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Think twice before setting ‘English-only’ rule; courts view complaints as protected activity

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in Discrimination and Harassment,Human Resources

Don’t try to prevent employees from speaking languages other than Eng­lish at work, especially when they’re chatting among themselves. Unless you have a good business reason for banning other languages, courts will likely see the practice as discriminatory.

They’re also likely to consider it protected activity if employees complain about English-only rules.

Recent case: Yudexys Penalver is Hispanic and of Cuban origin. As a bilingual patient-support representative, her job involved helping hospital patients with Medicaid claims.

After a year on the job, Penalver was pulled into a meeting and told she could speak Spanish only when she was assisting patients who spoke no English. This was a new rule, not included in the employee handbook and not publicized to other workers.

Penalver sent an email requesting a copy of her personnel file and the minutes of the meeting. She was fired later that day. An internal email said the decision to fire Penalver was made after her employer received her request for her file and the minutes.

The court said the case could go forward, after concluding that Penalver was engaged in protected activity when she questioned the English-only policy and was fired immediately after doing so. (Penalver v. Resource Corporation, No. 3:10-CV-0280, ND TX, 2011)

Final note: The company claimed it fired Penalver for poor attendance and other problems, but the email was a smoking gun showing a direct connection between the complaint and discharge.

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