English-only policies

The growing number of people in the
United States who speak a language
other than English as their first language has caused many business owners
to consider establishing “English-only”
policies in their workplaces. Such policies
are justified as long as they are implemented for nondiscriminatory reasons and to
satisfy a business necessity.

But such policies are often inadvisable.
Employers must make sure that the business reasons for English-only policies justify the burdens placed on individuals because of their language skills or national
origin. And employers should take care to
design their policies with specific business
needs and court guidance in mind.

Smart Business spoke with Jo Vorpahl of
Porter Hedges LLP to learn how employers
can design and implement legally acceptable English-only policies, when such policies are advisable, who can assist them in
the process, and how they, their employees, and their customers can benefit from
them.

Can an employer implement a policy that
requires employees to speak English on the
job?

Generally speaking, English-only rules
that apply at all times in a workplace are
considered suspect under the law and raise
national origin discrimination concerns.
Court cases arising under federal anti-discrimination law have provided guidance in
determining when such language restrictions are appropriate. Employers should
not implement an English-only policy until
they have thought it through carefully. But
as long as a policy is carefully drafted and
consistently applied, its existence and the
circumstances when English is required
are made known to all employees, and the
policy addresses an articulable business need, it should withstand challenge.

How can attorneys help employers decide if
English-only policies are advisable?

The best advice attorneys can give
employers regarding English-only policies
may be to avoid them unless they are
absolutely necessary to the business. If
employers do want to develop such policies, attorneys can help in several ways.

One such way is to educate employers
about workplace situations that justify
English-only policies and EEOC guidelines
that influence language-related terms and
conditions of employment.

Another is to draft policies that address
business necessity but do not disparately
affect employees on the basis of race or
national origin.

A third is to insure that an employer’s policy remains in step with any changes in the
law.

And, of course, attorneys can defend
employers should legal challenges to their
policies arise.

What are some of the circumstances in which
English-only policies are permissible?

Some of the typical circumstances
include communicating with customers,
coworkers and supervisors who speak
only English; addressing emergencies or
other situations in which workers must
speak a common language to promote
safety; engaging in cooperative work
assignments in which an English-only
rule is needed to promote efficiency; and
enabling a supervisor who speaks only
English to monitor the performance of
employees whose job duties require
communication with coworkers or customers.

Again, the key is business necessity. If
your business needs require that
employees speak English, the policy is
probably justified under those circumstances; if they do not, an English-only
policy is likely neither warranted nor
advisable.

How can I decide whether to adopt an
English-only policy?

An employment attorney can discuss
with you the circumstances that cause
you to believe such a policy might be
warranted and assist you in preparing
and implementing a policy that is tailored to your specific business needs.

JO VORPAHL is a partner with Porter & Hedges LLP. Reach her
at (713) 226-6601 or [email protected].