As domestic companies hire waves of workers who don’t speak English or only as a second language, workplace conflicts and consequent complaints about discrimination have dramatically increased.
Some businesses are mandating that workers communicate in English as a common language in an attempt to make the workplace safer, more productive or more harmonious. But the result has been a five-fold increase in “English-only” complaints filed with the EEOC since 1996.
“English-only” complaints still account for a small percentage of total national origin discrimination claims, but David Dubberly of South Carolina-based Nexsen Pruett stresses that “there is definitely an upward trend as the Hispanic population is growing and becoming more aware of their rights under the law.”
A complicating factor is that the law on English-only rules is “still in flux,” according to Kalyn D. Redlowsk of Miller Canfield in Michigan. Decisions by lower courts and the EEOC are mixed, she says.
The 10th Circuit recently ruled that an Oklahoma municipality’s English-only work policy may violate Title VII and other bias laws. The court reversed summary judgment in favor of the city. (Maldanado v. City of Altus. Docket No. 04-6062.)
The 9th Circuit in Garcia v. Spun Steak Co. (998 F.2d 1480, 1993) ruled that a company’s bilingual employees were not adversely impacted where they could comply with an English-only rule.
Evan Pontz of the Atlanta office of Troutman Sanders cautions that “employers are likely to make more mistakes in this area in the short term. [But] good employers will learn to deal with this, especially as foreign language skills increasingly become a benefit in a global world.”
In the meantime, employers who believe a business necessity exists for requiring a common language in the workplace can minimize liability risks.
“You must tailor your rules to achieve your business goals and make sure the use of the rules by managers is not pretextual,” suggests James W. Bucking of the Boston office of Foley Hoag. “How you enforce these rules is often the key in defending them.”
Experts stress the importance of good training for managers in implementing an English-only policy.
“Training management to assess the professional and appropriate behavior of their supervisors is always critical,” says Danielle Y. Vanderzanden of Day, Berry & Howard in Boston.
And employers need to assess if English is always the best language to use, according to Vanderzanden.
For example, “it might not be the most effective tool for training workers who speak English as a second language, especially where dangerous machines or hazardous tasks are involved,” she notes.
Employers who implement “English-only” rules are venturing into uncertain legal waters.
“It is impossible to provide absolute guidelines which would categorically insulate employers against liability for implementing such rules,” Redlowsk says, because of the divergent opinions among lower courts and the EEOC.
Such confusion about the law can lead to reluctant decisions to settle when cases go badly at the EEOC. In November, for example, a Sheraton Hotel in Virginia paid $80,000 to resolve a dispute where the agency sided with a dishwasher fired for violating English-only rules.
Dubberly – who grew up in South America and has translated many workplace handbooks into Spanish – says the EEOC is not constrained by any clear direction from the courts. The EEOC takes a far dimmer view of English-only rules than some courts, says Dubberly, noting the agency pronouncement that such rules are presumed to violate Title VII unless an employer can prove a “business necessity” for them.
Furthermore, according to Vanderzanden, agency regulations flatly prohibit any rule that requires “English-only all the time.”
Nonetheless, English-only rules “are almost invariably upheld by the courts as long as there is a legitimate business reason for them,” says Bucking, noting that courts have recognized a range of interests that can support English-only rules.
Productivity or safety concerns are often matters of business necessity, he says, but some courts have also recognized the importance of a company’s image on its sales floor, as well as the need for supervisors to monitor and understand the interactions of subordinates with customers or other workers.
Some decisions even have recognized the need for workplace harmony through minimizing language cliques, Bucking notes.
However, Dubberly says most courts would likely rule against an English-only rule based just on “harmony” concerns.
Productivity concerns are less compelling than safety concerns, says Dubberly, pointing out that courts have consistently upheld the need for common language or the ability to read English labels in dangerous environments, such as refineries and meat packing plants that require instant communication and teamwork to avoid accidents.
Pontz cautions that “business necessity for English-only rules must be more than a mere preference,” noting that employers have had to demonstrate the dangers of translation delays at air traffic control towers or industrial plant facilities.
Beyond demonstrating a “business necessity,” employers must also clearly notify employees about changes in policy and describe what is permitted and when, Vanderzanden says.
She suggests employers should either require employees to sign and acknowledge receipt of published policies, or at least post them conspicuously in multiple locations.
Experts offer several tips for dodging lawsuits, including workable alternatives to English-only rules.
Vanderzanden points out that non-verbal signals to shut down machines or evacuate facilities – such as flashing lights and sirens – may be more effective than English commands.
She also emphasizes the importance of training managers about balanced enforcement, noting that plaintiffs’ lawyers look for disparate treatment cases where managers use policies for harassment.
Bucking agrees, cautioning against harsh enforcement for small violations. He also points to the value of training programs designed to prevent manager harassment.
Clear “trouble” spots are policies regulating language on break time or in personal conversations, Bucking notes.
Pontz agrees: “When a manager needs to be in total control of the workplace – that is when you have problems.”
Manager misuse of a policy is often the catalyst for a claim.
“There is usually more to these cases than complaints about ‘English-only’ policies,” Pontz says, noting that Spanish speakers have frequently complained that a policy was used to mistreat them or deny them promotions or pay increases.
Pontz also warns that putting a policy in place following acrimonious incidents with specific groups can be problematic. “Often, the use of English-only rules,” Pontz says, “is just reactive to a concern and better solutions may exist.”