The U.S. Commission on Civil Rights (“USCCR” or “Commission”) has issued a briefing report – English Only Policies in the Workplace (pdf) – recommending that an employer’s English-only policy be deemed unlawful only if such policies are enacted to harass, embarrass, or exclude employees and/or applicants based on their national origin. The report also suggests that Congress amend Title VII of the Civil Rights Act to clarify the meaning of discrimination on the basis of national origin. This recommendation runs contrary to the Equal Employment Opportunity Commission’s (EEOC) stated guidelines on this issue, which, in fact, the briefing report advises should be withdrawn.
The eight-member Commission is charged with, among other functions, reviewing the efficacy of current anti-discrimination law, analyzing discrimination in our society, and submitting its findings and recommendations to the President and Congress. To this end, on December 12, 2008, the Commission conducted a hearing to examine whether employers have the legal authority to specify English as the official language of the workplace, as well as the practical and social consequences of such policies. The EEOC has taken the position that English-only policies are presumptively unlawful, as they risk national origin discrimination under Title VII of the Civil Rights Act. According Section 1606.7 of the EEOC guidelines, an English-only policy in the workplace, when applied at all times:
is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates Title VII and will closely scrutinize it.
The same guidelines explain that if the English-only policy is applied only at certain times, an employer may invoke such a rule if it can show that it is justified by business necessity.
Members of the business community widely denounced this position at the 2008 briefing, testifying that there are a number of legitimate, nondiscriminatory reasons for requiring employees to speak English. In addition, as discussed in the briefing report, various courts have similarly rejected the EEOC’s hardline position on English-only requirements. After reviewing the panelists’ testimony and the case history on this subject, the Commission issued the following findings:
- In passing Title VII, which prohibits employers from discriminating on the basis of national origin, among other protected categories, “Congress did not intend to disturb the right to employers to control workplace practices except insofar as their activities constituted discrimination based on race, color, religion, sex or national origin.”
- While “Congress consciously withheld the power to issue substantive regulations in connection with Title VII when it created the EEOC,” the EEOC has nonetheless issued various guidance documents – including those discussing English-only policies – “that effectively bind those employers that are not in a position to risk litigation.”
- The EEOC’s strict English-only policy does not apply to languages other than English.
- A number of courts have rejected the EEOC’s position on this topic.
- There are many legitimate, nondiscriminatory reasons for an employer to implement an English-only policy. Such reasons include “the need for safety, the need to supervise employees effectively and generally insure that they are following employer policies, and the need to provide customers and other employees with a friendly and courteous atmosphere in which they need not worry about the possibility that they are being spoken of in a discourteous manner.”
- The number of employers that adopt English-only policies in order to harass, embarrass or exclude employees and applicants for employment is “relatively few.”
Therefore, the Commission recommends that the EEOC withdraw section 1606.7, and that employers and employees “should be informed that 'English-only' policies are prohibited only when it can be shown by a preponderance of evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin.” In addition, the Commission advises Congress to clarify the meaning of discrimination based on national origin. At a minimum, the briefing report explains, this clarification “should make it clear that an ‘English-only’ policy is prohibited only when it can be shown by a preponderance of the evidence that the policy was adopted for the purpose of harassing, embarrassing or excluding employees or applicants for employment on account of their national origin.”
These findings and recommendations were voted on and approved in late 2010. The briefing report explains, however, that the vote was held before three members of the Commission were appointed. To accommodate their opinions, the briefing report includes a joint dissent by these three members. Generally, the dissenting members assert that the current EEOC guideline on this topic was “purposely crafted to address situations of discrimination, while at the same time allowing an employer to utilize tailored, rather than blanket, English in the workplace policies to address effective job performance, work-related communications with customers or other employees, cooperative work assignments, supervision and safety.” They therefore disagree with the recommendation to withdraw it.
In addition to the findings and recommendations, the Commission’s briefing report contains a summary of the December 12, 2008 proceedings, as well as speaker statements, biographies, and statements from the individual USCCR members.