in a language that you do not understand are talking about you? We just assume that with us, they are saying “not those two again” or “he’s put on a few pounds” or “he’s too old to wear that.” So can an employer require employees to speak only English at work? Our lawyerly answer is “yes, but….”
English-only rules are permissible so long as the employer can demonstrate a legitimate “business necessity” for the policy. Federal regulations on the subject provide that “a rule requiring employees to speak only English at all times in the workplace is a burdensome…condition of employment” and that the EEOC will presume such a blanket prohibition to be illegal discrimination.
Last week, clothing retailer Forever 21, or loosely translated, Siempre Veintiuno, was sued by the California Department of Fair Employment and Housing on behalf of 3 employees because its English only rule prohibited employees from speaking Spanish to each other at all times during the workday, including on break time and while speaking with customers who wanted to converse in Spanish. Interestingly, the retailer was founded by South Korean immigrants who themselves spoke no English when they arrived in the U.S. When asked about the lawsuit, the store’s spokesperson responded, “Sin comentarios.” Not really.
EEOC guidance defines “business necessity” broadly to include efficiency of operations and safety. More specifically, employers can require employees to speak English in the following circumstances:
- Communication with customers, coworkers or supervisors who only speak English
- In emergencies or other situations in which a common language will promote safety
- For cooperative work assignments in which there is not a common language
- To enable a supervisor who only speaks English to monitor performance of employees who must communicate with customers or co-workers
These guidelines provide employers with fairly wide latitude for developing an English-only policy. For example, employees in any customer-facing position can be required to speak English to and in front of those customers. Likewise, employees can be required to speak English around a supervisor who is charged with evaluating their performance even if they are just interacting with co-workers, so long as such interaction is a legitimate aspect of the employee’s performance.
It is clear that prohibiting employees from speaking their native language while on break or when not interacting about work is national origin discrimination. So the time for employees to trash the boss out loud in their native language is while on break. But it is also important to recognize that if two employees are packing boxes and conversing about sports, so long as all employees can engage in idle chatter while working, an employer cannot require those packers to converse in English.
Among the consequences of such a limitation on English-only policies is the inevitable friction that often occurs when an employee who does not understand the language that co-workers are speaking feels either alienated or, like us, assumes that they are speaking about him. Unfortunately, there is not much, if anything, that an employer can do in that situation (although Rosetta Stone for the holidays might be appreciated).
Reasonable application of English-only policies, no matter how well written, is still critical to keeping employers out of trouble. For example, it is important not to enforce an English-only rule against an employee who is interacting with a customer in a foreign language if the customer appears to welcome the interaction. One employer fired an assembly-line worker for violating an English-only rule when he greeted a co-worker with “Buenos dias.” That employer ended up paying $192,500 to 8 Hispanic employees in a settlement with the EEOC.
The federal regulation on “Speak English Only” rules also require English-only policies to clearly describe the circumstances when speaking English is required and the consequences for violations. Employers must also ensure that the policy is disseminated to employs, which ironically probably means (although the regulation does not say so) in English and the employees’ native languages to be certain that they understand it.
By the way, the employees behind the counter, they are definitely talking about you.