In spite of – or perhaps in reaction to – our country’s rich history of diversity, “English only” policies have been implemented in countless businesses around the country. These policies, while mostly enacted without malicious intent, often have the effect of disenfranchising workers who aren’t native English speakers, making them the brunt of undue scrutiny, disproportionate discipline and ribald teasing from colleagues.

English only policies have been challenged in numerous state and federal courts across the country, with critics arguing that they are one form of national origin discrimination that the Constitution expressly forbids. Some of the challenges have heralded a victory for the workers, while some have been found to have a legitimate business purpose that justifies a policy that might otherwise be seen as discriminatory.

In an effort to find some middle ground that would allow business owners who actually need employees to speak English while not deliberately discriminating against workers that are fluent in another language, the federal government – through the Equal Employment Opportunity Commission – has set forth some guidelines that could help businesses draft policies that are impartial yet still effective.

The federal government’s perspective

As a general rule, English only policies can be justified if they satisfy a “legitimate business necessity.” While the EEOC hasn’t made a specific rule regarding the policies, they do suggest that policies meeting particular criteria are more likely to be enforceable. This includes policies that are:

• In place for situations in which employees must communicate with each other or customers for purposes involving the business’ safe and/or successful operation.
• Not overly restrictive (i.e., not allowing employees to speak another language even when they are on breaks and away from customers).
• Adequately and properly conveyed to employees before any punishment can be doled out for violations.

California law

Employer rules requiring employees to speak English at all times on the job may constitute discrimination based on national origin because “non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak.” Such a rule may be upheld, however, where (i) justified by “business necessity” and (ii) the employees have adequate notice of the restriction.

“Business necessity” for an “English only” rule may exist where it is necessary for the safe and efficient operation of the business and no alternative practice will accomplish the business purpose equally as well with less discriminatory impact.

Regardless of the impact an “English only” policy might have on employees of different national origins, if there is indeed a legitimate business reason why it was enacted, and if the business proceeds in a non-discriminatory and impartial manner, the policy has a fair chance of being upheld should an administrative or civil complaint be filed.

If you are a business owner considering an “English only” policy – or if you are a worker who has been disparately affected by an unfair one – consider consulting an experienced employment law attorney in your area to learn more about the legal aspects that come “part and parcel” with this kind of sweeping workplace procedure.