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 firstname.lastname@example.org.