Guess What? Your Severance and Settlement Agreements are Probably UNLAWFUL
by Paul H. Derrick
In 34 years of practicing labor and employment law, I’ve heard hundreds of times: “None of our supervisors or managers speaks [INSERT ANY NON-ENGLISH LANGUAGE HERE]. Most of our employees don’t either, so we have a rule that makes everyone speak only English while at work. We’ve always had that rule.”
Sounds fairly reasonable, right? Wrong! English-only work rules are presumptively unlawful and have been for years.
The latest employer to find that out the hard way is an employment firm that, after some costly legal wrangling, agreed to pay $276,000 and submit to four years of compliance monitoring and employee training to resolve a lawsuit by the Equal Employment Opportunity Commission. Acting on charges filed by numerous employees, the EEOC sued the company for national origin discrimination and retaliation. The culprit? A “no Spanish in the workplace” rule.
The EEOC determined that the employer imposed the no-Spanish rule without an adequate business justification and fired five employees for defying the rule by continuing to speak Spanish.
According to the EEOC, “A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” An employer must show a “business necessity” to justify such a rule.
There are exceptions to this presumption, and establishing a work environment where English must be spoken is doable. Most federal courts will tolerate “English-only” rules if an employer can show a legitimate business reason for the requirement. Such justifications that courts have found include:
- Reducing hostilities among employees;
- Promoting better (e.g., more polite) customer relations;
- Facilitating clearer communications with customers and/or employees who speak only English;
- Requiring employees to speak a common language to promote safety or enable cooperative work assignments; and
- Furthering interpersonal relations among employees.
This list of examples is not exhaustive. Employers must be cautious, however, not to have an English-only rule that goes a step too far. They must not prohibit non-English speech beyond what is necessary to achieve the acceptable business rationale for the rule. Many English-only practices that arose from legitimate business needs have been found unlawful because they also applied to non-working situations such as rest breaks, mealtime, private conversations, and telephone calls.
Absent a legitimate business necessity in a particular situation, overly broad rules (or the overly broad application of valid rules) are likely to be unlawful discrimination based on national origin. And if an employee is fired for violating the rule, it’s no great stretch to find unlawful retaliation arising from the situation.
How can an employer that has or wants to implement an English-only rule know whether it would be lawful? Unless you have a tried-and-true crystal ball, there is no way to be 100% sure. Each situation must be assessed on its own merits. The most cost-effective approach, however, is to consult with employment counsel before implementing any English-language requirements to ensure that the policy is not discriminatory as written or applied. Establishing a lawful rule is more cost-effective than defending a questionable one in court.
If you have questions about this or any other workplace issues or would like assistance reviewing, revising, and/or enforcing any current rules or employee handbooks, please contact the workplace attorneys at Barnwell Whaley.