By Jonathan K. Driggs, Attorney at Law
“They’re talking about me again,” the employee complains to her manager. “While I don’t speak their language, I know enough to know they are definitely talking about me and it makes me feel really uncomfortable.” As a result, the company issues the following new policy:
“In order to encourage an inclusive and respectful workplace, all conversations on the premises must be in English. Speaking a foreign language while at work is prohibited.”
Uh-oh. Now trouble’s really brewing because such overly broad “English-only” policies violate EEO laws. Employers may not issue blanket prohibitions according to the U.S. Equal Employment Opportunity Commission—which frequently goes after employers with these types of policies. Nevertheless, when a portion of a workforce is fluent in a language other than English, some issues and concerns can develop between groups of employees. The following is a brief summary of some do’s and don’ts regarding foreign languages while at work, as well as some thoughts on English fluency requirements:
- While employers may require that various types of official business communications be conducted in English when legitimate reasons exist (e.g. safety, efficiency of business operations, supervisor/employee communications, interacting with English speaking customers and vendors, etc.), employers should be careful about not over-applying such requirements. For example, employers generally may not prohibit employees from communicating amongst themselves in the language of their choice.
- It is permissible for employers to politely encourage employees to be sensitive and considerate about having frequent conversations in a foreign language around coworkers who do not speak the language. This includes educating workers about how coworkers can feel alienated when they cannot participate in conversations. However, this is a potentially slippery slope if not handled carefully. It’s one thing to gently encourage employees to be sensitive and inclusive, but it is not permissible to become too heavy-handed about it.
- Anti-discrimination and harassment policies apply regardless of the language spoken. So, if an employer can confirm that employees speaking a foreign language were making sexual or other offensive comments about a coworker, they can be disciplined for violating company policy.
- When dealing with foreign language concerns between coworkers, it is important that the employer is fair to everyone involved. Cultural issues, if not handled correctly, can quickly escalate, resulting in even greater morale problems (not to mention the potential for legal problems). As our workplaces become increasingly diverse, it is important to encourage the development of good will between groups of employees coming from different cultures.
- Employers can require that employees speak the required level of fluency in English (or any other language for that matter) that is required to successfully perform the job. However, it is important that the employer does not require a fluency level higher than that which is actually needed to perform the job in question. I’ve seen employers get in trouble on this issue. For example, the ability to communicate in English in order to receive instructions from an English-speaking manager can be a legitimate job requirement. However, employers may have a hard time making such an argument stick if they currently have employees in the same position who do not speak English who appear to be performing the job successfully. In such cases, screening out applicants who do not speak English can result in charges of national origin discrimination.
A balanced, respectful approach will go a long way to minimizing problems when it comes to foreign language issues at work. Happy managing!
This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
Jonathan’s popular “Employment Law for Managers Seminar” is being offered by two “Custom Fit Programs” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers):
For employers in Salt Lake County: Thursday, October 3 at the SLCC Miller Campus in Sandy. For details and registration contact: Debbie Patten at 801-957-5244.
For employers in Utah County: Thursday, September 26 at the Mountainland Applied Technology College’s Thanksgiving Point campus. For details and registration contact: Roger Rice at 801-753-4153.
For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/