Legal

EEOC Cracks Down on Employer’s “English Only” Rule

By Jon Hyman

Jun. 10, 2014

The Equal Employment Opportunity Commission yesterday announced that it has filed a lawsuit against a Wisconsin metal and plastic products manufacturer, claiming that it fired a group of foreign employees because of their national origin. According to the lawsuit, each of the 10 fired employees received overall satisfactory ratings on their annual performance evaluations, but received mark-downs for their English skills, which the EEOC alleges were not needed to perform their jobs.

According to EEOC Chicago Regional Attorney John C. Hendrickson:

Our experience at the EEOC has been that so-called “English only” rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.

I initially addressed this issue almost seven(!) years ago in a post entitled, English-only workplaces spark lawsuits. 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 Title VII’s prohibition against national origin discrimination. You can read my original post to learn the ins and outs of this interesting issue that has caught the EEOC’s attention.

In this case, the EEOC alleges that the employer penalized the employees for English fluency in non-essential functions. If you intend to enforce an English-only rule, make sure you can justify the nexus between English fluency and job performance. For example, would safety or efficiency be impacted if employees cannot communicate in English? Does the job require interaction with non-employees, such as vendors or customers? If you can demonstrate a nexus between English proficiency and essential job performance, your English-only policy will have a much greater chance of surviving EEOC scrutiny.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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