Legal Update - July 2006
Language Discrimination in the Workplace

Despite 200 years without an official language, the Senate recently approved a bill designating English as our country’s national language. If the bill survives the legislative process, declaring English as the official language of the United States will undoubtedly impact our great polyglot population and may have far-reaching implications for our laws governing discrimination in the workplace.

In 1990, 32 million people in the U.S., or about six percent of the population five and older, spoke a language other than English at home. By 2000, that figure increased to 47 million people, or about 20 percent of the population five and older. As this trend has continued, and as the workforce has absorbed increasing numbers of individuals who cannot speak English or for whom English is a second language, the Equal Employment Opportunity Commission (the “EEOC”) has addressed a rising number of complaints alleging national origin discrimination. Just last year, the EEOC received 8,035 charges of national origin discrimination. Resolving those charges (and a few from 2004) required payouts of more than $19.4 million in the aggregate.

Regardless of whether the federal law declares English the United States’ official language, anti-discrimination laws prevent employers, absent a recognized business necessity, from basing employment decisions on English proficiency. This Legal Update focuses on a growing concern for employers: employment-related English language proficiency requirements and English-only rules.

Title VII of the Civil Rights Act (“Title VII”) prohibits employers from discriminating against individuals based on their race, color, religion, sex, and national origin. National origin discrimination involves treating an individual less favorably because he or she (or one of his or her ancestors) belongs to a particular national origin group. This includes discriminating against an individual because of his or her language skills or accent. While employers may believe they have legitimate business reasons for basing an employment decision on fluency or accent-related characteristics, since such decisions are undeniably tied to national origin, employers must ensure that they are not violating Title VII.

English fluency or accent-related requirements, as with all necessary job skills and abilities, must be related to the performance of the job in order to constitute business necessity. This means that, although language proficiency may be desirable, it will not be considered a legitimate business necessity unless it is an important part of performing the job. Accordingly, co-worker, customer, or client discomfort and preferences are not considered legitimate business reasons for discriminatory action.

Courts have generally upheld fluency requirements when a legitimate business necessity exists. For example, in Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, 660 F.2d 1217 (7th Cir. 1981), the U.S. Court of Appeals for the Seventh Circuit held that “some facility in English” was a bona fide occupational qualification for most jobs in the hospital. In Garcia, rejected Latinos applicants for positions at a hospital alleged that the hospital engaged in unlawful discrimination by requiring employees in nearly all of the job classifications to speak and read English at some level. The court in rejecting their argument, noted that the requirement did not adversely impact Latinos specifically, nor were they treated differently than all other persons.

As this case illustrates, requiring employees to have at least “some facility” in English may constitute a legitimate business need. The key is to impose fluency requirements commensurate with the actual functions of the position. Accordingly, as long as the level of proficiency required does not exceed the actual business necessity, the employer will not be engaging in unlawful discrimination.

As with the language proficiency and accent related requirements, employers must proceed cautiously when implementing English-only rules in the workplace. An English-only rule may unduly burden and disadvantage employees for whom English is not the primary language. Such a rule may also result in a discriminatory working environment. Accordingly, a rule that completely precludes employees from speaking any language other than English at all times is presumed to violate Title VII.

Employers may implement English-only rules at certain times for the limited purpose of satisfying legitimate business needs, such as promoting efficiency and safety in the workplace. Employers may therefore require employees to communicate only in English with co-workers, supervisors, and customers who only speak English. But unless implemented properly, such rules can lead to claims for unlawful national origin discrimination.

For example, in one case, a provider of telephone operators implemented an overly-broad English-only policy that banned all other languages at the workplace. Not only were the employees required to speak English while performing their duties, but also they were required to speak English during their lunch and other breaks. The employer fired 13 employees for protesting the policy and after a full trial, the employer entered into a post-judgment settlement for $700,000. EEOC v. Premier Operator Services, 113 F. Supp. 2d 1066 (N.D. Tex. 2000).

In another case, the EEOC obtained a $1.5 million settlement from a casino in Colorado that implemented an English-only policy that unduly burdened and discriminated against the non-English speaking employees. The casino’s policy required all employees in its housekeeping department, even those who did not speak any English, to speak English at all times. EEOC v. Anchor Coin d/b/a Colorado Central Station Casino, Inc., No. 01-B-0564 (D. Colo. July 21, 2003).

As these cases illustrate, employers must take care when implementing English-only rules. The English-only policy must strike the desired balance between the employer’s legitimate business concerns of workplace safety, efficiency and job performance, and the employees’ preference to communicate in their native languages.

To avoid claims of language-based national origin discrimination, employers may want to institute the following measures:

1. Perform a comprehensive job analysis to determine the essential functions of the position. This should enable the employer to demonstrate whether and how the fluency or accent-related requirements are necessary to a particular job and to avoid engaging in discriminatory practices in the workplace.
2. Balance the business justifications against unintended, but possible, discriminatory consequences, and refrain from imposing fluency or accent requirements across the board. An individual may not be fluent in English for one position, but proficient enough for another position at the same company. For example, a foreign national, with very limited spoken English, who applies for a sales-position might not be qualified for the position because of his or her inability to effectively assist customers. The employer, however, might offer to consider the candidate for a different position that does not require spoken English. Such a gesture may help the employer avoid a claim of unlawful discrimination or prevail if one is brought.
3. Avoid showing a bias against an accent associated with some national origins, but not against others, since such preferences may also violate the law. For example, if two candidates possess the same level of English proficiency, but the employer favors the candidate with a British accent over the candidate with a Russian accent, the employer may be charged with unlawful national origin discrimination. Of course, an employer who shows a bias against accents associated with all national origins may also be charged with unlawful discrimination.
4. Before adopting an English-only policy, consider whether any alternatives to the English-only rules would be equally effective in promoting safety or efficiency in the workplace.
5. Provide all employees with adequate notice of the English-only policy and the consequences for violating it before implementing the policy.
6. Focus the English-only policy on actual business needs. Do not attempt to prohibit employees from speaking other languages during breaks and other off-duty times.
7. Implement a comprehensive written equal employment opportunity and anti-harassment policy that prohibits discrimination and harassment with regard to protected groups of employees, including discrimination and harassment based on national origin.
8. Educate and train all managers to prevent discriminatory practices in the workplace. Additionally, clearly communicate a complaint procedure which gives all employees more than one person to complain to if they feel they have been the victim of national origin discrimination or harassment.

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