English-only policies and the melting pot (not)

Becoming aware of hot topics and trends is one benefit of the flood of employment-related news sources that deluges my inbox and RSS newsreader/news aggregator (I use Amphetadesk). By the time I’ve seen three or more stories on the same topic, I figure something’s going on that I better blog about.

So recently I noticed and collected a number of items in a short period of time about English-only policies, qualifying this as a hot-button topic.

First, the basics, from HR Matters E-Tips, a free e-newsletter published by Personnel Policy Service, Inc. (subscribe here):

Today’s growing immigrant population challenges employers nationwide to develop language and communications policies that effectively serve everyone’s needs. Some employers answer this new challenge by requiring all workers to speak English. They maintain that a common workplace language will facilitate good communications and promote safety and efficiency.

However, if applied too broadly, these rules may violate Title VII of the Civil Rights Act (Title VII). Further, some employee advocates maintain such rules single out non-English speaking workers for different treatment and force them to suppress their ethnic backgrounds. . . .

As a general rule, you may require employees to have a certain level of English proficiency and to speak in a manner that can be understood. The . . . EEOC and courts have tended to uphold English-only rules if they have a business-related purpose and do not apply to employee break periods.

Examples of business-related reasons include safety concerns (such as employees working on a production line or with hazardous chemicals) and customer and vendor communications. However, these rules, unless implemented properly, can lead to national origin discrimination prohibited under Title VII.

The EEOC takes the position that English-only rules may hinder employment opportunities since they can prevent some employees from speaking their strong>primary language, or the language they speak most comfortably. Therefore, when investigating national origin discrimination claims, the EEOC closely looks at English-only rules and will presume they violate Title VII. . . . [emphasis added to highlight different issues: primary language and national origin are not one and the same thing.

The EEOC is serious about enforcement, too. Recently, a nationwide chain of hair salons agreed to pay $240,000 in damages to six Hispanic hair stylists. The agreement settled the EEOC's claim that the employer discriminated against the employees by requiring them to speak only English at all times. (See EEOC v. Regis Corporation, No. 99 C 8270 (N.D. Ill.) . . . The salon company also agreed to rescind its policy unless it could establish a business necessity for it. Damage settlements in other cases brought by the EEOC have ranged from $55,000 to $2.4 million.

And, several courts have agreed with the EEOC's position. For example, in EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000), the court determined that a policy that required employees always to speak English, except when helping non-English speaking customers, violated Title VII. Similarly, in EEOC v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911 (N.D. Ill. 1999), the court upheld the EEOC's claim that a rule, requiring English spoken at all times during working hours, had a disparate impact on employees with national origins from non-English speaking countries.

Here are the EEOC regulations on English-only rules.

Christian Science Monitor staff writer Stacy A. Teicher (who often writes excellent workplace-related stories) wrote this recently: "Where English only falls short; Companies scramble to cope with multiple languages in the workplace" Worth reading in full, highlights follow:

As companies hire from an ever more diverse labor pool, they reap the benefits of bilingualism, but they're also running into a Babel of problems. Already, a fifth of the nation's population speaks something other than English as their primary language (in some areas, it's two-fifths). Many of them have limited English proficiency that can lead to costly mistakes or low productivity. . . . And if some workers use a foreign language to mock others, morale can break down.

There's no quick fix. Some employers go to the expense of offering classes to improve workers' English. Others turn the tables and train supervisors in languages most often spoken by workers in their industry. What seems the simplest answer to some - an English-only policy - is tricky because conflicts between court rulings and EEOC guidelines leave a lot of gray areas. . . .

In a case settled recently for $1.5 million, Hispanic housekeepers at a casino were not allowed to speak Spanish. A janitor reported that he had to hide in closets to train new employees who understood only Spanish.

For bilingual people, suppressing the tendency to talk in both languages can be difficult. They may know enough English to get by in their jobs, but to talk about family or other topics with friends, their primary language offers them a much richer vocabulary. . . .

Some insist those complexities shouldn't keep employers from creating a language policy if they think it's good for business. "I speak four languages ... but a business has the right to establish rules for whatever reason - it could be safety, it could be social ... so other [workers] won’t feel insulted,” says Mauro E. Mujica, chairman of U.S. English in Washington, D.C. His organization promotes official-English policies, which exist in 27 states and apply only to government, not the private sector. But workplace policies, he says, should not extend to people’s personal time.

The article also discusses a Navajo language case in which nearly 90 percent of a restaurant’s employees are Navajo, though the owners are not. Employees were asked to sign a language policy due to complaints from customers and staff about rude comments being made in Navajo. The policy said: “The owner of this business can speak and understand only English. While the owner is paying you as an employee, you are required to use English at all times … [except] when the customer cannot understand English. If you feel unable to comply with this requirement, you may find another job.”

The EEOC is on the warpath (pun intended) on this Navajo case, which was still in litigation when the story was written. The defense is being funded through another English language lobby, ProEnglish, quoted as saying: “The EEOC has been very aggressive in trying to basically demonize the [employers] for trying to maintain a good work environment for their employees - one that [avoided] problems with the use of very foul language and also sexual harassment in the Navajo language.”

Pro-English also contends “English- language policies do not equate with national-origin discrimination, because people can be from various countries and speak a range of languages that may or may not be native to that country.”

Federal court rulings on English-only cases have sent mixed signals to businesses. Some courts have used logic similar to the EEOC’s, but others have upheld businesses’ right to require English during work time.

The most notable of those latter cases is Garcia v. Spun Steak. In 1993, the Ninth Circuit Court of Appeals upheld an English-only policy that was created after employees complained that co-workers were making racist comments in Spanish.

Because the Spanish-speakers also knew how to speak English, the court said, the policy did not create a hostile work environment for them. It also said the Civil Rights Act does not give employees a right to cultural expression.

Many lawyers still advise businesses to follow EEOC guidelines by keeping policies as narrow as possible. In California [of course] state lawmakers backed that up in 2002 by requiring employers to have an overriding business purpose for any English-language policy, and to give workers advance notice.

The article concludes with examples of more positive, proactive approaches to language barriers.

It profiles a company actively involved in teaching employees English, while not prohibiting foreign tongues. This carrot-not-stick approach seems to be working: the company “has seen fewer mistakes and faster work,” and improved morale as the non-native speakers have “just come out of their shells.”

Another company with a large Hispanic workforce taught supervisors Spanish. While workers are on their way to learning English, the company “want[s] to meet them halfway.”

The third article on this subject was by Cindy Waxer in the January issue of Workforce Management magazine: “English-only Policies Can Translate into Problems for Employers”

Couple stats from her story, which largely parallels the Monitor story (I think hers came first):

Last year, the EEOC received 228 charges challenging English-only policies in the workplace. Ernest Haffner, an attorney adviser to the EEOC, expects that number to grow as more languages are spoken in the workplace. The U.S. Census Bureau reports that the number of Americans who speak English poorly or not at all has increased 65 percent since 1990 as immigration rates rise.

I have a strong view on this subject, colored both by my political beliefs and by my personal experience as an English-only child of multilingual immigrant parents. (These perspectives are perhaps inseparable.)

Start with the metaphor of America as the “melting pot.” It has been a historical strength of this nation that we have assimilated vast quantities of immigrants from around the world, who have brought with them native cultures, religions, traditions, skills, and languages, and have all become English-speaking Americans (at least within one or two generations), not “hyphenated Americans.” America has been vastly enriched by this in numerous ways, ranging from a stunning variety of ethnic food to cheap labor to great scientific, artistic, and intellectual contributions.

However, until the Hispanic revolution of the last few decades (largely involving illegal immigration), multilingualism was definitely not part of this phenomenon. To the contrary, English was a common thread holding us all together, and mastery of English a badge of honor for immigrants and their families.

My parents, native Hungarian speakers who came here as Holocaust-Iron Curtain refugees, felt teaching their children Hungarian was pointless. From birth, we learned only English, gradually becoming aware of — and embarrassed by — Mom and Dad’s thick accents. They could never shake the non-native sound of their speech, but as well-educated avid readers they acquired English vocabularies and writing skills that would put 90% of today’s native American college students to shame.

There was a darker side, however. Hungarian became their “secret language,” used when they wished to discuss something without being understood by their children or others. This was — and remains to this day — a source of great irritation to me. And the strong assimilationist American culture surrounding me as I grew up made me feel awkward and isolated when I was aware of the many ways in which my family was not a “normal” American family.

So I sympathize greatly both with those who wish for greater tolerance of the many differences between the current generation of immigrants and native-born Americans and with those who feel that non-English speaking is a destructive force that divides and creates suspicion and hostility.

My bottom line is that English is an essential feature of the “melting pot,” which in turn is an essential feature of a unified, if “diverse,” America. I therefore favor English-as-official-language laws and policies, and educational policies which accommodate multilingualism only minimally. (Kids should not be permanently relegated to an inferior status educationally because of a language issue; but if they’re forced to do so, young minds can catch up on a new language in relatively short order — and they should be forced to do so, not coddled).

Clearly, English-only workplace policies are not direct national origin discrimination (disparate treatment), because if foreign-born individuals are not capable of satisfying the requirements, it’s not because of their national origin, but because of their language abilities and efforts.

On the other hand, the EEOC is technically correct in applying a disparate impact analysis. In the aggregate, such policies clearly adversely impact non-native Americans. However, for policy reasons expressed above, I believe there should be relative leniency in finding business justification.

I would suggest that employers with significant numbers of English-challenged immigrant workers consider a mild, nonpunitive policy that strongly encourages assimilation and development of English skills, possibly including some assistance with the educational component. Something like this:

Our company recognizes that many of our foreign-born employees are still acquiring and improving their English-language skills. We believe these skills are very important for many reasons, including: safety; communication with coworkers, customers, and others; workforce unity and morale; and successful participation in the community outside the workplace. While employees may at times need to communicate in a native language, and employees will not be disciplined for speaking other languages where this does not interfere directly with vital business interests, we strongly encourage use of English whenever possible. We provide assistance of various kinds to employees seeking to improve their English skills. Such improvement, and increased use of English, is expected, and success in developing English skills, like success in all work-related skills and performance, will be taken into account for purposes of employment decisions, including pay increases and promotions.

Now I don’t know what the EEOC or a court would say about this policy, and would certainly research it further before implementation. Nonetheless, it is what I think employers should be permitted to say, and should say.

As a larger point, the cases in which employers got in trouble for English-only were those in which they dug their heels in with an absolute, punitive, and authoritarian approach. IMHO, employers who show more flexibility and use the carrot along with the stick tend to do better in this (see examples in Monitor story) as in many other areas of HR and employment law.

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