As the influx of immigrants to America?s melting pot continues unabated, a new phenomenon ? an increasingly outspoken loyalty to cultural heritage among ethnic minorities ? is intensifying the impact of the growing diversity of our workplaces. At the same time, the prohibitions against discrimination in employment on the basis of national origin and race, set forth in Title VII of the federal Civil Rights Act of 1964 and its state and local counterparts, are being broadened by judicial decisions to encompass ? beyond place of birth ? such cultural characteristics as language, dress, religion, shared history, traditions, values, and symbols. Employers are caught in the middle between these trends and foremost among the problems they face is the communication problems posed by alien tongues and heavy accents. The rush by many employers toward the institution of ?English-only? rules and other language or cultural restrictions risks offending minority employees and the laws that protect them. This article sets forth some of the significant employment discrimination principles that have shaped the current debate over such language prohibitions and gives some practical guidelines for reconciling their legitimate goal of maintaining orderly and efficient business communications with the legal obligation to refrain from discrimination against an ethnically diverse workforce.
National Origin Defined
Critical to any discussion of national origin discrimination is a simple definition of the term. The Equal Employment Opportunity Commission (EEOC) has attempted to capture its essence in regulations that describe national origin discrimination as the denial of equal employment opportunity based upon an ?individual?s, or his or her ancestor?s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.? By using the term ?place of origin? the Commission apparently did not intend to limit the statute?s scope to only those employees who can identify themselves with political subdivisions. Moreover, the references to the characteristics of the national origin group seem to intend to refer to ethnic identification generally, rather than geographic based distinctions. The courts have been most willing to extend Title VII?s protection against national origin discrimination to employees who can identify themselves in relation to an existing political subdivision; protection has been found even where the claimant does not affiliate himself with a recognized country, but where a distinct cultural or ethnic identity is claimed. For example, Hispanic origin has been protected under various descriptions ? Chicano, Spanish-surnamed persons, and Hispanics. Gypsies are protected under the national origin trait, despite the absence of any country or even region of origin. Similarly, Arcadians or Cajuns have no common nation of origin but have likewise been protected. The claims of a Palestinian were also deemed entitled to protection, despite the non- existence of a State of Palestine. One who is Slavic has been held entitled to protection on the basis of national origin, despite the fact that the term refers to a region of the globe and not a unique political country.
Claims based on historical national entities that no longer exist also have been successful. Accordingly, Serbians and Ukrainians were protected under the national origin language of Title VII prior to the breakup of Yugoslavia and the Soviet Union. Thus, in deciding coverage questions, the cautious road for employers is to regard any ethnically diverse group of people, whether because of language, culture, religion or country of origin, as deserving of protected status under the national origin prong of Title VII.
Application of Section 1981
So far what has been discussed is protections provided under Title VII of the 1964 Civil Rights Act. The Supreme Court has held that another statute, the 1866 Civil Rights Act (typically referred to as 1981), also provides protection against discrimination to ?identifiable classes of persons ... [based on] their ancestry or ethnic characteristics.? Thus, an employer?s language based rules may be challenged under both Title VII and Section 1981. Title VII?s statutory limits on the amount of compensatory and punitive damages that may be awarded to a victim of discrimination are absent from 1981. Complainants who can establish coverage by 1981 stand to recover much more monetary compensation than those who claim national origin discrimination under Title VII alone.
English-Only Rules and Accent Discrimination
Perhaps most central to one?s ethnic or national origin identity is the use of language. Seamless verbal communication is vital to a synthesized workplace, but may be impossible where different cultures speak in different languages or with different accents. Employers have thus turned to language-based prohibitions or rules, restricting certain forms of speech to facilitate communication. Employees have often challenged these rules as discriminatory in that they infringe on the right to speak one?s native or familiar tongue.
Given the increased popularity of English-only rules, the EEOC has promulgated regulations setting out when such a rule is discriminatory. The regulations state that the enforcement of an English-only rule at all times in the workplace is burdensome and may create an ?atmosphere of inferiority, isolation and intimidation based on national origin.? The Commission therefore presumes that such rules violate Title VII, and closely scrutinizes them. However, the EEOC allows employers to establish rules requiring use of English during certain periods of time if the employer sets forth a business justification for the rule. The regulations make it clear that a ?speak English only? rule ? even an otherwise valid rule ? cannot be enforced against employees who were not put on notice of its existence or the consequences of violating it.
Where the job duties involved are closely interwoven with the use of language, the courts generally have given wide discretion to employers to set forth reasonable language rules. For instance, proficiency in English was deemed a legitimate qualification for a position as a police officer, sufficient to justify a no- Spanish rule. Although the rule even prevented Spanish from being spoken during after-class breaks, it was upheld as necessary to facilitate effective communications among officers.
The Federal Court of Appeals in the Ninth Circuit reached a similar conclusion in Jurado v. Eleven- Fifty Corp., where a radio disc jockey was repeatedly warned not to speak Spanish while on-air. The radio station claimed the ?street? Spanish words and phrases confused listeners as to the station?s format. Jurado?s insistence on a continued bilingual presentation led to his discharge by management. The court had little trouble concluding that management?s ?English-only while on-air rule? did not violate Title VII, since the ?mere fact that a station adopts a format designed to entice a target ethnic audience does not tend to show racial animus in employment.? The rule was reasonably limited to on-air time and was within the station?s broadcasting latitude.
While communications skills sometimes have been deemed relevant for a city clerk position dealing with the public, an English-only rule was rejected by the Ninth Circuit Court of Appeals in Gutierrez v. Municipal Court, where the complaining employee was a bilingual deputy court clerk whose job was to translate for the non-English speaking public. The employer promulgated a rule prohibiting all languages other than English in all conversations conducted during work time other than while working as a translator. The court adopted the EEOC rule and held that the prohibition on intra-employee communications in Spanish was not in any way connected to the sale or distribution of the employer?s services, was not needed to control a ?Tower of Babel,? and was not legitimately based on the need to control increased hostility between Hispanics and non-Spanish speaking employees. Further, the rule could not be supported by simply claiming that the United States is an English speaking country (especially where the employer?s own services provide translation from other languages), or that the rule was needed to allow non-Spanish speaking supervisors to effect more control over the dissemination of information to the public. In short, the rule was excessive and was not justified by business necessity. A much more limited English-only rule was at stake in the Fifth Circuit Court of Appeals decision in Garcia v. Gloor. Garcia was a retail sales employee who was dismissed for violating a rule that prohibited speaking anything but English to English speaking customers or to other employees in public areas. The employees were permitted to speak Spanish to Spanish speaking customers, outside of public areas or during break times. The court accepted the business justification of facilitating communications with English speaking customers, and found the rule reasonably tailored to meet that need.
Language restrictions also have been upheld where the use of English-only is meant to harmonize employee relations within the working unit. In one case a Filipino hospital nurse was demoted for using the language of Tagalog, the native language of the Philippines. The hospital had imposed a rule prohibiting Filipino nurses from speaking Tagalog during the evening shift, since the use of Tagalog created disunity among the nurses and interfered with the nurses? ability to communicate. It was the ?breakdown of cohesion? that gave rise to the rule, and since it was not ?motivated by ethnic animosity? there was no disparate treatment. The rule thus served the legitimate purpose of fostering cooperative working relationships among the employees. It could not be attacked under a disparate impact theory, since it only prohibited the use of Tagalog, and permitted the use of other non-English languages.
Recently the Ninth Circuit Court of Appeals refused to find an English-only rule discriminatory where the employees were bilingual and there was no evidence of hostility toward Hispanic workers. The rule did not significantly impact on working conditions, and caused only a mere inconvenience to those employees who preferred to speak Spanish. In reaching its conclusion, the court rejected the EEOC presumption that such an English-only rule is unlawful holding that employees do not have an inherent right to ?express their cultural heritage at the workplace.?
Finally, safety has also been advanced and upheld as a legitimate business reason for an English-only rule.
Any business that imposes or plans to impose language rules over their workforce should carefully review its policy in light of the foregoing principles.
- First, employers should decide whether language skills are an integral component of the position being restricted, such as in a public contact job. If language is merely superfluous or peripheral to the essential functions of the position then the restrictions may be unnecessary.
- Second, if language skills are not integral to the job, employers should precisely define any other reasons why the policy is needed. Does the language rule help to market the business or is it necessary to adequately service customers? Mere references to the creation of a more efficient workplace may not be sufficient. Why is it more efficient to place restrictions on the language used by the employee?
- Third, employers must narrowly tailor any restriction to fit its justification. A rule that restricts the use of language during work breaks or rigidly prohibits some foreign languages while ignoring others may be inappropriate.
- Finally, employers must put all employees on clear and specific notice of its language rules and the penalties for violation.
Conclusion
Given the increased diversity of America?s workplace, protection for the culturally eclectic workforce is a vitally important topic for employers. While it may be difficult to assimilate culturally diverse employees without significant rules governing the appropriate use of language, any such restrictions should be sufficiently justified in purpose and reasonable in scope to survive a charge of discrimination.
The foregoing serves as no more than a brief introduction to the complicated issues of language based rules imposed upon employees of diverse national origins. As always, competent legal representation is the best way to ensure compliance with the complex challenges employers face in integrating a diverse workforce.