Manager Puts Up Language Barriers; EEOC Knocks Them Down

(Published February 15, 2009)

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. 

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Managers need to adjust to the ever-increasing diversity of today's workforce.  This includes adjusting the mindset that employees must speak perfect English and must speak English at all times.

Language Barrier #1: Fluency Requirement

When Nelly Banks was hired to run a thrift store, she made it clear that she had high standards for the sales staff.  Tardiness would not be tolerated.  She also expected all of the sales associates to speak and write English fluently.  After all, how could the business run effectively if everyone didn't communicate in the same language?

Two of the sales associates had a difficult time meeting her fluency standard.  Pedro Escobar and Maria Bautista knew some English and were taking classes to improve, but they couldn't always think of the right words to say in English.  However, they were able to service their customers' needs without any complaints.

Language Barrier #2: English-Only Policy 

Escobar and Bautista conversed with each other in Spanish.  Although they knew they needed to practice their English, it was easier to speak in their native tongue.  They didn't think it mattered when their conversations were between them and no one else.

But it mattered to Banks.  She didn't want any customers who were within earshot of the employees to feel uncomfortable because they couldn't understand what the employees were saying.  So she instituted a rule that English had to be spoken at all times.

Legal Barrier 

Eventually, Banks fired Escobar and Bautista for violating the English-only policy and for failing to meet the English-fluency requirement.  The employees filed discrimination charges with the Equal Employment Opportunity Commission (EEOC).  The store settled the claims and agreed to amend its policies to conform to the EEOC's long-standing principle that such policies cannot be broadly applied and must be based on legitimate business needs.

1.  Rather than requiring sales associates to be fluent in English, they only need to be able to speak and understand English "in a manner that is sufficient for effective communication with supervisors, employees, beneficiaries, and customers, based on the assumption that such individuals can only speak and understand English."  Employees do not necessarily need to have the same English proficiency as native English-speaking supervisors.
   
   Note: The EEOC's compliance manual states that fluency requirements are generally permissible only if required for the effective performance of the position for which it is  imposed.  Employers should avoid uniformly applying fluency requirements to a broad range of dissimilar positions.
   
   
2. The store must permit the use of non-English during lunch and breaks and with customers who speak languages other than English.  It may only penalize willful violations; it is not a willful violation when an employee inadvertently switches from English to his/her native language from time to time.
   
   Note: According to the EEOC, an English-only rule may be considered a "business necessity" if it exists to promote safety; promote efficiency in cooperative work assignments; or promote understanding with customers, co-workers, or supervisors who only speak English.