During the past 50 years, the American workforce has changed drastically. One of the most noticeable changes has been the absorption of immigrants into the workforce who do not speak English as their first language.

In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work. These so called “English-only” polices may violate the national origin protections of Title VII of the Civil Rights Act of 1964. Employers that implement these policies are at risk of being sued not only by employees who feel wronged by the policy, but also by the U.S. Equal Employment Opportunity Commission.

Employers should be aware that for the past 10 years the EEOC has been targeting employers that implement English-only policies. In fact, the EEOC has made clear through numerous press releases and strategic litigation efforts that combating English-only policies is a priority.

You may be wondering why the EEOC would target policies that restrict employees from speaking a foreign language while at work because language is not specifically protected by Title VII. Although Title VII does not prohibit discrimination on the basis of language, the EEOC reasons that, because language is an “essential national origin characteristic,” English-only policies should be closely scrutinized for compliance with Title VII’s prohibitions against national origin discrimination. See 29 C.F.R. § 1606.7. The agency believes that an English-only policy that restricts employees from speaking in a language other than English at all times is a burdensome condition of employment, which violates Title VII. See id. If, on the other hand, the policy only restricts an employee from speaking a foreign language at certain times, the employer may justify the policy by showing that it was implemented out of a “business necessity.” See id. The EEOC’s English-only policy guidelines, however, do not indicate what “business necessity” means in this context.

Without significant deviations, the courts have followed the EEOC’s general guidance regarding English-only policies. Montes v. Vail Clinic, Inc., 497 F. 3d 116) (10th Cir. 2007), provides an excellent overview of how courts typically analyze English-only policies.

In Montes, the plaintiff was a Mexican housekeeper who worked at a hospital in Vail, Colorado. The plaintiff spoke fluent Spanish and a little English. On several occasions, the plaintiff was asked by her direct supervisor and by nurses to speak English while cleaning the hospital’s operating rooms. It was made clear to the plaintiff that she was permitted to speak Spanish during her breaks and outside of the operating rooms.

The plaintiff brought suit alleging that the hospital’s English-only policy gave rise to a hostile work environment based on national origin. The court rejected the plaintiff’s claim. In doing so, the court recognized that sweeping English-only policies that are “applied mechanically” and “enforced… in all circumstances and at all times within the work environment” can give rise to a claim under Title VII. The court, however, held that the policy in question did not give rise to a Title VII claim because it applied only at certain times; there was no evidence suggesting that the policy was the product of improper motive or that it gave rise to discriminatory effect; and it originated from “business necessity.” The court found that facilitating clear communication between the cleaning staff and medical staff was essential in the operating rooms and was a justified “business necessity.”

In finding that the policy was justified by “business necessity,” the Montes court did not look to any specific factors to guide its decision. Indeed, a court is not required to consider any specific factors when deciding whether an employer’s English-only policy is justified based on business necessity. Instead, like the Montes court, courts engage in a case-by-case analysis to determine whether an employer’s proffered reason for having a n English-only policy is, in fact, justified by business necessity. Unfortunately for the employer, this means that prior to litigation there is typically little certainty regarding whether a particular policy is lawful.

One of the most recent cases to be decided in which the lawfulness of an English-only requirement was at issue, Pacheco v. New York Presbyterian Hosp., 593 F. Supp. 2d 599 (S.D.N.Y. 2009), however, provides an in-depth summary of the types of business necessity justifications that have previously been successful.

In Pacheco, a supervisor at a New York City hospital unilaterally implemented an English-only requirement for all of his subordinates in response to several complaints that he received from patients who believed that the Spanish-speaking employees were talking about them in a language that they did not understand. The supervisor told his subordinates that he expected them to speak in English when in the presence of hospital patients, but that they were permitted to speak in Spanish (or any other language) when patients were not present. The Puerto Rican plaintiff, who spoke both Spanish and English, complained to Human Resources about his supervisor’s new rule on two separate occasions but nothing was done.

The plaintiff brought suit alleging national origin discrimination under theories of hostile work environment, disparate treatment, disparate impact, and retaliation based on the implementation of the English-only policy. In its motion for summary judgment, the hospital argued that its English-only requirement was justified out of business necessity. Specifically, the hospital claimed that the requirement helped facilitate better staff-patient relationships and that the requirement permitted non-Spanish speaking supervisors to properly supervise and evaluate their subordinates.

The court granted the hospital’s motion and dismissed the plaintiff’s case. The court reasoned that the hospital’s proffered justifications for its English-only requirement were consistent with business necessity. In doing so, the court squared the facts of this case with previous rulings where federal courts had found sufficient business necessity justifications for employers’ English-only policies. See id. at 615-16 citing EEOC v. Sephora USA, LLC, 419 F. Supp. 2d 408, 417 (S.D.N.Y. 2005) (finding English-only policy was justified as a means of improving communication with customers); Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007) (upholding English-only policy where policy was necessary to ensure safety for hospital patients); Roman v. Cornell University, 53 F. Supp. 2d 223 (N.D.N.Y. 1999) (finding English-only rule was justified to avoid or lessen interpersonal conflicts between employees); and Long v. First Union Corp. of Virginia, 894 F. Supp. 933 (E.D. Va 1995) (holding that English-only policy was justified to ensure the business runs smoothly and efficiently).

Ultimately, employers that are considering whether to implement an English-only policy should be mindful of the EEOC guidelines and relevant case law. As discussed, a valid English-only policy must be narrowly tailored and address a “business necessity.” A narrowly tailored policy usually permits employees to speak in a language other than English during personal conversations, breaks, and lunch. A policy that prohibits employees from speaking a foreign language at all times, all places, or in all types of communications is typically found to be unlawful. Even though the EEOC and the courts have not specifically defined “business necessity” in the English-only context, case law makes clear that employers may implement narrowly tailored English-only policies for the purposes of promoting safety in the workplace, facilitating effective communication, and lessening the chances of interpersonal conflicts between employees. See Pacheco, 593 F. Supp. 2d. at 615-16.

As always, we recommend seeking advice from legal counsel before implementing such a policy.