“No Spanish” Rule is National Origin Discrimination and Retaliation, Says EEOC

Constitutional rights lawyers of Helmer Friedman LLP.

The Equal Employment Opportunity Commission (EEOC) recently settled charges of national origin discrimination and retaliation against Total Employment and Management (TEAM). This Washington employer instituted a “No Spanish” rule in its workplace. TEAM, a staffing company, agreed to pay $276,000 to settle the charges filed with the EEOC. According to the EEOC, TEAM imposed a “No Spanish” rule without an adequate business necessity. Also, it fired five employees from two locations when those employees opposed the rule and continued to speak Spanish in the workplace.

As part of the settlement, TEAM agreed to revise and update its policies, provide them in English and Spanish, and train its employees on harassment and discrimination.

Under the EEOC guidance and federal law, “English Only” employment rules violate Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination unless the employer can demonstrate a business necessity. In addition, these rules are considered discriminatory due to a disparate effect on employees who speak English as a second language or through disparate treatment against those same employees when they speak their language of birth and are disciplined or otherwise adversely affected.

EEOC regulations state that a rule requiring employees to always speak English is presumed to violate Title VII and will be closely scrutinized by the Commission. However, such a rule can be valid in very limited circumstances and usually only at certain times. Some situations the EEOC indicates might meet the business necessity requirement are the following:

  • Communicating with customers, coworkers, or supervisors who only speak English.
  • Employees must speak a common language in emergencies or other situations to promote safety.
  • For cooperative work assignments, 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 in English with coworkers or customers.

Generally, such a rule cannot be applied to casual conversations between employees when they are not performing job duties.

Likewise, federal courts have upheld “English Only” rules when there is a potential for workplace danger, where a foreign language is being used to further hostility in the workplace, or when monitoring of employees by supervisors is necessary. Trends in these court decisions track the EEOC guidance—the business justification must be narrow and necessary, and those justifications are shrinking.

Employers considering any rule regarding establishing or limiting language in the workplace should consult with employment counsel before implementing such a rule. A facially neutral policy may be discriminatory when applied, and a believed business justification for such a policy may run contrary to recent decisions and guidance.