Tuesday, June 10, 2014

"English Only" - Discrimination or Legit Job Requirement?

Are "English only" workplace policies legitimate job requirements or unlawful discrimination? This issue flares up from time to time, and like many areas of the law, the answer is "it depends."

The EEOC has staked out its position in a variety of ways. According to the EEOC's National Origin Discrimination guidance:
An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.
The EEOC has also stated that an "English only" rule may be justified by "business necessity." In its Compliance Manual - Section 13: Nation Origin Discrimination, the EEOC identified some examples of business necessities:
  • For communications with customers, coworkers, or supervisors who only speak English 
  • In emergencies or other situations in which workers must speak a common language to promote safety 
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency 
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
Yesterday, the EEOC announced a new lawsuit captioned EEOC v. Wisconsin Plastics, Inc. (E.D. Wisc. Civil Action No. 1:14-cv-00663), claiming employees were unlawfully terminated based on an English proficiency evaluation. Per the press release:
"Our experience at the EEOC has been that so-called 'English only' rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable," said EEOC Chicago Regional Attorney John C. Hendrickson. "But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer's business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin -- and thus violates federal law."
The bottom line: An employer can have an "English only" policy, but must have a non-discriminatory reason for it.

Image: EEOC seal - Not official use.

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