Question:

Several of my co-workers speak to each other in foreign languages during working hours. I only speak English and while I admire my co-workers’ ability to speak other languages, I feel uncomfortable because I do not know what they are saying. Can my employer require all employees to only speak English at work?

Answer:

Employers in California can implement “English only” policies in very limited situations. California law provides that it is an unlawful employment practice for an employer to adopt or enforce a policy that limits or prohibits the use of any language in the workplace unless two conditions exist: (1) the language restriction is justified by business necessity; and (2) the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed, and of the consequences of violating the language restriction.

Under California law, “business necessity” means an “overriding legitimate purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.” Where a business necessity justifies the “English only” policy, the employer can only apply that policy to those situations justified by the business necessity rather than have a blanket “English only” policy. The rationale behind this law is that some employers have used “English only” policies to mask intentional discrimination based on national origin.

Under federal law, it is presumed that a rule that requires that employees only speak English in the workplace is discriminatory and violates Title VII of the Civil Rights Act of 1964, and any such workplace policy is therefore closely scrutinized. As is the case in California, such a rule is allowed only if it is justified by business necessity, and if the employer has given the employees notice of the rule.

An example of a business necessity justifying an “English only” rule would include work that involves a high risk of injury or accidents, such that everyone must communicate in the same language. For example, employees working on a construction site could be at risk if one employee shouts out a warning to others in a foreign language that is not understood by all of the co-workers. Members of a surgical team at a hospital, likewise, could put a patient’s health at risk if they are not all communicating in the same language and understanding each other during a surgical procedure. But again, the employer must notify its employees of the circumstances and the time when the language restriction is required to be observed.

Examples of rationales for an “English only” policy that federal courts have held do not qualify as business necessity include: that the United States and California are both English-speaking; that communication in foreign languages, except where required with customers, is disruptive to the workplace; that communication in English only promotes racial harmony; that employees speaking other languages are trying to conceal what they are saying; and that the California Constitution requires that only English be spoken in the workplace. All of these bases for a claimed business necessity justifying an “English only” rule have been squarely rejected by the courts.

Any employer that is considering implementing an “English only” policy must carefully consider if such a restriction is justified by a business necessity, and whether there would be another way of meeting that business necessity. The employer must also narrowly apply the restriction to only those situations justified by the business necessity, and notify its employees as to when the policy applies and the consequences of violating it.
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