|
HR MATTERS
E-TIPS
This Week's Tip: Requiring English in the Workplace
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
This Week's Tip: Requiring English in the Workplace
Many employers impose English-only rules as a way to facilitate
operations and enhance assimilation of employees whose primary
language is not English. However, these rules are controversial and can
be discriminatory unless first tied to legitimate business needs and then
applied properly.
| |
|
| ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |
This Week's Tip:
Requiring English in the Workplace
Today's growing immigrant population challenges employers nationwide
to develop language and communications policies that effectively serve
everyone's needs. Some employers answer this new challenge by
requiring all workers to speak English. They maintain that a common
workplace language will facilitate good communications and promote
safety and efficiency.
However, if applied too broadly, these rules may violate Title VII of
the
Civil Rights Act (Title VII). Further, some employee advocates maintain
such rules single out non-English speaking workers for different
treatment and force them to suppress their ethnic backgrounds. The
discussion below outlines the legal issues surrounding English-only
rules, suggests some possible alternatives, and offers guidelines for
developing effective and enforceable policies.
The Legal Issues
As a general rule, you may require employees to have a certain level of
English proficiency and to speak in a manner that can be understood.
The Equal Employment Opportunity Commission (EEOC) and courts
have tended to uphold English-only rules if they have a business-related
purpose and do not apply to employee break periods.
Examples of business-related reasons include safety concerns (such as
employees working on a production line or with hazardous chemicals)
and customer and vendor communications. However, these rules,
unless implemented properly, can lead to national origin discrimination
prohibited under Title VII.
The EEOC takes the position that English-only rules may hinder
employment opportunities since they can prevent some employees from
speaking their primary language, or the language they speak most
comfortably. Therefore, when investigating national origin
discrimination
claims, the EEOC closely looks at English-only rules and will presume
they violate Title VII.
Even so, the EEOC's regulations do permit English-only rules if limited
in
scope and application. Thus, you may require employees to speak
English at certain times if a business need is demonstrated. However,
the regulations also require you to tell employees when speaking English
is required and what the consequences of rule violations will be.
The EEOC is serious about enforcement, too. Recently, a nationwide
chain of hair salons agreed to pay $240,000 in damages to six Hispanic
hair stylists. The agreement settled the EEOC's claim that the employer
discriminated against the employees by requiring them to speak only
English at all times. (See EEOC v. Regis Corporation, No. 99 C 8270
(N.D. Ill.); EEOC Office of General Counsel Annual Report Fiscal Year
2002.) The salon company also agreed to rescind its policy unless it
could establish a business necessity for it. Damage settlements in other
cases brought by the EEOC have ranged from $55,000 to $2.4 million.
-----------------------------------------------------------------------------
Get your
FREE access to this and
100's
of HR resources today.
Get a
Free Trial of the Personnel Policy Manual Service
now.
-----------------------------------------------------------------------------
And, several courts have agreed with the EEOC's position. For example,
in EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D.
Tex. 2000), the court determined that a policy that required employees
always to speak English, except when helping non-English speaking
customers, violated Title VII. Similarly, in EEOC v. Synchro-Start
Prods.,
Inc., 29 F. Supp. 2d 911 (N.D. Ill. 1999), the court upheld the EEOC's
claim that a rule, requiring English spoken at all times during working
hours, had a disparate impact on employees with national origins from
non-English speaking countries. |
|
|
|
|
However, not all courts have accepted the EEOC's business justification
requirement or its presumption that English-only rules discriminate. For
example, the Ninth Circuit Court of Appeals rejected the EEOC's position
in Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), cert. denied,
512 U.S. 1228 (1994). Instead, the court decided that English-only rules
should be evaluated on how they actually affect employees.
Accordingly, it said the employer does not need a business necessity
justification unless the rule adversely impacts employees. And, since the
employees in question were able to speak both English and Spanish, the
court concluded that requiring them to speak only English in connection
with work had no adverse impact. The court did note, however, that the
same rule might adversely affect other employees if they did not speak
English, or did not speak it well.
Several lower courts also have reached the same conclusion as Garcia
and have declined to adopt the EEOC's presumption of discrimination.
Thus, in Cosme v. Salvation Army, 284 F. Supp. 2d 229 (D. Mass. 2003),
a Spanish-speaking employee with limited English proficiency lost her
discrimination claim. The court said it was not bound by the EEOC's
disapproval of English-only policies and that the mere existence of the
policy did not, in and of itself, constitute discrimination or disparate
treatment for bilingual employees. And, in Kania v. Archdiocese of
Philadelphia, 14 F. Supp. 2d 730 (E.D. Pa. 1998), the court determined
that an English-only rule established for the legitimate business reason
of "improving interpersonal relations" did not violate Title VII.
A few states also limit the use of English-only rules. For example, under
California law, employers with five or more employees must have a
"business necessity," as defined by statute, to justify imposing employee
language restrictions. In addition, California employers must notify
employees about when the restrictions apply and the consequences of
violations. And in Illinois, effective January 1, 2004, employers may not
prohibit workers from talking in any languages they choose as long as
their communications are unrelated to employment duties.
"English-Only" Not the Only Answer
Because broad English-only rules can trigger legal challenges and
employee concerns, you should at least be open to considering less
controversial alternatives. In doing so, focus on the actual language
needs of your employees. For example, you might discover that English-
only rules are unworkable because some employees are unable to speak
English well, or at all. In that situation, you might consider sponsoring
English classes on-site or through local educational centers, and then
offer participation incentives.
You could also make a special effort to hire managers and supervisors
who have needed language skills, or encourage existing staff to learn
foreign languages. No matter what solution you choose, you should
reinforce it with a strong equal employment opportunity statement that
includes a clear prohibition against national origin discrimination.
Take A Balanced Approach
English-only rules have become controversial and politically charged,
and their legal status is continually evolving. If you decide to impose
these rules, remember that the EEOC presumes they discriminate and
that some jurisdictions require a business justification. Therefore, you
should adopt rules that will survive close scrutiny. They must strike the
right balance between legitimate concerns about workplace safety,
efficiency, and harmony, and the natural desire of some employees to
communicate in their native language. To achieve this outcome,
consider taking these four steps:
1. Develop rules that support legitimate business-related needs.
2. Do not implement a complete ban on non-English
communications and allow employees to use other languages
during breaks.
3. Have your legal counsel review your rules before you implement
them.
4. Explain the logic and need for your rules to all employees.
By following these steps, you will align your practical business needs
with the sensitivities of an increasingly diverse workforce and, at the
same time, be able to deflect most legal challenges.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on English-only rules in Customer
Relations, Chapter 804, notes 7 and 11.
If you do not subscribe to the Personnel Policy Manual or CD service,
and you'd like to use it free for 30 days to see if you like it, go to:
http://www.ppspublishers.com/service2.htm
Or just give us a call toll-free at 1-800-437-3735. |
|
|
|
|
|
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |
F r e e HR Policy Download Center
Resource Center offers f-r-e-e downloads to help you
save time.
http://www.ppspublishers.com/ez/resources/
Your Editors at HR Matters E-Tips have set up a special resource center
where you can download HR policies and other helpful materials on such
topics as:
NEW - Sexual/Workplace Harassment
http://www.ppspublishers.com/ez/ezdcsexualharassment.htm
- Holidays
- Layoff and Recall
- Behavior of Employees
- Family and Medical
Leave of Absence
-
Employee Classifications
-
Sexual/Workplace Harassment Policy
-
COBRA Quick Guide
-
E-mail and Internet Use
-
Minimum Wage and Overtime
Check for these and other tools to help in your job.
To download one or more of the above, go to:
http://www.ppspublishers.com/ez/resources/ |
F r e e HR Policies and more..
Click here. |
|
|
|
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ |
YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
Interested in using an article from HR Matters E-Tips on your Web site or
in a newsletter?
Please contact Robin Thomas, Managing Editor of Personnel Policy
Service, Inc., to request permission. You can contact her by email at
editor@ppspublishers.com or by
telephone at 1-800-437-3735.
Please note that the information in every issue of HR Matters E-Tips is
the original, copyrighted work of Personnel Policy Service, Inc., and is
protected under U.S. copyright laws. As such, you may not reprint or
publish in any format any article or portion of article from HR Matters E-
Tips without the express permission of Personnel Policy Service, Inc.
Remember, too, we encourage you to pass along any issue of the E-Tips
by forwarding it to friends and colleagues.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
HR Matters E-Tips is a f-r-e-e service of Personnel Policy Service, Inc.
To subscribe, go to:
http://www.ppspublishers.com/ezsignup.htm
Personnel Policy Service, Inc. All Rights Reserved.
HR Matters is a registered trademark of:
Personnel Policy Service, Inc.
159 St. Matthews Ave., Suite 5, Louisville, KY 40207
Tel: 1-800-437-3735 - Fax: 1-800-755-7011
CONTACT US: ezine@ppspublishers.com
FORWARD THIS ISSUE: We invite you to forward HR Matters E-Tips to
a colleague or friend. |
Personnel
Policy Service, Inc.
Human Resources
Policies, Company Manuals, Newsletters, HR Policies, Training, & Articles
