A clothing store recently restricted three employees from speaking Spanish in the workplace. In turn, they sued stating that it was a violation of their civil liberties as well as discriminatory behavior.
The complaint says that the company’s human resources department was detached and dismissive to the worker’s concerns. They ignored phone calls, voicemails. They failed to take any action on behalf of the employees.
To make matters worse, the employees in question were told they would lose their jobs if they continued speaking in Spanish. They also faced other disciplinary actions.
The store’s parent company denies having an English-only requirement. Sadly, their store’s actions tell a different story.
So what does the law say?
At the Federal level the Equal Employment Opportunity Commission takes a dim view of “Speak English Only Rules.”
- A rule requiring employees to speak English at all time including breaks and lunches will rarely be justified
- English-only rules must be limited to ensure safety or operational efficiency.
- The ability to take disciplinary action against employees violating English-only rules is limited.
States have their own rules as well.
For example, California state law allows employers to limit language used while employees are on duty. This is only permissible as long as such a requirement is warranted by necessity.
In other words, the company must have the ability to clearly demonstrate that a language restriction has “an overriding reasonable business purpose”. Such purposes are limited in scope. One purpose could be to ensure safety. Another purpose could be to ensure proper corporate procedures are followed.
Companies seeking to implement an English only language plan must be able to clearly defend it. They have to demonstrate that it comes from more than a simple choice for English in the workplace.
For example, a hospital could make the case that having a common single language is required for a couple of reasons:
- To ensure the safety of all team members as well as patients.
- To ensure hospital procedures are reliably executed.
If a business is thinking about embracing English-only policies, it needs to be able to demonstrate necessity of the policy. It also must have a solid implementation plan that is well vetted to ensure it doesn’t cross the line into discrimination. Talking with legal counsel that specializes in this area of law is necessary.
According to Tyler Paetkau of the law firm Harnett, Smith, &Paetkau of Redwood City, CA, his comment was simple. “Typically, the suggestion is proceed with caution.”
If a company is determined to embrace an English-only policy, it must ensure that there is accompanying worker training and that workers clearly understand what disciplinary actions they may face if violating the rule.
And be mindful that a more flexible policy may be appropriate. For example, a company may require retail staff members to speak in English on the sales floor. But if a patron requests help in Spanish and the sales rep speaks Spanish, the employee would be allowed to conduct business in Spanish for the purpose of that specific transaction.
Where English-only rules tend to run into issues is when they are overreaching. For example, insisting that workers speak in English while on breaks or when making personal calls. This is a clear violation of Federal statute.
The issue here is liability and making sure the company isn’t exposed to claims of discrimination.
Having a well-constructed policy built with the help of legal council is clearly critical. But we also recommend you consider EPL insurance. (Also called EPLI or Employment Practices Liability Insurance. It offers critical coverage to employers. It’s designed to protect the company against claims made by employees alleging things like discrimination (based on sex, race, age, or disability), harassment, wrongful termination, and other employer-employee related issues.
For further thoughts on managing all forms of your corporate risk and adequately protecting your company, be sure to reach out to us.