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Large-scale immigration into this country in recent years has resulted in a larger number of American workers who prefer to speak in a foreign language. For various reasons, employers have increasingly responded by requiring English to be spoken on the job, at least at certain times and places. Unwary businesses, however, may regret an ill thought out “English only” policy. The frequency of discrimination complaints and lawsuits over such restrictions has increased substantially. In 1996, when the EEOC began tracking language complaints, there were 91 charge filings. There were 443 such filings last year. At this writing, it is impossible to gauge the effect, if any, of the September 11 terrorist attacks on public sentiment for English-only rules. Federal EEOC guidelines severely limit the use of English-only requirements, but few courts have construed those guidelines and a majority of those courts have declined to follow some of their more sweeping provisions. State laws also vary widely. For example, a California measure imposing broad restrictions on English-only rules takes effect January 1, while a New Jersey appeals court a few months ago took a much narrower approach. To improve workplace harmony and avoid litigation, businesses in any American jurisdiction who wish to establish English-only rules should take certain precautions. These include the articulation of legitimate business reasons for adopting such a policy, the drafting of a written policy and provision of advance notification to employees of when, how and why such a policy will take effect. Even employers without English-only rules should instruct supervisors not to impose such restrictions informally. A FAILURE TO COMMUNICATE The past decade has seen a dramatic increase in the number of immigrants to this country, particularly from Hispanic and Asian countries. Recently released Census figures show that the number of Hispanics rose 60 percent since 1990, to 35.3 million people, putting that category of people into a virtual tie with African-Americans as the nation’s largest minority group. Diversity in the workplace brings many benefits, including a greater variety of skills and life experiences. It can also present problems, particularly in the form of poor communication among those who speak different languages. Many new immigrants prefer to speak in their native tongue, which often is not English, but might be Spanish, Hindi or Tagalog. This may cause confusion and resentment among supervisors, customers or fellow employees. English-only restrictions, however, may cause equal frustration among the new immigrant employees. Employers have a variety of reasons for requiring English on the job, including: (1) Safety — Employees need to understand each other, especially in emergencies or when handling dangerous equipment. (2) Customer Relations — An English-speaking clientele may feel uncomfortable with employees who are not speaking their language; and (3) Employee Harmony — Separate languages may effectively segregate an employer’s workforce by ethnic group. Every workplace poses different challenges. But one almost sure-fire way to alienate foreign-speaking workers and increase the risk of litigation is to permit managers unlimited discretion in imposing language restrictions. It is probably never a good idea to permit a manager simply to announce one morning, without warning, “I want English spoken on the job.” A prudent employer will also consult the law in that jurisdiction before adopting any restrictions and will notify the workforce of the restrictions in writing. THE LACK OF A FEDERAL STANDARD At the heart of the legal battle over English-only rules at the federal level are certain EEOC guidelines concerning national origin discrimination under Title VII of the Civil Rights Act of 1964, codified at 29 C.F.R. � 1606.7. These regulations place a heavy burden on employers to justify the use of such restrictions, favor partial rather than complete bans on non-English speaking and require notification to employees. Congress in enacting Title VII did not define the term “national origin.” The EEOC guidelines, however, state that an individual’s primary language is an essential element of his or her national origin. The guidelines, in effect, presume that English-only rules discriminate and impose a heavy burden on employers to justify such measures by business necessity. Federal courts generally agree that employees have the right to challenge administratively and in court the validity of English-only policies under Title VII. The split occurs on where the burden of proof lies. A majority of courts, following Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981) and Garcia v. Spun Steak Co., 998 F.2d 140 (9th Cir. 1993), reject the EEOC guidelines by placing the burden of proof on the employee. Title VII plaintiffs may challenge English-only rules under both the disparate treatmenttheory, requiring actual discriminatory intent, and the disparate impacttheory, where facially neutral practices may violate the law if they have a disproportionately negative impact on a protected minority group. The disparate impact theory often poses the greater threat for the unwary employer, even with the best of intentions. The U.S. Supreme Court has established a three-part test with shifting burdens for evaluating the legality of employment practices under the disparate impact test: (1) The Title VII plaintiff must make a prima facie showing of disparate impact by proving that the challenged practice adversely affects a protected class; (2) Once the employee makes such a showing, the employer must then prove the challenged practice is job-related for the position in question and consistent with business necessity; and (3) Should the employer meet that burden, the plaintiff can still prevail by demonstrating there is another employment practice that would serve the employer’s interests with less discriminatory impact. The EEOC guidelines give the employee plaintiff a significant advantage in the English-only area by effectively eliminating the first of those three requirements. The guidelines simply presume that an English-only rule will have a disparate impact on those employees for whom English is not the primary language. The employer is then left to provide a legitimate business reason for the rules. The EEOC also distinguishes between English-only rules that apply at all times and those that apply at limited times. Where the restrictions apply at all times, including breaks and lunch hours, the guidelines presume that they violate Title VII and subject them to close scrutiny. Even where the rules apply during certain work times, the burden is still with the employer to show that business necessity justifies the rule. The guidelines also require that the employer spell out the rule in advance and explain the penalties for violating the rule. A majority of federal courts, citing Gloorand Spun Steak, reject the EEOC’s modification of the above three-part test. But there are some federal decisions that defer to the guidelines and enforce the presumption of discrimination. See, e.g., EEOC v. Premier Operator Servs., 75 F.Supp.2d 550 (N.D. Tex. 1999); EEOC v. Synchro-Start Products, 29 F.Supp.2d 911 (N.D. Ill. 1999). Premier Operating Servs.distinguished Gloorby pointing out that the “English-only” policy in Gloordid not apply at all times. At the very least, then, employers should keep the EEOC guidelines in mind when formulating rules. They can lessen potential liability by adopting written policies, restricting them to certain times and places and notifying employees in advance of those policies. THE RESPONSE OF THE STATES Employers must also look to the applicable state laws against discrimination in weighing the pros and cons of adopting English-only rules. California looms as an especially difficult state in which to enforce such restrictions, having on September 14 enacted a law which imposes requirements on employers at least as strict as the EEOC guidelines. The measure adds a new Section 12951 to the state Government Code and codifies existing administrative regulations adopted by the Department of Fair Employment and Housing. The new law makes it an unlawful employment practice “to adopt or enforce a policy that limits or prohibits the use of any language in any work place” unless the language restriction is justified by business necessity and the employer has notified its employees of the circumstances and time when the language restriction must be observed. The law defines “business necessity” 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 service, and there is no alternative to the language restriction that would accomplish the business purpose equally well with a less discriminatory impact.” This definition is arguably broader than the standard that applies under the EEOC guidelines. The California law, at least on its face, applies equally to both bilingual employees, i.e., those fluent in both English and their native language, and employees who have trouble speaking English. Some courts, however, have taken a different view. A New Jersey appellate court recently held that the state’s ban on national origin discrimination did not prevent a medical employer from terminating an employee fluent in both English and Spanish, after she violated a rule allowing Spanish to be spoken only when assisting Spanish-speaking patients. Rosario v. Cacace, 337 N.J. Super. 578 (App. Div. 2001). The court in Rosario, citing Gloorand Spun Steak, noted that the employer’s rule created no disparate impact because “the affected employee can readily observe [it] and nonobservance is a matter of individual preference.” HOW TO IMPLEMENT AN ‘ENGLISH-ONLY’ POLICY Before adopting English-only rules, an employer should consider the following: Need– Review whether an English-only rule is really necessary. Perhaps the same objectives can be achieved by a less restrictive means. Written Policy– A policy is a good idea, even where an employer decides not to adopt an English-only rule, if only because it discourages supervisors from informally imposing an English-only requirement and it puts everyone on notice about the policy. If there are English only requirements, the policy should spell out when it applies, to whom it applies, and the penalty for violations. “Business Necessity”– If such a rule is necessary, the employer should ensure that a legitimate and documented business reason exists. Examples of business necessity include workplace safety and the ability to communicate with customers, supervisors and other employees. Document as many legitimate business reasons as will fit the actual circumstances. Given the many legal issues that might arise in various jurisdictions, it is prudent to consult an attorney familiar with this area of the law. Limit the Policy’s Scope– An English-only rule should be narrowly fashioned. It should not prevent employees from speaking other languages during lunch, rest breaks or other non-working times, without a compelling business need. The policy should cover all employees and languages, not just one particular group. Enforce the Policy Fairly and Consistently– The EEOC guidelines state that English-only rules may create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Employers should be careful not to overreact to relatively minor violations of the policy, such as an accidental switching in mid-conversation by a bilingual employee from English to another language. Judson L. Hand is an Associate in the Labor and Employment Law Department in the Newark, N.J. office of Proskauer Rose. Wanda Ellert, a senior counsel at the firm, assisted in the preparation of this article. Author’s Note: This article is designed to give general information on legal developments on the topic discussed. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subject covered, provide legal advice or render a legal opinion.

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