Hunton Employment & Labor Perspectives

The EEOC recently settled a national origin discrimination case involving a “restrictive language policy” or “English-only rule.”  EEOC v. Mesa Systems, Inc., 2:11-cv-01201 (D. Utah 2013).  The employer agreed to pay $450,000.00 and to provide a variety of injunctive relief, including training, policy revisions, apologies, notice postings, and reporting to the EEOC.  The EEOC’s Strategic Enforcement Plan made it a priority to protect the most “vulnerable workers,” and Commissioner Jacqueline Berrien said the settlement is an important demonstration of a “renewed commitment” to that goal.  And, indeed: this settlement is the latest in a decade-long line of EEOC enforcement actions based on English-only rules.  See, e.g.: $2.44 million settlement with University of Incarnate Word (2001); $700,000 settlement with Premier Operator Services, Inc. (2000).

Applicable Law

The EEOC addresses English-only rules in its “Guidelines on Discrimination Because of National Origin.”  Regulation 29 C.F.R. §1606.7 provides:

Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of national origin.  Id. (a).

The EEOC presumes such policies violate Title VII because they create “an atmosphere of inferiority, isolation and intimidation. ” Id.

However, the EEOC recognizes that English communications may be a necessity at times.  Employers may be permitted to require English speaking at certain specified times, where justified by business necessity.   So, employers can still require employees to speak English when needed for successful operation of the business.   For instance, in a published Fact Sheet, the Department of Labor said an English-only requirement is defensible for:

• Communications with customers, coworkers and supervisors who speak only English
• Emergencies where a common language is needed for safety
• Cooperative projects where needed to promote efficiency
• When being monitored by a supervisor, if the work involves speaking English

Tips For Employers

If your company has a language requirement, consider whether any alternatives would be equally efficient in accomplishing the goal.   If a rule is needed, ensure the policy is compliant with EEOC regulations (our lawyers can help with that).  Be clear about when English is required, and when it is not.  Do not single out any particular language for prohibition.  Always specify that the company values a diverse workplace, and that it encourages employees to speak their native language wherever doing so will not impede company performance or threaten safety.  Specify that employees may always speak their native languages during casual conversations, while on break or lunchtime, or when not performing a job duty that requires English.

Notice is also essential.  Employees must be advised of any English-only rule.  If an employee can speak, but not read English, the policy should be translated, and a signed acknowledgment should be obtained.