Friday, June 13, 2014

English Por Favor

I have been off on technology tangents, now I am getting back to safety....

Can You Require Employees to Speak Only English on the Job?

Sources: USA Today EEOC, think HR blog,

In today’s increasingly diverse workforce, it’s not at all unusual for a company to have employees whose native tongue is a language other than English. In some workplaces, this has given rise to problems. Consider these situations:

  • Two cashiers chat with each other in Spanish while dealing with English-speaking customers. A customer later complains about this "rude behavior."
  •  Three members of a work team converse in Portuguese. A fourth member, who doesn’t speak Portuguese, tells a supervisor she thinks the other three are making fun of her.
  •  An employee, seeing a falling object, yells "Watch out!" in Italian to co-workers, some of whom don’t understand that language.

The first scenario might be considered poor customer service. The second could lead to morale problems or hostility among employees, or otherwise interfere with their ability to work together efficiently. And the third is a safety concern.

I am going to evaluate the above 3 scenarios, but first let's take a look at the legality of  English-only policies. There have been numerous lawsuits in the wake of these policies.

USA Today reports that Whole Foods has suspended two employees for allegedly speaking Spanish to each other on the job. For its part, Whole Foods denies the claim, and insists that it suspended the employees for "rude and disrespectful behavior."

English-only rules are legal as long as the employer can show a business need for the policy (for example, inter-employee communication or workplace safety). An overly restrictive rule (for example, prohibiting non-English-speaking in non-work areas such as the lunchroom), however, might violate EEOC's Title VII’s prohibition against national origin discrimination.

According to the USA Today story, Whole Foods’s "policy states that all English speaking team members must speak English to customers and other team members while on the clock" and that "team members are free to speak any language they would like during their breaks, meal periods, and before and after work." That policy is perfectly legal under Title VII, and should raise no issues for the employer.

What the EEOC Says:

EEOC Regulation 29 C.F.R. § 1606.7(a) provides that a rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. Such a rule is presumed to violate Title VII. Therefore, a speak-English-only rule that applies to casual conversations between employees on break or not performing a job duty would be unlawful.

A workplace English-only rule that is applied only at certain times may be adopted only under very limited circumstances that are justified by business necessity. 29 C.F.R. § 1606.7(b) Such a rule must be narrowly tailored to address the business necessity. Situations in which business necessity would justify an English-only rule include:
  • For communications with customers, coworkers, or supervisors who only speak English.
  • In emergencies or other situations in which employees must speak a common language to promote safety. 
    • For example, a rule requiring employees to speak only English in the event of an emergency and when performing their work in specific areas of the workplace that might contain flammable chemicals or other potentially dangerous equipment is narrowly tailored to safety requirements and does not violate Title VII. 
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency.
    • For example, a rule requiring investigators (some of whom speak only English) to speak only English when working as a team to compile a report or prepare a case for litigation is narrowly tailored to promote business efficiency and therefore does not violate Title VII.
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.
    • For example, a rule requiring employees to speak only English with English-speaking co-workers and customers when a supervisor is present to monitor their work performance would be narrowly tailored to promote efficiency of business operations. As long as the rule does not apply to casual conversations between employees when they are not performing job duties, it would not violate Title VII.
If an employer with a business necessity adopts an English-only rule to be applied at certain times, the employer must inform its affected employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. 29 C.F.R. § 1606.7(c).

As with all workplace policies, an English-only rule must be adopted for nondiscriminatory reasons only.
  • For example, an English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin. Likewise, a policy prohibiting some, but not all, of the foreign languages spoken in a workplace, such as a no-Spanish rule, would be unlawful.
The American Bar Association has an excellent analysis of English-only rules (in .pdf format) here:

Some History of English-only:

The debate about English-only initiatives has raged in one form or another for much of this country's history.  In America's early days, multiple languages often co-existed. The Continental Congress printed many documents, including the Articles of Confederation, in German and English.  An 1837 Pennsylvania law required school instruction in both German and English.  California was officially bilingual for its first 30 years, and printed its first state constitutional proceedings in both Spanish and English.

During the 1870s, however, restrictive language legislation became prevalent.  In the South, native-born, English-speaking African American men had to pass a literacy requirement in order to vote.  An Anti-Chinese Party led California's second constitutional convention to ratify the state's first English-only provisions.   During the 1920s, many Midwestern states passed legislation that barred schools from teaching German as a result of anti-German sentiment lingering from WWI. 

  The courts and eventually the United States Congress stepped in and reversed this pattern of language restriction.  In 1923 the U.S. Supreme Court nullified these restrictive laws in the case of Meyer v.  Nebraska.  The Court wrote, 
"The protection of the Constitution extends to all; to those who speak other languages as well as those born with English on the tongue." 
The Supreme Court, in Lau v. Nichols, ruled that instruction solely in English deprives students of an understanding of the curriculum and of an equal opportunity in education.  In 1968, Congress, looking for new ways to educate minority youth, enacted the Bilingual Education Act.

The debate has been renewed at 9th and Passyunk in South Philadelphia. At Geno's "world famous" cheese steaks the demand for "Wiz wit" (i.e., cheese wiz and onions) remains high even though the owner is requesting that customers order their sandwiches in English. A sign at the order window reads: "This is America.  Please Speak English."

Apparently no one has been denied a steak at Genos's for ordering in something other than English, despite several attempts by local radio stations. 

Two cashiers chat with each other in Spanish while dealing with English-speaking customers. A customer later complains about this "rude behavior."

Speaking English only would constitute a business necessity for communications with customers, coworkers, or supervisors who only speak English.

An employee, seeing a falling object, yells "Watch out!" in Italian to co-workers, some of whom don’t understand that language. 

Safety concerns are another legitimate  use of an English-only rule, although it must be applied to specific situations.

The EEOC cites the following scenario as an appropriate use of an English-only rule to address safety concerns:

XYZ Petroleum Corp. operates an oil refinery and has a rule requiring all employees to speak only English during an emergency. The rule also requires that employees speak in English while performing job duties in laboratories and processing areas where there is the danger of fire or explosion. The rule does not apply to casual conversations between employees in the laboratory or processing areas when they are not performing a job duty. The English-only rule does not violate Title VII because it is narrowly tailored to safety requirements. (EEOC Compliance Manual, Section 13: National Origin Discrimination – Dec. 2, 2002).
According to this example, then, an employer would not run afoul of federal non-discrimination laws by requiring employees to speak only English while performing specific job functions, during emergency situations, or while working in particular areas of a facility that implicate workplace safety issues.

EEOC and OSHA: a Double Edged Sword

While EEOC allows English-only rules for concerns of safety OSHA’s training standards require employers to use particular documents, teaching methods or language to train employees. Instead, OSHA requires employees to present information in a manner that employees are capable of understanding.

A narrowly-tailored and appropriately used English-only policy is relevant to hiring decisions. If, for example, an employer has an English-only policy like XYZ Corporation’s in the above example, it would need to consider that policy in hiring employees to work in the laboratories and processing areas.

Candidates who speak no English would not be able to adhere to the policy and would therefore not be qualified for hire into a position that includes work in those areas. Similarly, even in the absence of an English-only policy, an employer does not violate federal anti-discrimination laws by rejecting a non- English speaking candidate whose inability to speak or understand English would materially affect his or her ability to perform job duties. 

If, for example, a candidate’s job duties would require forklift operation, and the candidate could not read or understand warning signs, operating manuals, or safety placards required for the safe operation of a forklift, the employer would have a good faith, non-discriminatory reason to reject that candidate.

Consider a production facility where forklifts are used. All employees need a certain proficiency in English for the forklift drivers to communicate their intentions. It would be almost impossible (and discriminatory under EEOC) to identify (label) non-English speaking employees to the forklift drivers. 

Under this scenario, it is reasonable to expect all production, maintenance, dock, yard, and warehouse employees (all the places where forklifts are present) to speak English. Office employees would be exempt as long as they do not have to speak to Englis only speaking supervisors or go in to areas where the forklifts operate.

Another way OSHA inspectors will evaluate an employer’s compliance with safety training standards is by determining how the employer communicates other workplace rules and policies to employees, particularly job instructions (i.e., other non-safety policies or procedures). If these other job instructions are given in Spanish, for example, OSHA will likely view English-only safety training as insufficient.

Other Federal Agencies:

Certainly, safety issues arise in some workplaces. The Federal Aviation Administration (FAA), for example, requires air traffic controllers to "be able to speak English clearly enough to be understood over radios, intercoms, and similar communications equipment."

The Nuclear Regulatory Commission (NRC) requires that "all employees profeciently read, write, and speak English... and English is the only language to be used."

U. S. Department of Transportation (DOT) regulations require commercial truck drivers "to be able to read and speak the English language sufficiently to" speak with the public, understand road signs, respond to "official inquiries," and keep records. The states are charged with enforcing these requirements.

A Federal Motor Carrier Safety Administration pamphlet outlines the kinds of things truckers should be able to say, in English, if they want to keep on driving:

Three members of a work team converse in Portuguese. A fourth member, who doesn’t speak Portuguese, tells a supervisor she thinks the other three are making fun of her.

I purposely saves this for last. This may seem like an inappropriate application of an English-only rule, but I beg to differ.

Workplace and school violence events have contributed to our increasing national conversation about "bullying."  Recently, National Public Radio quoted a Zogby poll in which more than a quarter of American workers reported that they have experienced abusive conduct at work. Sixty-four percent of respondents to a Monster Global Poll felt that they had been "bullied, either physically hurt, driven to tears, or had their work performance harmed."

As part of an anti-bullying policy, the requirement to speak English-only in the presence of  English-only speaking employees is reasonable. This also prevents the misinterpretation of threats.

Both practical and legal problems impede developing effective policies.  As an example, how do you define "bullying" and how do you distinguish this objectionable conduct from the sort of workplace banter and teasing that men often use to bond with one another?

Michael Akin, vice president of government affairs for the Society of Human Resource Management, pointed out that "it’s tough, if not impossible, to legislate against someone being a jerk."  However, employers may be able to develop an effective code of conduct and effective anti-bullying policy based upon requiring employees to use "good judgment" and to be a "professional."

Being that there is no legislation or OSHA Standard on anti-bullying policies, it is important to define the terms used in the policy. For example;

"Abusive conduct" means acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature and frequency of the conduct, including, but is not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.  It shall be considered an aggregating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard;
"Abusive work environment" means, an employee condition when an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects the employee to abusive conduct that causes physical harm, psychological harm, or both;

Here is another good paper titled: Safety, The Universal Language? Literacy and Language Challenges in the Workplace (in .pdf format).

Literacy as a Foreign Language

What special accommodation should an employer have for an employee who works in a safety-sensitive position who cannot read or write?

The employee is required to pass a hazard communication training, as well as be able to respond adequately to an emergency situation, including being able to read and follow safety instructions.

Assuming that this not a disability that causes the illiteracy but based upon lack of formal education, an employer is not required to accommodate the employee.  In safety-sensitive positions, even if a disability were the cause for inability to read or write, the Americans with Disabilities Act (ADA) does not override safety requirements in the workplace.

Again OSHA training requirements say: For example, if an employee is not literate, the employer does not satisfy OSHA training requirements merely by telling the employee to read training materials or safety programs. Likewise, if an employee does not speak, read or understand English, training must be provided in a language the employee understands.

OSHA has tasked each of its inspectors with the duty of determining whether the training provided by an employer satisfies the intent of the Standard (i.e., whether employees receiving the training actually understand the training). 

Discriminating on the Basis of an Employee’s National Origin

To me this is truly idiotic. There are people from every National Origin that can speak English, and there are people from every National Origin that can't speak English.

First, let me point out how the EEOC defines national origin discrimination:

National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). source:

It is important to note, that "National Origin" is NOT "Country of Origin." National Origin Discrimination is: not hiring anyone with black skin appearing to be of African decent, hiring people with "oriental" eyes and light skin, appearing to be of Chinese or Japanese decent, etc. (True) discrimination is wrong!

But what if you only have 5 workers of Latino decent and none of them can speak English? Is action against them discrimination? Do you to find at least one workers of Latino decent who does speak English to prove you are not discriminatory?

Based on this theory, I would argue that almost ALL US companies discriminate based on National Origin for not employing people of Aboriginal decent.

Samantha Harris: First Aboriginal Supermodel

Take a Test: Discrimination on National Origin

 Look at the picture above. This person is a (in)famous foreign national.  If your company had only white, Anglo, English only speaking employees, and he claimed you fired him for not speaking English, what National Origin would he claimed you discriminated against? (Answer below in fuchsia.)

Is Simply Speaking English Enough?

Is speaking English enough or do you need to proficiently speak English? That depends on the situation. From a safety perspective,  flight controller needs a better level of English than a warehouse worker.

What to Take Away from this...

You cannot ban employees from speaking a foreign language all the time.

"English-only" policies, prohibiting employees from speaking languages other than English at all times in the workplace, are presumed to be discriminating on the basis of an employee’s national origin.

You can have a policy that requires at certain times, an English-only in the workplace may be appropriate and non- discriminatory. The employer must establish that the rule is justified by a "business necessity," or essential to safety.

Proficient English-only can be an essential requirement of the job requirement for those specific situations. If a person does not meet essential job requirements, then they are not qualified.

Literacy should also be a job requirement when necessary for safety. Lack of formal education is NOT considered a disability under ADA or a protected class by EEOC when it is essential to the job function.

English-only cannot be broad based, it must apply to specific situations.

Answer from the Test Above:

The gentleman in the picture is Alberto Fujimori Fujimor (This name uses Spanish naming customs; the first or paternal family name is Fujimori and the second or maternal family name is Fujimori.) He served as President of Peru from 28 July 1990 to 17 November 2000. He is a Peruvian of Japanese descent (his parents were native Japanese). He fluently speaks Spanish and Japanese. Under EEOC he could claim discrimination against his national origin as:
  1.  A Peruvian (Latino) being he was born in Peru and speaks Spanish.
  2. Japanese (Asian) because he "looks Asian" and speaks Japanese.
  3. Nisei (a subculture of Japanese immigrants to Peru, and up to 4th generation children). Just as we consider Aboriginal a separate culture, yet a part of the Australian culture, Japanese immigrants to Peru are a separate culture, yet a part of thePeruvian culture.

Disclaimer: I am 3rd the generation descendant of immigrants. They also learned English (to work in the (dangerous) mines and survived (although a couple uncles were sans fingers). My grandmother use to yell at me in Polish when I misbehaved. My heritage has only enriched my life. I do not advocate discrimination. I do advocate legal, well written job descriptions. Coming from a nuclear background, I see the value of English-only in respect to safety. English-only may not be required in every situation. You must evaluate on a case-by-case basis to ensure legality of your requirements.

Thank you for reading!
Thank you for thinking!

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