Can your employer require English only?

In today's increasingly diverse work force, many employers have employees who speak English as a second language. But in some workplaces, an employee's unfamiliarity with English has caused problems.

For example, two cashiers chat with each other in a language other than English while dealing with English-speaking customers. A customer complains about this 'rude behavior.”

Or an employee, seeing a falling object, yells, 'Watch out!” in another language to co-workers, some of whom do not understand that language.

While the first scenario might be considered poor customer service, the second is a safety concern.

To avoid such situations, some employers adopt a speak-English-only policy. However, employers enacting and enforcing this type of policy must be careful.

For one thing, many employers have found that letting employees speak the language they are most comfortable with actually increases morale and productivity. There is a legal reason also - the Equal Employment Opportunity Commission may consider an English-only policy to be discrimination based on national origin.

The EEOC's 'Guidelines on Discrimination Because Of National Origin” - available on the Web at www.eeoc.gov - make three points about English-only policies:

1. If a policy requires employees to speak only English at all times in the workplace, the EEOC will presume the rule violates the law.

2. An English-only policy that applies only at certain times is acceptable if 'the employer can show that the rule is justified by business necessity.”

3. An employer who has a justifiable business reason for an English-only rule that is limited to certain times must notify employees in advance of the times when English-only is required and of the consequences for violating the policy. If the employer does not notify employees and then makes an adverse employment decision against one of its employees for failing to speak English at the appropriate time, the EEOC 'will consider the employer's application of the rule as evidence of discrimination.”

Accordingly, there are two different standards. English-only at all times is presumptively illegal.

On the other hand, English only at certain times is lawful to the extent the employer can provide a business-necessity justification.

What constitutes a business necessity? The court cases indicate that employers have raised six different types of business justification, not all of which have been accepted.

Those justifications include:

l to ensure workplace safety

l to ensure effective supervision

l to ensure productivity and efficiency of the business

l to improve customer relations

l to promote worker harmony

l to improve employees' English skills.

For example, one court found an employer who banned the use of Spanish at all times was liable for discrimination for firing 13 Hispanic workers and replacing them primarily with non-Hispanic employees. On the other hand, one court upheld an employer's right to require bilingual employees to speak English while working.

The employer allowed Spanish to be spoken on employees' own time during breaks or while at lunch.

Of course, no company wants to wind up in court even if the outcome is in its favor. Defending against lawsuits and EEOC complaints is costly.

Iowa employers accordingly should consider the following advice. First, determine if you really have a problem. Employees' use of different languages may not be interfering with your company's interests.

However, if you think you have a problem and want to adopt an English-only rule, be sure you have a legitimate, non-discriminatory business reason for it.

Examples of such a business reason could include safety concerns, the avoidance of sexual harassment or other types of hostile-workplace claims, or the need to serve English-speaking customers, for example.

Do not ban the use of other languages at all times. Limit the ban to only those times when you have a business reason for it.

Finally, put your English-only policy in writing, make sure employees are notified of it and train your supervisors on how to administer it. Diversity training also may be helpful.

l Wilford H. Stone is with Lynch Dallas Attorneys at Law