Language Barriers

When Dolores Escorbor and Maria del Carmen Perdomo were caught having a conversation in Spanish while sorting clothes at a Salvation Army thrift store in Framingham, Mass., management got upset. The two employees were given an ultimatum: They had one year to learn English or they would lose their jobs.

A year later Escorbor and Perdomo still hadn't learned fluent English, and the Salvation Army fired them. The women filed a complaint with the EEOC, which in March 2007 sued the Salvation Army on their behalf, claiming their termination was a violation of national origin protection under Title VII.

English-only rules are not illegal when properly implemented, and it is uncommon for the EEOC to file these types of suits against employers. In fact, the commission received only 125 English-only complaints out of more than 75,000 discrimination claims in 2006. Nonetheless, with immigration issues a hot political topic, this case has garnered attention.

Republicans in both the House and Senate have introduced two separate bills attempting to clarify the law and help employers who want to enforce an English-only policy.

"'English-only in the workplace' is hot right now for the same reasons immigration has been a focal point in recent years," says Michael Sullivan, principal at Goldberg Kohn in Chicago. "Individual viewpoints are often diametrically opposed--and the issues become highly political."

Current Law
According to the EEOC, employers can legally implement English-only rules in the workplace under existing law.
"Generally, employers may require employees to speak English when they have a legitimate business reason for the requirement," says Christine Saah Nazer, spokeswoman for the EEOC. Nazer says the EEOC recognizes that employers may need to require employees to speak English to effectively communicate with customers, co-workers or supervisors who speak only English; to promote safety, especially in emergencies or other situations in which workers must speak a common language; and to promote efficiency in cooperative work assignments.

But even if a company institutes an English-only policy, the EEOC says it must allow employees to speak different languages when not performing work duties, such as during lunch hours and break times.

"We are most concerned with blanket English-only policies," Nazer says. Blanket policies require employees to speak English at all times while on company property, including lunch hours and break times. In the case against the Salvation Army, the EEOC found that the organization was instituting a blanket policy. Because Escorbor and Perdomo worked behind the scenes sorting clothes, there was no legitimate business reason to require them to speak English, and, as a result, the EEOC found that the organization was in violation of the discrimination law.

On the Hill
While the EEOC dukes it out with the Salvation Army in the courts, legislators are attempting to clarify the law in Congress. Prompted by the EEOC's suit, Sen. Lamar Alexander (R-Tenn.) introduced in December 2007 the Protecting English in the Workplace Act. If passed, the bill would amend Title VII to allow employers to require that employees speak English while "engaged in work." The bill further states that an employee will not be engaged in work during lunch or other designated breaks.

Also in December, Rep. Tom Price (R-Ga.) introduced the Common Sense English Act. This bill simply says it shall not be an unlawful employment practice to require employees to speak English while engaged in work. This legislation, however, stops short of defining what constitutes "engaged in work."

If these bills were to pass, the EEOC would lose the ability to prosecute cases against employers like the Salvation Army that attempt to implement blanket English-only policies.

"Employers wouldn't be under so much scrutiny," says Ann Mennell, partner at Foley & Lardner in Milwaukee. "As long as they just follow what the law says, these laws would be easier to comply with than the EEOC's current standards."

But some experts say that in today's political climate, these bills aren't likely to see the light of day. "Neither of these bills stand a chance of mustering the Democratic support they need to pass," says Salvatore Gangemi, founding partner at Gangemi Law Firm in New York.

Practical Application
Whether these bills pass or fall flat, the EEOC's case against the Salvation Army has called significant attention to the issue. Experts believe now is a good time for employers looking to implement English-only policies or those with policies already in place to institute best practices to ensure that everyone understands the rules.

First, when setting up an English-only policy, don't assume a cookie-cutter approach. Different circumstances require different rules. "Use common sense," says Greg Hare, partner at Ogletree Deakins in Atlanta. "An employer should never be overzealous and too rigid."

Make sure the policy is in writing and communicate it to all employees--both native and non-native English speakers. "As with any workplace situation, communication is the hallmark of success from a management standpoint," Hare says.Hare suggests employers set up manager-led meetings to educate employees about the policy and hand out printed material. "Policies tend to have a greater impact when they're communicated from the top," he says. Furthermore, employers have a stronger defense against discrimination claims when they have a written policy and provide it to employees in advance.

Employees can also implement cultural sensitivity training programs for supervisors--especially those who work closely with non-native English speakers. "Train them to understand why non-native speakers would feel threatened by such a rule," Sullivan says.

Providing non-native English-speaking employees the opportunity to learn the language is also a good idea. "Offer English as a Second Language classes to these employees," says Sheryl Willert, partner at Williams Kastner in Seattle. "This isn't required, but it's a good practice, and there are many progressive employers already doing it."

Finally, experts stress that any English-only policy should be applied uniformly. "Anyone who creates a rule for isolated incidents or for specific employees will appear to be in violation of the law," Sullivan says.

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