An Employer's Right to Insist on All Employees' Speaking Only English

I was employed for nearly 25 years at the Florida Department of Revenue. During that tenure, I would eat lunch in a "break room", often at a communal table shared with a number of co-workers. It was usual to have other employees' converse in Spanish at the table, thereby excluding those of us who were not bilingual to feel and be excluded. There is no doubt in my mind that this behavior was extremely rude on a personal level; there is equally no doubt that the use of a language that was comfortable to these employees was not designed to make me uncomfortable. Similarly, the exclusion of co-workers creates a hostile work environment, one in which an employer may have a right to control.

There is, in this country, growing anxiety over undocumented residents, gaps in the control of our borders and a general feeling of xenophobia among our population, especially on the Right of the political spectrum. Much of this feeling translates into a wish to impose "English Only" regulations in the workplace, to be enforced either by the Federal or state governments or, at the least, imposed by employers in private business.

During the past weeks, those good natured folks at Fox News have gotten their undies in a wad over a lawsuit brought by the Equal Employment Opportunity Commission against the Salvation Army. The result, according to Fox and its commentators, will be airplanes crashing because of the inability of controllers to communicate, buildings destroyed because firefighters will not understand the fire's location, and so on.

Recently, in Massachusetts, the EEOC brought suit against the Salvation Army which had a policy of insisting all employees speak English on the premises; those employees who could not speak English were given one year to learn the language and, if they did not or could not, the employees would be discharged.

According to the lawsuit, clothes sorters Dolores Escobar, from the Dominican Republic, and Maria del Carmen Perdomo, from El Salvador, had been speaking Spanish at work for five years when the Salvation Army decided to enforce its English-only policy. The store gave them a year to learn English and fired them in 2005 when they did not. These women did not come into contact with the public. There had been no suggestion that the inability to speak English had the slightest impact on job performance. By all reports, moreover, their job performance had been exemplary.

Without going into too much detail, the Federal Civil Rights Law prohibits discrimination based on, among other things, national origin. This has come to include the disallowing of prohibitions against speaking Spanish or any language other than English unless there is a darn good reason for the prohibition. Obviously, a broadcasting company seeking a news anchor for the 6:00 news can reasonably insist on someone who speaks English; an air traffic controller must be able to converse clearly in English; a "911" operator in a bi-lingual (or multi-lingual) community might be required to be reasonably proficient in more than one language.

The Courts have divided on the issue of employment discrimination on the basis of language preference. This area is not explicitly referred to in the statute. There is almost universal agreement that any employment discrimination based on language must be for a bona fide business purpose. The Equal Employment Opportunity Commission several years ago issued clarification of the English only rule: "An English-only rule is justified by 'business necessity'

According to the EEOC, business necessity would justify implementing an English-only rule under the following circumstances: "(a) For communication with customers, coworkers, or supervisors who only speak English; (b) In emergencies or other situations in which workers must speak a common language to promote safety; (c) For cooperative work assignments in which the English-only rule is needed to promote efficiency; and (d) To enable a supervisor, who speaks only English, to monitor the performance of an employee whose job duties require communication with coworkers or customers." This list is neither exclusive nor exhaustive but as long as other circumstances satisfy the basic business necessity test, they would not be deemed discriminatory.

The issue that is now being raised again involves something quite different from the designation of English as the "official language" of the United States: May an employer insist that employees who are not interacting with the public learn and speak only English on the employer's premises?

Senator Lamar Alexander, Republican from Tennessee, claims he is utterly dumbstruck that legislation that would shield the Salvation Army, a bill he views as simple common sense, has been blocked by Speaker Nancy Pelosi. He noted that the full Senate passed his amendment to shield the Salvation Army by 75-19 last month, and the House followed suit with a 218-186 vote just this month. "I cannot imagine that the framers of the 1964 Civil Rights Act intended to say that it's discrimination for a shoe shop owner to say to his or her employee, 'I want you to be able to speak America's common language on the job,'."

Meanwhile the Wall Street Journal in an editorial suggested that the "real" issue was the designation of English as the "official" language of this country and denied that issues of immigration or xenophobia were at play. "You can have English-only rules ... if in fact that English-only rule is relevant to job performance, safety, efficiency and so on," countered Rep. Charles Gonzalez, Democrat from Texas. "If it is not relevant, if it is discriminatory, if it is gratuitous, if it is a subterfuge to discriminate against people based on national origin - which we know that's what it is - the EEOC doesn't allow it." There have been only a handful of cases brought by the EEOC- almost always the employer agrees that the English-only rule, if unrelated to job performance, is dropped.

This is not a question of English as being "official", although I am not all that certain as to what that really means. It is also not a suggestion that people coming to live in this country should not learn English and attempt to assimilate into our culture. They should if it is at all possible.

The issue of an "official language" is an interesting one and has ebbed and flowed since Colonial and pre-Colonial times. Sooner or later, I intend to expound on this fascinating topic - but that's for a later date.

For now, it is simply a question of discrimination in the workplace, nothing more nor anything less.