From California Labor and Employment Law Review, Vol. 28, No. 3, May 2014
Laws Governing the Use of English-Only Policies in the Multilingual Workplace
By María G. Díaz
The 2010 U.S. Census revealed that over 43.5% of California's population speaks a language other than English at home.1 These numbers may also represent the increasingly multilingual nature of California's workforce. While multilingualism is certainly a valuable resource for California employers competing in a global economy, it also poses considerable challenges for employers who seek to impose English-only language policies in the workplace.
The existence of English-only language rules in business settings has a long history in the United States. One of the first cases to examine the civil rights implications of English-only policies concerned a rule that applied to customers, rather than workers. In the 1973 case of Hernandez v. Erlenbusch,2 several Mexican- American patrons brought suit against the owners of a tavern in a small Oregon town, challenging their policy of prohibiting patrons from speaking languages other than English while seated at the bar. The house rule directed bartenders to escort non-compliant customers to one of the establishment's back booths, and to raise the volume on the juke box to drown out their conversation. According to the tavern owners, they devised the English-only rule in response to "fear on the part of the white clientele that the Chicanos [were] talking about them."3 The rule "served everyone's interests" by keeping the peace in a public place frequented by both of the town's ethnic groups.4 The federal district court, however, found this justification unpersuasive, holding that the plaintiffs' civil rights had been violated. In the court's view, the English-only rule "deprived Spanish-speaking persons of their rights to buy, drink and enjoy what the tavern has to offer on an equal footing with English-speaking consumers."5
While today's legal and business realities make it virtually impossible to restrict the use of a customer's language, some businesses continue to contend that maintaining "peace" requires their employees to use only English in the workplace. Much like the Oregon tavern owners of 40 years ago, employers who adopt English-only rules often claim the need to promote cooperation and to protect customers and workers from anxiety because they believe they are being talked about in a language they cannot understand.
Under both federal and California law, English-only policies may be unlawful unless narrowly tailored and supported by business necessity. Moreover, as more fully set forth below, the Fair Employment and Housing Act (FEHA), unlike Title VII, includes strict statutory requirements for employers having such policies.
A. Federal Law
The Equal Employment Opportunity Act and Title VII prohibit employers from discriminating based on an employee's national origin and ancestry.6 Even though a person's language use may be strongly correlated with membership in a racial or ethnic group protected under Title VII, Title VII does not by its own terms provide legal protection from discrimination on the basis of language usage.
Congress delegated enforcement of these laws to the Equal Employment Opportunity Commission (EEOC).7 The EEOC's definition of national origin discrimination includes an employer's "denial of [an employee's] equal employment opportunities" because of "physical, cultural or linguistic characteristics of a national origin group."8 To protect employees from policies that discriminatorily restrict their freedom to speak a particular language, the EEOC produced regulatory guidelines in 1980 that interpret national origin discrimination to include some workplace "English-only" policies that require all employees to speak only English.9
Under those guidelines, there are basically two types of workplace English-only policies: (1) policies that
require employees to speak English at all times during work hours, including during the lunch hour or breaks; and (2) policies that require employees to speak English at certain times and in certain situations.10 The EEOC automatically presumes a Title VII violation for workplace English-only policies that require employees to speak English at all times during the workday, including during breaks and other personal time.11 The EEOC contends that language can be a primary characteristic of one's national origin and that arbitrary restrictions on language can "create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment."12 Workplace English-only policies that require employees to speak English only at specific times, however, are permitted if the employer can show that the English-only policy serves a specific "business necessity."13 If an employer implements an English only rule, the employer must inform its employees of the restrictions, as well as the consequences of noncompliance.14 Without prior employee notification, the EEOC will interpret any adverse action toward an employee for speaking a language other than English as evidence of discrimination.15
Although the EEOC regulations create a presumption of discrimination with respect to any "English-only" policy, the Ninth Circuit has not endorsed those guidelines.16 However, the court has previously expressed agreement with much of the EEOC's reasoning in the regulations, including the notion that English-only rules can "create an atmosphere of inferiority, isolation, and intimidation."17
Several other federal courts, including those in the Fifth and Seventh Circuits, have adopted the EEOC guidelines.18 Some of the courts recognizing the EEOC's guidelines further hold that an employer who establishes a business necessity--such as a high degree of either potential or actual risk of health and safety violations--can be allowed to enforce restrictive language policies.19 Nonetheless, even when a legitimate business necessity is established, adverse actions against employees for minor violations of the policy can still be discriminatory.20 Whether an employer can show "business necessity" depends on whether the employer instituted the policy in response to actual complaints or merely due to perceived but unsubstantiated threats.21
Thus, even when adopting restrictive language policies under the more relaxed federal standards, employers are well-advised to ensure such policies are supported by actual business necessity and not just business concerns, purpose or perceptions. As the Ninth Circuit noted in Gutierrez, some employers have implemented English-only policies in an attempt to curb alleged hostility among the workers, yet the implementation of a restrictive language policy may actually increase the racial tension between workers.22
B. California Has Stringent Laws Governing English-Only Policies
The primary California statute prohibiting employment discrimination is FEHA. In 2001, the California Legislature enacted Cal. Gov't Code § 12951 as part of FEHA, to clearly manifest the Legislature's determination that without a legitimate business necessity, a workplace language policy constitutes actionable discrimination based on national origin or ancestry.23
Section 12951 is entitled "Workplace Language Policies," and it manifests the Legislature's clear intent to codify the preexisting Fair Employment and Housing Commission (FEHC) regulations prohibiting restrictive language policies in the workplace.24 In codifying the preexisting FEHC regulations, the Legislature wanted to expressly avoid conflicting interpretations of the regulations in California court decisions, and this was cited as a major impetus for the statutory enactment.25
Contrary to federal law, under Cal. Gov't Code § 12951, courts do not have discretion to determine whether restrictive workplace language policies are discriminatory. California statutory law expressly limits the scope of any court rulings solely to a determination of an employer's defense of business necessity.26
An employer still may rebut allegations of discrimination based on national origin by showing the necessity for the English-only rule and that the employer has notified its employees of the rule and of the consequences for violating the language restriction.27
Even after a showing of necessity and of proper notification, an English-only policy still may be unlawful where an alternative, less discriminatory practice would have the same effect.28
Essentially, both the EEOC guidelines and Cal. Gov't Code § 12951 require a showing of business necessity by an employer to justify a restrictive language policy in the workplace. Since there is currently little case law addressing FEHA's workplace language provisions, California courts are likely to look to federal court decisions that have adopted the EEOC regulations for their interpretations of "business necessity."29 Because the Ninth Circuit has not adopted the EEOC regulations, other federal courts may ultimately play a crucial role in helping California courts further define "business necessity" under Cal. Gov't Code § 12951.
Employers who want to adopt lawful English-only policies should carefully review the business justification and narrowly craft the policy to meet that specifically articulated business justification. While there is no set formula for what constitutes "business necessity," the EEOC Compliance Manual on National Origin Discrimination lists some situations in which a business necessity to operate safely or efficiently could justify an English-only rule, including: (1) emergencies or other situations in which workers must speak a common language to promote safety; (2) for communications with customers, coworkers, or supervisors who only speak English; and (3) for cooperative work assignments in which the English-only rule is needed to promote efficiency.30 Employers should be aware that without a provable business justification for an English-only rule, a court may well view the rule as discriminatory.31
Finally, in evaluating whether to adopt an English-only rule, an employer must weigh the business justifications against its potential discriminatory effects. The EEOC's Compliance Manual on National Origin Discrimination points out that although there is no precise test for making this evaluation, relevant considerations include: (1) evidence of safety justifications for the rule; (2) evidence of other business justifications for the rule, such as supervision or effective communication with customers; (3) likely effectiveness of the rule in carrying out those objectives; and (4) the English proficiency of workers affected by the rule.32
16. See Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993). EEOC guidelines are generally entitled to considerable deference, so long as they are not inconsistent with congressional intent. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95 (1973). Back
17. See Gutierrez v. Municipal Court, 838 F.2d 1031, 1040 (9th Cir. 1988) vacated and remanded by 490 U.S. 1016 (1989). (citing necessity test as the proper standard for determining the validity of English-only rules applied to certain times and situations during the work day). Back
18. See, e.g., EEOC v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911 (N.D. III. 1999) (adopting the EEOC guidelines in resolving a workplace English-only policy disparate impact claim). The court noted that the denial of en banc reconsideration in Spun Steak "evoked a powerful dissent" from Judge Reinhardt that "should be read in full to appreciate its total impact." Id. at 915. See also EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000). (adopting the EEOC guidelines in holding that a bilingual employee may establish disparate impact by showing he is more likely to lapse into his native language, and have a higher risk of termination for violation of an English-only policy). The court's findings included that the policy served to create a disruption in the work place and feelings of alienation and inadequacy by Hispanic employees who had, up until that time, been proven performers for the company. Id. at 1070. Back
21. See Gutierrez v. Municipal Court, 838 F.2d at 1042. (noting that an employer may not implement restrictive language policies in order to prevent bilingual workers from making discriminatory or insubordinate remarks when there is no showing that such remarks have ever been made by the bilingual workers). Back
23. Cal. Gov't Code § 12951 states:
25. Sen. Judiciary Comm., Comm. Analysis of AB 800 at 5 (July 17, 2001). At the time, the FEHC promulgated regulations used to enforce the FEHA. Cal. Code Regs. tit. 2, §§ 7285.3–7285.7 (2001) (explaining the powers and duties of the FEHC). The FEHC regulations codified in Cal. Gov't Code § 12951 prevent businesses from implementing restrictive workplace language policies. Cal. Code Regs. tit. 2, § 7289.5 (2001). Under these regulations, employers are only relieved of liability for discrimination when they implement restrictive language policies based on a business necessity and only after notifying employees of the policy and of the consequences of violating the policy. Cal. Code Regs. tit. 2, § 7289.5(d) (2001). Back
28. See City and County of San Francisco v. FEHC, 191 Cal. App. 3d 976, 990 (1987) (stating that "the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced; or accomplish it equally well with a lesser differential [ ] impact"). Back
29. For instance, the court in the unpublished decision of Maldonado v. Town and Country Manor, G040167, 2009 Cal. App. Unpub. LEXIS 5125 (June 25, 2009), briefly addressed and ultimately dismissed the plaintiffs' FEHA claim against the defendant's English-only policy, because the plaintiffs failed to prove that an employer-employee relationship existed. Similarly, in another unpublished opinion, the court of appeal affirmed the trial court's dismissal of plaintiff's FEHA national origin discrimination claim based on the employer's English-only policy, because the plaintiff did not argue that he was terminated for speaking a non-English language, but because he did not speak English sufficiently. See Rodriguez v. PCH Logistics, Inc., B183481, 2006 Cal. App. Unpub. LEXIS 9957 (Oct. 31, 2006). Back
31. Employers should also be aware that although a court in one jurisdiction may uphold a policy as supported by a valid business justification, a court in a different jurisdiction may view the business justification as invalid or not supported by the evidence. See, e.g., Atonio v. Wards Cove Packing Co., No. C-74-145-JLO, 1983 U.S. Dist. LEXIS 11994, 1983 WL 651 (W.D. Wash., Nov. 4, 1983) (finding employer established business necessity through a high degree of either potential or actual risk of health and safety violations and allowing enforcement of restrictive language policies); Long v. First Union Corp., 894 F. Supp. 933, 941 (E.D. Va. 1995) aff 'd per curiam, 86 F.3d 1151 (4th Cir. 1996) (English-only policy may be legitimate and necessary for business where adopted to "prevent employees from intentionally using their fluency in Spanish to isolate and to intimidate members of other ethnic groups"); see also EEOC v. Premier Operator Serv, Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000) (holding that a bilingual employee may establish disparate impact by showing he is more likely to lapse into his native language, and have a higher risk of termination for violation of an English-only policy). Back