The Oklahoman

EMPLOYEE LAWSUITS CHALLENGE EMPLOYERS’ ENGLISH-ONLY POLICIES

- PAULA BURKES, BUSINESS WRITER

Q: Earlier this month, two Latina workers filed a lawsuit against their former employers, accusing them of discrimina­tion by forcing them to follow an English-only policy and creating a hostile work environmen­t. What can you tell us about their allegation­s?

A: The plaintiffs sued their former employers, both of whom operated debt collection companies, in federal court in New Jersey, alleging that the companies discrimina­ted against them by forcing them to follow a “speak-English-only” policy and by creating a hostile work environmen­t that routinely included other employees making racist comments and mocking their Latina co-workers. They claim they were ridiculed and given warnings for speaking Spanish with Spanishspe­aking credit card holders on whose accounts they were trying to collect, and that they were told they would be terminated if they continued to speak Spanish, despite the fact that their ability to speak Spanish was one of the reasons they were hired. The employees also allege they were given warnings for speaking Spanish among themselves.

Q: Are employers legally prohibited from adopting and enforcing an English-only policy for their workplaces?

A: No. Employers may adopt and enforce an Englishonl­y policy as long as the policy was not put in place for the purpose of discrimina­ting against employees on the basis of their race or national origin, and the policies were adopted to further a legitimate business interest of the employer. It should be noted the U.S. Equal Employment Opportunit­y Commission (EEOC) strongly disfavors such policies and aggressive­ly will scrutinize English-only policies if they’re challenged.

Q: Has the EEOC issued any guidance on how it will analyze language restrictio­ns in the workplace?

A: Yes. In addition to earlier statements, the EEOC issued new guidance on national origin discrimina­tion late last year that included some discussion of language requiremen­ts in the workplace. According to the EEOC, an employer should only make an employment decision based on an individual’s accent if the person’s accent “interferes materially with job performanc­e.” To satisfy this standard, the EEOC states the employer must show that effectivel­y speaking English is required to perform the job duties, and that the individual’s accent materially interferes with his or her ability to communicat­e in spoken English. Similarly, the EEOC guidance states that a workplace requiremen­t for English fluency or proficienc­y is permissibl­e only where it’s required for the effective performanc­e of the specific position at issue.

Q: What standard has the EEOC offered for assessing English-only policies?

A: The EEOC guidance notes that an across-theboard requiremen­t that employees speak only English at all times will be presumed to violate federal anti-discrimina­tion laws. The guidance notes language-restrictiv­e policies may be applied “only to those specific employment situations for which they’re needed to promote safe and efficient job performanc­e or business operations.” Examples of situations in which business necessity would justify an English-only rule include the following: for communicat­ions with customers, co-workers, or supervisor­s who only speak English; in emergencie­s or other situations in which workers must speak a common language to promote safety; for cooperativ­e work assignment­s in which the English-only rule is needed to promote efficiency; and to enable a supervisor who only speaks English to monitor the performanc­e of an employee whose job duties require communicat­ion with co-workers or customers. Additional­ly, employers must provide adequate notice of restrictiv­e language policy, including effectivel­y communicat­ing the language policy to employees, as well as the consequenc­es for violating that rule.

 ??  ?? Nathan Whatley is a labor and employment attorney with McAfee & Taft.
Nathan Whatley is a labor and employment attorney with McAfee & Taft.

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