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Understanding What Language Policies Are and Are Not Legal In the Workplace

Published:  May 21, 2018

Last week, a New York-based attorney made national news when a tirade against Spanish-speaking employees of a restaurant was caught on camera and posted online. The attorney complained to the restaurant that he heard employees speaking Spanish to other customers. Even if we ignore the deeper implications of his outrageous threat to call Immigration and Customers Enforcement (without any indication that the employees were immigrants, much less undocumented immigrants), his comments belied a profound misunderstanding of the law, which, as an attorney, makes his outburst even more embarrassing. As individuals in the business community, it’s important that we understand what language policies are and are not legal in the workplace.

To start with, English is not the national language of the United States. In fact, the United States does not have a national language. English does serve as the de facto national language, and roughly three quarters of the U.S. population only speak English. English is, however, the official language of twenty-nine states, including multiple states where English is one of multiple official languages. Other states have adopted so-called “English Plus” policies, which encourages English but provide services for non-English speaking individuals. Nonetheless, even where English is the “official” language, it may not be the only language.

English-only policies are often used as a pretext for discrimination. The primary language of an individual is often an essential characteristic of their national origin. Prohibiting employees from speaking their primary language in the workplace disadvantages employment opportunities to the point where it may violate Title VII of the Civil Rights Act, as well as some state and local laws. Under Title VII, the Equal Employment Opportunity Commission will closely scrutinize any English-only policy to ensure it does not create a discriminatory working environment. According to the EEOC, English-only policies do not violate Title VII, so long as the policy serves a legitimate business necessity and employees have notice of the policy. Generally, English-only rules should be limited to circumstances where it is needed to operate efficiently and/or safely. For example, you may require your employees to speak English to communicate with customers that only speak English. (By contrast, in most cases, prohibiting employees from speaking other languages on their breaks will almost never comport with these standards.)

This demonstrates the foolishness of the attorney’s rant. The attorney complained that the employees were speaking Spanish with Spanish-speaking customers. What legitimate business necessity is served by requiring an employee to speak English with a customer that doesn’t speak English? There is none. Far from obstructing the safe and efficient operation of the restaurant, the employee was providing added value by enabling the restaurant to serve a larger percentage of the population. This is particularly true in cities, like New York, that cater to a large number of tourists and/or have large immigrant or large language-minority populations.

However, more narrow English-only policies may be lawful if they serve a legitimate purpose, such as safety. There are certainly situations where quick, clear communication is necessary to ensure safety. If you feel that an English-only policy is necessary, you should consult with counsel to devise a policy that serves the legitimate purpose, without violating Title VII or state law.

If you have any questions about any labor and employment law matters, please contact the attorneys at Royal, P.C.