Over the past few decades, high levels of immigration have changed the demographics of the United States. This has resulted in a sizable portion of the population whose primary language is something other than English. According to the 2010 Census, 21 percent of the population, or 60.6 million people, spoke a language other than English at home.
In response to these changes, some employers began to implement English-only policies in the workplace. These policies generally came in two forms: 1) policies which forbade employees from speaking any language but English in the workplace; 2) policies which forbid languages other than English from being spoken at certain times. Are such policies legal?
As for the first policy, the answer is no in Illinois, and probably no in the rest of the country. The Illinois Human Rights Act (775 ILCS 5/2-102(A-5)) expressly forbids employers from implementing policies that prohibit a language from being spoken by an employee in communications that are unrelated to the employee’s job duties. So, any type of blanket prohibition on speaking a particular language in the workplace at any time would be illegal under this law.
Whether these policies are illegal under federal law is not quite as clear. The Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcing federal employment laws, believes that they are. It has passed a regulation (29 CFR § 1606.7(a)) stating that such policies are per se examples of discrimination based on national origin, and therefore violate Title VII of the Civil Rights Act of 1964.
Not many federal courts have ruled on this issue, and the few rulings that have been made do not clearly articulate whether the courts agree with the EEOC. Ultimately, there probably is not a good reason for employers to implement blanket prohibitions on speaking any language besides English in the workplace. Even if they are not per se illegal, they expose employers to potentially expensive lawsuits.
As for policies forbidding languages other than English from being spoken at certain times, both Illinois law and EEOC hold these policies to be legal as long as they are justified by a business necessity. Some examples that the EEOC has given of a business necessity include:
- For communications with customers, coworkers, 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;
- To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
EEOC regulations require employers to clearly articulate when an employee is prohibited from speaking a language other than English, and the consequences for violating this policy.
So, the takeaway for employers is that English-only policies should only be implemented if there is a clear business reason for them. Employers should not require employees to speak English during lunch, when they are at the water cooler, and any other time when they are not performing job duties.
For questions about English-only policies in the workplace, employers may want to contact an experienced attorney.
