Question:

My company’s employees often speak to each other in foreign languages. This makes many of my customers and employees uncomfortable. Can I require my employees to only speak English at work?

Answer:

Probably not. “English-Only” policies are legal only in very specific circumstances. Because the language we speak is closely connected to our nationality, “English-Only” rules may discriminate on the basis of national origin, a protected category under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (“FEHA”). The Equal Employment Opportunity Commission (“EEOC”) enforces the federal prohibition against national origin discrimination in employment under Title VII. National origin discrimination involves treating employees (or applicants) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background.

The EEOC presumes that a rule requiring employees to speak only English at all times in the workplace is discriminatory. But an “English-Only” rule that is only applied at certain times is permitted under federal law if the employer has given the employees advance notice of the rule and can show the rule is justified by the stringent standard of “business necessity.” According to EEOC guidelines, “business necessity” justifies implementing an “English-Only” rule under the following circumstances:

  • to enable supervisors who speak only English to properly monitor job performance;
  • to promote safety in emergency situations;
  • to promote efficiency when multi-lingual speakers collaborate on work projects with English-only speakers; and
  • to promote customer relations when speaking with English-speaking customers.

California law imposes greater restrictions on “English-Only” policies. The FEHA makes it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace unless the policy is required because of “business necessity” and the employer gives notice of the policy to employees. Under California law, “business necessity” exists only if the policy serves an “overriding legitimate business purpose” and is needed for the safe and efficient operation of the business, and there is no less restrictive available alternative. Thus, to establish a lawful “English-Only” policy in California, an employer must prove the policy is necessary for both safety and efficiency. This focus on safety makes it nearly impossible for employers to implement “English-Only” policies based on concerns of employee morale or customer preference. Therefore, although a rule requiring employees to speak English to English speaking customers is permissible, a rule generally prohibiting employees from speaking any other language during work hours is not.

Courts will carefully examine whether an “English-Only” rule is discriminatory and illegal. You should implement such a rule only if all of the following requirements are met:

  • The rule should be narrowly tailored to your legitimate business purposes, i.e., “business necessity.” In your situation, an “English-Only” rule should only apply to specific times and business situations, such as when an employee must interact with a customer who only speaks English. You can require employees to speak only English with English speaking customers, but you may not prohibit employees from speaking foreign languages during all work hours.
  • As with any workplace policy, the rule should be nondiscriminatory and should apply to all employees equally and not only to one ethnic group.
  • The specific policy and the potential consequences for violating the policy should be communicated clearly to the employees.
  • An “English-Only” rule should not be applied to employees who do not speak English, or to employees whose jobs do not require that they speak English. Also remember that it is illegal to terminate or retaliate against an employee for complaining about “English-Only” requirements in the workplace.

Employees sometimes complain that their co-workers speak a language they do not understand, and this makes them feel uncomfortable. Although you can explain to your employees that their co-workers may feel uncomfortable if they cannot understand a conversation that is occurring in their resence, you cannot prohibit them from speaking another language at work solely because it makes their co-workers feel uncomfortable unless you can show that the safe and efficient operation of the business is affected.
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