07/ 21/ 2006
by Michael Mayton, NFIB Legal Foundation
You are on Jeopardy, and Alex Trebek gives the answer: "This is the official language of the United States."
You buzz in and blurt out, "What is English?"
Just like that, you lose the money.
Although English has long held supremacy in our national conscious, the truth is there is no official language of the United States. So you may be in for a rude awakening in the form of a civil-rights lawsuit if you have an English-only workplace. On the flip side, with a little understanding and some planning, you might find that an English-only policy is acceptable for your business. We will first explore when and how the courts have allowed English-only policies. Then, we will take a look at how you can put together a reasonable language policy for your workplace.
When English-only in the workplace is permitted
The courts have said there are essentially two permissible reasons for having an English-only policy in the workplace—safety or a legitimate business justification.
Safety
In the situation where the English-only policy is for safety reasons, the employer stands a better chance of defeating a discrimination claim. In dangerous jobs like security, deep-sea fishing or oil drilling, the connection between using one language and safety is easy to make, and the courts agree.
An English-only policy must dovetail with the safety concerns and not necessarily extend to all facets of the business. Thus, your security guards in the field may be required to use only English. But when those same guards are back at the office writing up reports, you probably could not insist that they speak only English to each other.
On the other hand, if you run a flower shop or copy center, the safety argument will probably look disingenuous, and the court will view an English-only policy as discrimination. You cannot use safety as a reason when no real safety concern exists in your workplace.
Legitimate business justification
The key here is "legitimate." For something to be a legitimate business justification, it has to affect your bottom line. An effort to avoid feelings of alienation for the non-bilingual employees is simply not a legitimate business justification. Legitimate has to go beyond touchy-feely and into the nuts and bolts of money-making. For example, customer complaints about a language other than English being spoken may create a legitimate business concern because driving away customers could put you in the red.
Just like safety concerns, a legitimate business reason for an English-only policy probably will not be legitimate at all times, in all areas. For instance, let's say your legitimate business justification is a need to actively supervise your employees. In this situation, an English-only policy may be the sole way you know whether an employee is on task. This might come up if you need to monitor the bilingual person making phone calls to suppliers and customers. The same legitimate business reason may not apply when your supervision is primarily monitoring physical product output, like stocking shelves or working on cars.
A reasonable plan
Any way you cut it, developing and implementing a policy can be a touchy subject. You would not be thinking about an English-only workplace if it was not already an issue in some respect. Remember to exercise caution and reason if you decide to implement such a policy. This should never be a punitive measure used against foreign language speaking employees.
Things to keep in mind:
- Have a meeting with ALL of your employees where you spell out the reasons behind your English-only policy.
- Make sure employees do not feel targeted because of their ability to speak another language. Ensure that the policy is not personal.
- Remind bilingual employees there are times when they can use another language like on break, out of the public eye or before and after work.
- If you meet resistance, make it clear you are doing this for the right reasons and not to discriminate or to upset a group of your employees.
