“English-Only” Policies May Constitute National Origin Discrimination.
The language we all speak is closely connected to our heritage and nationality. For this reason, “English-Only” rules are generally viewed as discrimination on the basis of national origin. National origin is a protected category under both state and federal law. National origin discrimination involves treating employees (or applicants) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background.
Under both Federal Law and California State Law, “English-Only” policies will be upheld only in very specific circumstances.
California Makes “English-Only” Language Use Policies Illegal, Unless…
California has a statute that makes “English-Only” policies presumptively illegal under California’s Fair Employment and Housing Act (FEHA). Government Code Section 12951 provides that adopting or enforcing these policies is an “unlawful employment practice” under FEHA unless:
- The language restriction is justified as a business necessity; and
- The employer notifies the employees of all the following: a) the circumstances and b) the time when the language restriction is required to be observed, and c) the consequences of violating the restriction.
Business necessity is defined as:
an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.
A. Business Necessity.
Thus, to establish a lawful “English-Only” policy in California, an employer must first prove its policy is necessary for both:
- safety and
If the employer can show both, it must then demonstrate that the policy has been “narrowly tailored” to a legitimate business purposes. “Narrowly tailored” means:
- that the policy effectively fulfills the purpose it was implemented to achieve; and also
- that there exists no alternative practice other than restricting employee language that would do the same thing equally well with a lesser discriminatory impact.
That’s a detailed showing for the employer to make — it has 4 parts and the employer bears the burden to show all the parts.
But wait, “business necessity” was only part of the test. In addition, the employer with the “English-Only” policy must also show that it gave notice of three things:
- circumstances (e.g., certain work areas or certain work interactions) when language restriction must be observed; and
- time when language must be restricted; and
- the consequences of violating the restriction.
Without succeeding on both the “business necessity” 4-part test and the 3-part notice provision, the policy will be regarding as an unlawful employment practice under FEHA.
The above FEHA rules will apply to the majority of cases arising in California, so most California employees and employers can probably stop reading here. The next part discusses the rule under federal law (Title VII and the related EEOC regulations).
Federal Law On “English-Only” Policies.
The U.S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency that administers and enforces civil rights laws against workplace discrimination. Since the 1970’s the EEOC has recognized that a rule requiring employees to speak only English at work is discriminatory. But an “English-Only” rule that is only applied at certain times is permitted under federal law if the employer has given the employees advance notice of the rule and can show the rule is justified by the stringent standard of “business necessity.” The EEOC has a detailed page on National Origin Discrimination that analyzes the interplay between discrimination or harassment and “English-Only” policies. According to EEOC Guidelines, “business necessity” justifies implementing an “English-Only” rule under the following circumstances:
- to enable supervisors who speak only English to properly monitor job performance;
- to promote safety in emergency situations;
- to promote efficiency when multi-lingual speakers collaborate on work projects with English-only speakers;
- to promote customer relations when speaking with English-speaking customers.
Courts will carefully examine whether an “English-Only” rule is discriminatory and illegal. Employers should proceed with caution in deciding whether to implement such a rule. Employers should do a detailed analysis under applicable law about the actual need for such a rule and whether any actual need can pass what is essentially a “strict scrutiny” analysis. If a decision is made to use a language policy, then employers will need to ensure the notice to employees and the implementation/enforcement are all done correctly.