March 13, 2014 Articles

Are English-Only Policies in the Workplace Discriminatory of National Origin?

The EEOC has taken the position that such policies have the tendency to discriminate on the basis of national origin, violating Title VII.

By David E. Gevertz and Ana C. Dowell – March 13, 2014

In recent decades, this country has experienced a dramatic change in the American workforce. The Equal Employment Opportunity Commission (EEOC) has reported that, in the year 2000, about 45 million Americans, roughly 17.5 percent of the population, spoke a language other than English. Of these 45 million, about 10.3 million spoke little to no English. As result of this increase in linguistic diversity, a large number of employers began implementing "English-only" policies, which restrict or prohibit employee communications in languages other than English. These policies can range from requiring employees to speak only English when performing certain job duties to requiring employees to speak only English at all times.

By their very nature, English-only policies are, and continue to be, controversial. Some have criticized English-only policies as being motivated by xenophobic sentiments and targeted to discriminate against employees with foreign backgrounds. Between 1996 and 2000, the EEOC reported that the number of charges filed relating to English-only policies substantially increased from 91 to 443 charges.

Although English-only policies are often perceived to be per se discriminatory, Title VII of the 1964 Civil Rights Act does not expressly prohibit discrimination on the basis of native language. Nevertheless, the EEOC has taken the position that such policies have the tendency to discriminate on the basis of national origin, thereby violating Title VII. The EEOC promulgated 29 C.F.R. § 1606.7, which effectively views English-only policies as presumptively discriminatory of national origin. However, some federal courts have rejected the EEOC's application of section 1606.7 in Title VII lawsuits involving English-only policies. In addition, a few states have passed their own laws regarding the use of English-only policies in the workplace. Therefore, employers who have, or are in the process of implementing, English-only policies, must ensure compliance not only with the EEOC and the courts, but also with applicable state law.

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