Employers who adopt English-only policies in the workplace expose themselves to a risk of claims for discrimination. Since the circumstances in which an English-only policy might be justified are quite narrow, employers should not adopt such a policy before conferring with counsel, and any such policies should be carefully drafted and narrowly tailored.
With a more diverse workforce, on July 1, 2018, California’s Fair Employment and Housing Council adopted new regulations that provide English-only rules are presumptively unlawful. Employers can overcome the presumption of illegality only by proving that the rule is justified by a business necessity. Rules requiring English during non-work time such as meal periods and rest breaks are always unlawful pursuant to the new regulations. The law permits implementation of English-only policies only in very limited circumstances, however, and employers may expose themselves to liability if they adopt such a policy without careful consideration.
Both state and federal law regulate an employer’s ability to adopt policies limiting the use of a language in the workplace. California’s Government Code Section 12951 prohibits employers from limiting or prohibiting the use of any language in the workplace unless:
- the restriction is justified by a business necessity, and
- the employer has notified employees of both the circumstances when the language restriction is required to be observed, and of the consequences for violating the language restriction.
The law defines the term “business necessity” quite narrowly as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact.” The federal Equal Employment Opportunity Commission also scrutinizes English-only policies closely to determine if they are justified by “business necessity.”
Under the applicable law, an English-only policy is not justified merely because monolingual English-speaking employees regard others as rude when they speak in languages other than English at work, or because English speakers might want to understand all the conversations that occur in the workplace, or even because a company’s customers may prefer for communication to be conducted only in English.
Employers clearly should not apply English-only policies to employees whose jobs do not logically require that they speak English. Moreover, the new regulations prohibit practices that negatively impact employees based on national origin, and the regulations specifically identify decisions based on an applicant or employee’s proficiency in reading or writing English as such a practice. Any policies mandating the use of English must be narrowly tailored to achieve their essential business purpose.
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