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ARE YOU SPEAKING THE EEOC'S LANGUAGE?

lu_hwe_logo.jpgEmployers considering whether to insist that their employees speak only English in the workplace should be aware that the Equal Employment Opportunity Commission ("EEOC") provides guidance about when such a requirement is permissible. In an apparent response to the influx of workers whose primary language is other than English, the EEOC has scrutinized employers' English language policies to determine whether they violate federal law.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., prohibits discrimination on the basis of national origin. While Title VII does not specifically prohibit discrimination based on a job candidate's or employee's primary language, the EEOC and courts have concluded that since language is an "essential national origin characteristic," employment decisions based on an English-only requirement may violate the law.

The EEOC has issued a compliance manual to assist employers with such policies. Section 13, Paragraph 13-V.C. of the manual provides, ". . . where an English-only rule has been adopted for non-discriminatory reasons, the employer's use of the rule should relate to specific circumstances in its workplace. An English-only rule is justified by 'business necessity' if it is needed for an employer to operate safely or efficiently." The manual further provides that the "business necessity" standard would be satisfied for "communications with customers, co-workers, or supervisors who only speak English." Finally, the manual indicates that an evaluation of the employer's "business necessity" will include "safety justifications for the rule."

Consistent with this guidance, employers should scrutinize their English-only policies to assure compliance with Title VII's prohibition against national origin discrimination. See 29 C.F.R. § 1606.7. An English-only policy which prohibits employees from speaking in a language besides English at all times will likely be construed as a condition of employment which violates Title VII. In contrast, where an employer's policy requires an employee to speak English at particular times, based on a business necessity, such a policy should comply with federal law.

A helpful case on this point is Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007). In Montes, a Hispanic Environmental Services employee who worked at a hospital in Colorado was proficient in Spanish, but her English proficiency was low. She was directed by her supervisor and nurses to speak English while cleaning the hospital's operating rooms. The employee was also told she could speak Spanish during her breaks and outside of the operating rooms. As a result of the hospital's requirement that she communicate exclusively in English while performing her housekeeping job, the employee sued the hospital, alleging that its English-only policy created a hostile work environment based on her national origin.

The federal court rejected the plaintiff's claim. It first acknowledged that sweeping English-only policies which are "applied mechanically" and "enforced in all circumstances and at all times within the work environment" can give rise to a claim under Title VII. However, after indicating its recognition that some English-only policies are overly broad, the court ruled that the hospital's policy complied with Title VII because it applied only at certain times, and there was no evidence to suggest that the policy was based on an improper motive or gave rise to a discriminatory effect. Ultimately, the court understood that the policy was based on valid safety concerns. As a result, the court concluded that facilitating clear communication between the cleaning staff and medical staff was essential in the hospital's operating rooms, and was a justified "business necessity."

While the safety-based reasoning in Montes is easy to understand, a seemingly closer question arose in Pacheco v. New York Presbyterian Hosp., 593 F. Supp. 2d 599 (S.D.N.Y. 2009). In that case, a supervisor at a New York hospital required all of his subordinates to speak only English in response to numerous complaints from patients who felt that Spanish-speaking employees were talking about them in a language they did not understand. The supervisor instructed the employees to speak only English while in the presence of patients. The employees were allowed to speak Spanish or their other primary languages when patients were not present.

One employee, of Puerto Rican origin, sued the hospital based on national origin discrimination, alleging a hostile work environment, disparate treatment, disparate impact, and retaliation based on implementation of the English-only policy. In response, the hospital explained that its English-only requirement was a "business necessity" because it promoted better patient-staff relations and also helped English-speaking supervisors properly supervise and evaluate subordinates. In granting the hospital's motion for summary judgment, the court ruled that the hospital's narrowly-tailored English-only requirement was indeed based on a "business necessity."

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