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Are English-Only Policies Discriminatory?

In a recent case, the Tenth U.S. Court of Appeals (which covers Utah) said that English-only policies can discriminate if not carefully crafted and implemented for a legitimate business reason. Read on to learn how to avoid going to trial on a discrimination claim for such a language policy.

Say What?

This case involved claims by 29 Hispanic public employees of the City of Altus, Oklahoma that the City’s new English-only policy discriminated against them and violated their constitutional right to free speech. The policy stemmed from a complaint to the City’s Street Commissioner that because Street Department employers were speaking Spanish, other employees could not understand what was being said on the City radio.

Although initially intended to curb this specific problem, the English-only policy became much broader in its terms and application. It stated that “all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person’s or entity’s limited English language skills.” It covered not only face-to-face communication, but communication by telephones, radios, email and written correspondence.

Despite specifically exempting private communications between co-workers the during lunch hour, breaks, and discussions with family members, according to the City’s Hispanic employees the policy was applied to prohibit private communications. They claimed that they were told that they could not speak Spanish at all, even during breaks and private telephone conversations, and were taunted by other employees because of the new policy. The City countered that the policy was actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish.

The Hispanic employees brought, among other claims, disparate-impact and disparate-treatment claims under Titles VI and VII of the Civil Rights Act, arguing that the policy created a hostile work environment, as well as constitutional claims for violation of their First Amendment right to free speech. After the federal district court decided that the Hispanic employees were not entitled to a trial any of their claims, they appealed to the Tenth Circuit Court of Appeals.

Disparate-Impact and Disparate-Treatment: Is the court speaking a foreign language?

The Tenth Circuit reversed the lower court’s decision with regard to the employees’ disparate-impact and disparate-treatment claims under Title VII. The court explained some differences between these two type of claims, but concluded that the employees had met their burden on both claims to have them decided by a jury trial. While the employees needed to show that the City meant to discriminate against Hispanics by adopting the policy to prevail on a disparate-treatment claim, to raise a valid disparate-impact claim they only needed to show that the policy adversely affected Hispanics to a greater degree than their coworkers, regardless of the City’s intent. However, the employees had to show actual evidence of discriminatory impact on Hispanic employees under the disparate treatment claim, whereas they only had to produce evidence that raised an inference that Hispanic employees were disproportionately affected under the disparate-treatment claim.

In concluding that the employees had a valid disparate-impact claim, the court first noted that whether an English-only policy is discriminatory depends on the terms and circumstances surrounding each policy analyzed. However, the Court agreed with the EEOC guidelines suggesting that an English-only policy, at least when no business need for the policy is shown, is likely in itself to “create an atmosphere of inferiority, isolation, and intimidation” that constitutes a “discriminatory working environment.” 29 C.F.R. § 1606.7.

The court then decided that there was not sufficient evidence of a valid business reason for the policy. The City had argued that the policy was needed because (1) workers who only spoke English could not understand what was being said over the City radio when Spanish was spoken, (2) they felt uncomfortable when Spanish was being spoken by their coworkers, and (3) there were safety concerns with a non-common language being used when heavy equipment was in use. However, the court noted that prior to implementation of the policy, aside from one complaint by a single worker who felt uncomfortable, there was no written record of any communication problems, morale problems or safety problems resulting from the use of a language other than English. Moreover, the complaining employees produced evidence that the policy encompassed lunch, hours, breaks, and private phone conversations, and the City conceded that there was no business reason for such restrictions. Furthermore, the employees alleged that the policy had resulted in taunting and teasing of the Hispanic employees who were constantly reminded that they were not allowed to speak Spanish in the workplace.

Having decided that the employees had already shown evidence of a hostile work environment in the context of their disparate-treatment claim, the court stated that the employees were merely required to produce evidence that inferred that City intended the policy to discriminate against Hispanics to make a valid disparate-treatment claim. The court reasoned that the employees had satisfied this requirement by showing evidence, in addition to the differences in treatment inferred by the policy itself, that the City management realized that the English-only policy would likely lead to taunting of Hispanic employees, that the policy was adopted without prior consultation with Hispanic employees, and that the City mayor may have derogatorily referred to the Spanish language as “garbage” during a news interview.

What we have here is a failure to communicate

Although the first half of the court’s opinion surely disappointed the City officials, they must have been pleased that the court affirmed the dismissal of the employees’ First Amendment claims. The court reasoned that the employees had not shown that the speech precluded by the English-only rule included communications on matters of public concern. Although the employees had argued that by choosing to speak Spanish they expressed ethnic pride in their heritage. While this argument persuaded one of the judges, the majority of the court disagreed and stated that, while the employees undoubtedly took pride in their native language, the content of the speech did not communicate anything of public concern but instead consisted of ordinary business and private matters. The court emphasized that “[t]he First Amendment protection of Free Speech is concerned with communication not internal feelings.” Maldonado v. City of Altus, 2006 WL 52805 (10th Cir. Jan. 11, 2006)

Translating the court’s decision into common English

There are several messages that employers should take from this case if they are considering implementing an English-only policy. First, the employer should not adopt such a policy unless they have a legitimate business reason for such a policy. Any policy should narrowly address the business concerns. Employers should articulate the reasons which lead to implementation of such policies and not rely on arguments that problems might occur in the future without implementation. For example, a policy requiring the use of English only over emergency communications equipment may be necessary to protect public safety. Policies should exempt private speech that occurs during lunch hours, breaks, and private telephone conversations and should be implemented in such a fashion that is consistent with legitimate business needs.