Should English Rule?

You thought you were doing the right thing. In the interest of diversity, you sent out cleaning teams with both English-only and bilingual workers. But instead of fostering a more inclusive environment, tension in the work force has increased. The English speakers claim their co-workers are deriding them in Spanish. Should you enforce an English-only policy for those crews?

Or what about the customers who complain that they can’t talk to the cleaning staff because the bilingual employees don’t understand English well enough? Do you swap those workers for native English speakers?

More than 31 million people in the United States speak languages other than English, and that has lead many building service contractors to employ an increasing percentage of bilingual workers. That trend now leaves BSCs to face more difficult cultural situations without a clear understanding of their legality. The greatest threat is that a misstep could trigger a potential unlawful discrimination lawsuit under Title VII of the 1964 Civil Rights Act.

Although employers may adopt English-only rules innocently and without any discriminatory intent, more bilingual employees are taking their employers to court, claiming such requirements violate federal law prohibiting employment discrimination. Many workers, and many lawyers, interpret the concept of national origin to encompass an individual’s language rights and claim that English-only rules are little more than thinly veiled acts of unlawful discrimination.

A Tower of Babel?
Although the U.S. Congress has never defined the term “national origin,” the Equal Employment Opportunity Commission (EEOC) has issued guidelines restricting the use of English-only workplace rules. But they’re vague: EEOC guidelines only require that employers demonstrate a “business necessity” for implementing such restrictions.

Several courts have held that English-only rules do not violate Title VII and that these rules do not have a discriminatory impact on bilingual employees who can speak English. This conflict between the courts and the EEOC has only served to frustrate employers attempting to find the best method of ensuring communication amongst their workers, and between workers and customers.

A Texas case addressing a workplace English-only rule, Saucedo v. Brother’s Well Service Inc., involved a family-owned business with a work force of 50 percent Mexican-American employees, including the plaintiff, John Saucedo, who was terminated for speaking Spanish with a co-worker. Saucedo sued his employer, and a federal court held that Saucedo’s employer had discriminatorily and unlawfully discharged him.

The following year, another court provided an opposite ruling. In Garcia v. Gloor, the plaintiff, Hector Garcia, a native-born American of Mexican descent, worked as a salesman at Gloor Lumber & Supply. The company’s owner had implemented a rule that prohibited employees from speaking Spanish, unless it was necessary for communicating with Spanish-speaking customers. When Garcia addressed a fellow salesman in Spanish, he was fired. The court ruled against the plaintiff and held that federal law did not grant an employee the right to speak a particular language at work.

Contrary to that decision, another court in Gutierrez v. Municipal Court held that a rule prohibiting employees from speaking any language other than English, except when necessary to translate for the non-English public, constituted national original discrimination in violation of Title VII.

Not long after the Gutierrez decision, that same federal court did an about-face on its position regarding English-only rules. In that case, Garcia v. Spun Steak Co., the court held that the employees had no right to speak Spanish in the workplace.

Two years later that same court contradicted itself again. In Yniguez v. Arizonans for Official English, the court was asked to decide the constitutionality of an Arizona state constitutional amendment providing English as the official language of the state and that all government employees must “act” in English. There the court struck down the amendment, reasoning that it violated free speech rights.

A fork in the road
Given the conflicting rules and court decisions, where does this leave the average BSC? These laws are evolving; contractors should consult an attorney to make sure any actions or policies attempt to follow existing laws.

For instance, courts and the EEOC often have recognized safety justifications as legitimate business-related reasons. When safety requires all communications in English, such as in hazardous work environments or emergency situations, the courts often have found English-only rules permissible.

However, courts may restrict the scope of such rules by requiring that employees be accustomed to using English on the job, or that employees be allowed to speak in their own languages during downtime or on breaks. Even in hazardous or emergency situations, courts could determine that an English-only rule might increase the danger, because some employees may react faster in another language.

Since the typical work day does not always present emergencies, contractors may be confused as to how the law applies to them. Take, for instance, this Georgia facility manager’s recent dilemma: He noticed a window cleaning crew working at his building were not using all U.S. Occupational Safety and Health Administration requirements for worker safety while on a scaffolding. Concerned for their safety, he tried to talk to the workers, but none of the workers spoke English enough to understand his warnings and his concerns. The facility manager had to call the contractor’s offices and request a supervisor with better English skills come to the site.

In this case, the window contractor could have imposed an English-only rule because cleaning windows on scaffoldings is an essential job function that is inherently dangerous. Courts have upheld such rules in work environments that could create such dangers and that require continuous verbal coordination between employees.

If commercial cleaning operations can indicate enough of a safety concern for their general office cleaning staff, due to the chemicals and heavy machinery involved, they could have enough cause to impose English-only rules. In fact, due to worker safety requirements, employers are allowed by law to hire employees at an English language fluency level sufficient to perform the job satisfactorily.

Yet, BSCs should understand that if an employer hires workers whose knowledge of English is so poor that they can’t understand training and safety instructions, the burden is on the employer to adequately train these people. So, without an English-only requirement in this case, the contractor could be liable if workers with poor English skills are harmed or create unsafe conditions due to their inability to understand their training, even if the contractor provided them with the proper information. BSCs must create ways to gauge how well their workers understand the training materials or they could fall short of safety training requirements.

Making a case
According to the EEOC, any English-only rule that prohibits employees from speaking their native language at all times does violate Title VII. Under the EEOC’s guidelines, such a rule is a burdensome condition of employment.

If a cleaning contractor believes that an English-only rule is critical for business purposes, that company must advise employees when English is required, and spell out the consequences for violating the rule.

BSCs also must be prepared to justify any English-only rule as a sound business necessity. The court in Garcia v. Gloor justified an employer’s English-only rule because English-speaking customers object to communications between employees which they could not understand. In that case, the court also found that the rule would help reduce inter-office tensions and the ability for certain workers to alienate others. However, several courts have ruled that “business necessity” means more than “business purpose.” In such cases, the courts have looked for a “compelling” justification.

For instance, contractors whose customers request English-only speakers in their facilities must weigh the necessity of a common language with the potential for acting on a discriminatory request. Courts have upheld limited English-only rules where employees had legitimate, non-discriminatory reasons for the rules. But in cases like this, where English-only speaking workers are assigned to a particular building based on their language barriers or benefits, some might argue that such a practice stems from anti-immigration sentiment. To date, there have not been reported cases on this specific issue, but employers should be careful not to make certain English-only assignments more desirable than those given to workers who aren’t able to speak English as well.

There also is the question of whether contract cleaners can impose English-only rules if their workers do not have to interact with English-speaking customers to complete contracted services. Courts have upheld employers’ desires to ensure that English-only customers deal with English-speaking employees, but have not clearly defined cases where the interaction isn’t necessarily vital to business. Contractors who find themselves in such a situation should seek legal advice before changing any work arrangements.

Perhaps one of the reasons English-only rules have received such scrutiny in the U.S. courts is that most people take language for granted. In a country of immigrants, the conflict between an employer’s desire to build harmony and synergy in the workplace, and the courts’ conflicting decisions over the enforcement of English-only rules has put employers in an unenviable position. But BSCs who show a concerted effort to follow the law and take their employees’ welfare into consideration have a better chance of avoiding lawsuits.

Sara Harper is an online entrepreneur and business author. Betty Ann Olmsted J.D. is an attorney and university-level business instructor, in Kansas.