English-Only Policies: New Lawsuit Highlights Risk for Employers

See Espinoza, et al. v. Gate Gourmet, Inc., Los Angeles County Superior Court, Case No. BC581121. The lawsuit alleges that the Company’s shift manager prohibited employees from speaking Spanish during the “swing shift” from 2 to 11 p.m., even though the Company had no English-only policy and the majority of workers had been speaking Spanish on the job for almost a decade without incident. The lawsuit further alleges that workers are “constantly under threat and scrutiny” for speaking Spanish, and that at least one worker received a written warning about her continued use of Spanish. The Company has denied that it required its employees to speak only English.

The Mexican-American Legal Defense and Educational Fund brought these claims on behalf of the 14 employees against the backdrop of the most recent United States Census Bureau data showing that a record 38.4 million people speak Spanish at home in the U.S., including 2.6 million non-Hispanics who speak the language. The same data also shows that one-third of Hispanics rate their speaking ability as less than “very well,” or do not speak English at all. With such linguistic diversity at home and in the workplace, there is increased sensitivity and scrutiny towards English-only policies that restrict communications in languages other than English. Thus, before restricting communications in this way, employers should take preventative measures or familiarize themselves with the risk and legality of such policies.

Employer Guidance On English-Only Policies

The Equal Employment Opportunity Commission (“EEOC”) has observed that “the primary language of an individual is often an essential national origin characteristic.” 29 C.F.R. § 1606.7(a). The applicable EEOC regulations state that requiring employees to speak only English at all times in the workplace (e.g., even during conversations between employees on break) is presumed to violate Title VII. Id.; but see Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) (rejecting section 1606.7 and EEOC guidelines as improperly shifting the initial burden of proof to the employer). However, a workplace English-only rule that is narrowly tailored to apply only at certain times may be adopted if justified by business necessity. 29 C.F.R. § 1606.7(b). Examples of “business necessity” include:

1. For communications with customers, coworkers, or supervisors who only speak English;
2. In emergencies or other situations in which workers must speak a common language to promote safety;
3. For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
4. To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Id.; see also Pacheco v. New York Presbyterian Hosp., 593 F. Supp. 2d 599 (S.D.N.Y. 2009) (English-only policy limited to when supervisors are present is justified as business necessity because supervisors need to properly evaluate bilingual employees). Several states have also passed laws to address restrictions on employees’ communications in other languages. California, for example, imposes a higher burden on employers by even more narrowly defining “business necessity.” Cal. Gov’t Code § 12951(a).

Additionally, “an employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule.” 29 C.F.R. § 1606.7(c). If an employer does not provide this notice and subsequently makes an adverse employment decision based on an employee’s violation of the English-only rule, then the employer’s application of the English-only rule can be used as “evidence of discrimination on the basis of national origin.” Id.

Employer Considerations Concerning English-Only Policies

The EEOC has secured several significant settlements on this issue, indicating that employers face substantial risks when implementing English-only policies. In 2001, the EEOC announced a $2.44 million settlement with the University of Incarnate Word on behalf of 18 Hispanic housekeepers who were subjected to an English-only policy that required them to speak English at all times. In September 2012, the EEOC obtained a settlement of $975,000 from a hospital facility in California on behalf of 70 Filipino-American employees.

As noted above, courts are split on the EEOC’s position that broad English-only policies can be per se discriminatory. But even in jurisdictions where courts have rejected the EEOC’s position on English-only policies, the employer does not automatically prevail. The court will look to the totality of circumstances surrounding the English-only policy; such policy may be found discriminatory if there is other evidence of discrimination (e.g., inconsistent application of the policy). Further, such policies may generate substantial cultural and legal controversy within and outside the Company. Therefore, employers should evaluate the need for such policies, and if necessary, carefully construct their language. Some tips for employers seeking to implement English-only policies include:

• Employers should weigh the business justifications for the policy against any possible discriminatory effects.
• Before adopting such a policy, employers should consider whether there are alternatives that would be equally effective in promoting safety or efficiency.
• The policy should not single out or exclude a particular language.
• The policy should specify times or instances when the policy is not in place. For example, the policy should affirmatively state that employees can speak in any language during their breaks, lunch, or other personal time.
• The policy should specify the consequences of violating the policy.
• Employers should obtain a signed acknowledgement of receipt of the policy from employees.
• If an employee cannot speak English, the employer should provide the employee with a translated policy.
• Employers should ensure that the policy is enforced uniformly. This may include training sessions for management staff.

Training of management is a key to compliance with EEOC regulations and California law. As seen in the Gate Gourmet case, the actions of a manager will be used against an employer, even in the absence of a formal English-only policy. For further guidance, employers should seek legal advice from an employment specialist.