English-Only Rules at Work: Discrimination or Business Necessity?

News Updates
Labor advocates and business representatives at an Equal Employment Opportunity Commission (EEOC) hearing offered conflicting views on how anti-discrimination laws should be applied when workers are treated differently because of ethnicity, culture, accent or English proficiency.

At issue during the Nov. 13, 2013, hearing was “national origin discrimination,” which the EEOC defines differently from other forms of discrimination because it involves not only a person’s birthplace or ancestry but also cultural or linguistic characteristics.

The commission heard from several panelists as it prepares to update its compliance manual for national-origin discrimination, which it last revised in 2002. Labor advocates are pushing for revisions that reflect demographic changes over the past 11 years.

Those advocates told stories of workers who sued companies after they were denied better jobs because they lacked an “all-American” look. They spoke of people who were taunted at work for having a heavy accent or who were disciplined for toggling between English and their mother tongue in an involuntary linguistic phenomenon known as “code-switching.”

Laboni Hoq, litigation director at Los Angeles-based Asian Americans Advancing Justice, said she’s seen a steady rise in English-only polices in the workplace that “must be carefully scrutinized in light of their tendency to create hostile work environments.”

For instance, although the EEOC has acknowledged code-switching, Hoq has seen employer policies under which workers can be disciplined for the practice. The EEOC manual, she said, should “caution against even limited English-only policies when not justified by legitimate business necessity.”

Elizabeth Torphy-Donzella, an attorney who’s defended several companies against discrimination claims, contended that EEOC guidance on English-only requirements is “very difficult to navigate.”

“In many cases, speak-English rules are not used as a subterfuge to exclude anyone from the workplace; they’re used as a means to facilitate communication within the workplace,” said Torphy-Donzella, adding that employers would like the EEOC to provide more concrete examples of what does and doesn’t constitute discrimination when it comes to English-only requirements. “What is an appropriate balance between speaking English and not speaking English is not entirely clear. Frankly, my clients have a hard time understanding why people who are capable of speaking English who are bilingual should have the right to speak their own language in the workplace.”

She advised commissioners to consult case law on English-only requirements, which, she said, tends to support such restrictions because “customers may well have a right to expect English to be spoken when they’re present.”

Another issue that surfaced at the hearing was the practice of consigning people of similar national origins to backroom, out-of-sight jobs that offer little opportunity for public interaction, job advancement or higher pay.

“We increasingly see a pattern where Latino workers are segregated to back office, nonpublic-contact positions and prevented from moving to public-contact positions,” observed Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF). “For example, in the hotel industry it means that Latinos tend to be employed as maids, as maintenance people, but not at front desks. In restaurants they tend to be employed in kitchens, as dishwashers, as busers, but not as public-contact servers or as hosts. It is a pattern that is disturbing.”

A decade ago, MALDEF and the EEOC joined forces in a class action lawsuit against national clothing retailer Abercrombie & Fitch. The lawsuit charged that, in an effort to sell a “classic” or “all-American” look, Abercrombie refused to hire qualified minority applicants to work on the sales floor and discouraged applications from minorities. The suit also alleged that in the rare instances when such candidates were hired, they were given low-end, backroom jobs to keep them out of the public eye. In November 2004 the company agreed to a $40 million consent decree that required it to create policies and programs to promote diversity in its workforce and to prevent discrimination based on race or gender.

Michael Eastman, senior counsel for the Equal Employment Advisory Council, a trade association of 300 major employers, said the EEOC offers little guidance on how to avoid discrimination charges if workers of the same nationality wind up in low-end jobs through no fault of the employer’s.

“What if those statistical disparities occur because of employee choice?” he asked. “What if employees self-select themselves into particular shifts for various reasons? Let’s say you have a large group of Somali refugees who want to work on a particular shift, [and] it turns out they all live in the same housing complex 20 miles away and they have limited transportation options and want to share the commute. This is probably not a disparate-impact issue, but it may raise concerns for that employer. That is the kind of guidance we’d like to see a little bit more of.”

Lucille Rosas, lead coordinator for the EEOC’s Immigrant Worker Team, said that in 2010 one-third of those in the civilian workforce were minorities. Half of the nation’s minority population spoke a language other than English. Asians and Latin Americans accounted for the largest percentage of recent immigrants to the U.S. In 13 states—including Alabama, Arkansas, South Carolina and Tennessee—immigration populations grew to more than twice the national average.

Those demographic changes are reflected in national-origin discrimination charges filed with the EEOC: More than one in 10 complaints filed by private-sector employees between 2002 and 2012 alleged at least one basis of national-origin discrimination. During the same decade, Hispanics filed most of these charges—about 43 percent of them. Similar charges by Asians tripled.

Commissioner Jenny Yang said the EEOC revisions will be critical because employers like her husband’s parents—Korean immigrants who ran a Bronx grocery store—don’t “have the resources to hire outside counsel or HR professionals to advise them on these evolving areas of the law.”