When and how you can use ‘English-Only’ rules in the workplace

by Amy G. McAndrew, Pepper Hamilton LLP

Philadelphia landmark Geno’s Steaks made headlines when it posted a sign that reads, “This is America. When ordering, please speak English.” The sign received national media attention and caught the eye of the Philadelphia Commission on Human Relations, which filed a complaint against Geno’s alleging discrimination. The commission found probable cause to believe that the sign was discriminatory because it could make some customers feel unwelcomed.

Although the Geno’s case deals with an attempt to apply an “English-only” rule to customers, it highlights a growing issue in U.S. workplaces.

According to the Census Bureau, the number of U.S. residents who are defined as “limited English proficient” has more than doubled since 1980—from 10.2 million to 21.3 million. In 1980, less than one in 20 Americans struggled with English. Now, nearly one in 12 does. As the number of immigrants increases, English is a second language for more employees and applicants. Employers may be asking, “Under what circumstances can I impose an English-only rule on my work force?”

Costly settlements

In Pennsylvania, most lawsuits challenging English-only rules are brought under Title VII of the Civil Rights Act of 1964 or the Pennsylvania Human Relations Act. Most allege discrimination on the basis of national origin.

Claims may be brought either as disparate impact claims (where the employment practices are facially neutral but fall more harshly on one group and cannot be justified by business necessity), or disparate treatment claims (where the employer allegedly treats some people less favorably than others because of their national origin). No matter what theory the plaintiffs advance, such a claim can be costly.

For example:

  • In April 2001, the EEOC reached a $2.4 million settlement against a Texas university where 18 Hispanic housekeepers allegedly were ordered to speak only English on the job. Some of the employees could not speak English, and all were forbidden to speak Spanish, even during their breaks.
  • In July 2003, a Colorado casino agreed to pay $1.5 million to settle a national-origin discrimination suit with the EEOC on behalf of a class of Hispanic employees who alleged that they were verbally harassed and subjected to English-only rules. The employees alleged that managers and other non-Hispanic employees would shout, “English! English!” at them during encounters.
  • In May 2006, the EEOC announced the settlement of a national-origin discrimination suit against Highland Hospital of Rochester, Inc. and Strong Health for $200,000 on behalf of a class of Hispanic employees. The employees, who worked in housekeeping, were subjected to English-only rules without any business justification. One manager reportedly told the employees, “This is America. Speak English.”

Valid reasons for English-only

Employers need a business reason for an English-only rule. In general, an English-only rule can be justified—and is more likely legal—if it’s related to a business necessity (i.e., if the employer needs its employees to speak English to operate its business safely and/or efficiently).

In its Compliance Manual, the EEOC offers examples of valid English-only rules:

  • For communications with customers, co-workers or supervisors who only speak English.
  • In emergencies or other situations in which workers must speak a common language to promote safety.
  • For cooperative work assignments when the English-only rule is needed to promote efficiency.
  • To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

Employer obligations

Employees for whom English is a second language may become targets for discrimination or harassment by their co-workers. Employers have an obligation to protect those employees and ensure that they are not discriminated against or harassed based on their national origin. All employers should have anti-discrimination and anti-harassment policies in place that prohibit discrimination based on national origin—and procedures to stop it.

If your business has an English-only rule, or you are thinking about adopting one in your workplace, consult with counsel to develop a policy that will address your business needs while protecting you against possible discrimination claims.

For additional information, consult the EEOC’s Compliance Manual on National Origin Discrimination. Access the manual at www.eeoc.gov/policy/docs/national-origin.html.  

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Amy G. McAndrew is an associate with Pepper Hamilton LLP (www.pepperlaw. com), a Philadelphia-based, multi-practice law firm. She represents management in employment-related claims and counsels employers on employment policies and practices, and speaks regularly on employment-law related topics. She can be reached at (610) 640-7824 or mcandrewa@pepperlaw.com.

‘English-Only’ Employee Notification

As with any policy, an employer adopting an English-only rule should ensure that all affected employees are notified about the rule and about any disciplinary consequences for the rule’s violation.

The employer can provide this notice at a meeting, via e-mail or in the company’s newsletter. Provide notice in English and the other languages spoken by employees.