According to the U.S. Census Bureau, the number of people who speak a language other than English at home nearly tripled from 23.1 million (approximately 1 in 10) in 1980 to 67.8 million (almost 1 in 5) in 2019. By 2050, the United States is estimated to have nearly 138 million Spanish speakers. Given these statistics, it comes as no surprise that many employers have seen a significant uptick in the number of bilingual individuals in the workplace, including those for whom English is a second language. In the face of such linguistic diversity, companies may be tempted to institute English-only policies prohibiting the use of other languages in the workplace. However, broad-based bans on native languages may unwittingly give rise to claims of national origin discrimination under Title VII of the Civil Rights Act of 1964, if not narrowly tailored to comport with business necessity.

Hey Sugar, What You Gotta Say?

Equal Employment Opportunity Commission (“EEOC”) regulations make clear any rule requiring employees to speak only English at all times in the workplace constitutes a “burdensome term and condition of employment,.” 29 C.F.R. § 1606.7(a). According to the EEOC, because an individual’s primary language is “an essential national origin characteristic,” restricting employees from speaking their primary language may disadvantage their employment opportunities on the basis of national origin. Id.  However, the statute does provide a carve out for lawful policies that only require the use of English at certain times, if the employer can show the rule is justified by business necessity. 29 C.F.R. § 1606.7(b).

Satisfaction of the business necessity requirement for an English-only rule may include use for:

• communications with customers, coworkers, or supervisors who only speak English;

• emergencies or other situations where employees must speak a common language to promote safety (e.g., while working with hazardous chemicals, operating dangerous equipment, responding to an emergency);

• cooperative work assignments where the use of only English is imperative to promote efficiency; and/or

• situations where a supervisor who only speaks English needs to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.

Under the statute, if an employer believes business necessity requires a speak-English-only rule at certain times, the employer is required to inform 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). Failure to provide adequate notice will be considered evidence of discrimination on the basis of national origin if the employer takes adverse action against an employee for violation of the rule. Id.

Mama's Always Gotta Back-Track When Everybody Talks Back

As evidenced by the EEOC’s procurement of several large settlements from employers who implemented English-only policies that did not comport with the business necessity requirement and restricted use of native languages in the workplace at all times, missteps can be costly. Some of these settlements include:

• 2000 Court judgment of $700,000 awarded to 13 Hispanic employees against Premier Operator Services, Inc. for a speak-English-only policy;

• 2001 settlement of $2.44 million 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;

• 2003 settlement of $1.5 million with Anchor Coin on behalf of a class of Hispanic employees of the housekeeping department who were subjected to unlawful English-only rules;

• 2012 settlement of $975,000 with a California hospital on behalf of 70 Filipino-American employees;

• 2019 settlement of more than $2.6 million with La Cantera Resort and Spa for implementing a policy forbidding banquet staff from speaking Spanish at anytime, anywhere in the resort; and

• 2023 settlement of $276,00 with Total Employment and Management (TEAM), a Washington employer, who instituted a “No Spanish” rule in the workplace then fired five employees from two locations when they opposed the rule and continued to speak Spanish.

Never Thought I'd Live to See the Day (Ooh-Ah), When Everybody's Words Got in the Way, Oh!

For employers contemplating implementation of an English-only policy or those who need to ensure their current policy does not run afoul of EEOC regulations, the following guidelines should be considered:

• Can we justify the rule? The Company should weigh the business justifications for an English-only rule against any potential discriminatory effects.

• Are there any alternatives? An employer should evaluate whether there are any other steps it could take that would be equally effective in promoting safety and productivity without the need for the policy.

• Are the “certain times” clear? Because a total ban is unlawful, the policy should make clear when the use of English is required, and when other languages are permissible (e.g., during rest and meal breaks, when employees are not performing work, etc.). Like other well-drafted employment policies, an English-only policy should set forth the consequences for any violation, and the employer should ensure consistent, uniform enforcement.

• Have we provided proof of adequate notice? In accordance with EEOC regulations, which require proof of notice to employees, employers should create a written policy that is acknowledged by all employees and be prepared to provide a copy of the policy in a language other than English for those employees who may need to review it in their native language.

As always, Maynard Nexsen’s experienced attorneys are ready to assist with these issues, as well as all other needs pertaining to labor and employment law compliance.