Employers have long understood that rules prohibiting employees from speaking languages other than English are subject to attack by the Equal Employment Opportunity Commission (EEOC). The EEOC’s position is that a rule requiring employees to speak only English at all times while at work is presumptively a violation of Title VII’s prohibition against national origin discrimination because it makes employment opportunities more difficult for individuals from other countries who may not be fluent in English. However, a rule that limits the “English only” mandate to specific times when the requirement can be justified by business necessity is not necessarily a violation of Title VII. EEOC guidance acknowledges that such times include the following:

This month, the National Labor Relations Board (NLRB), which has been increasing its scrutiny of non-union employer policies, invalidated an English only rule. The NLRB focused not on whether the rule was discriminatory, but rather on whether it would chill employees’ ability to engage in concerted activity. The National Labor Relations Act (NLRA) guarantees employees the right to freely discuss and communicate with one another about working conditions, wages, and other terms and conditions of employment. The English only rule at issue in the Valley Health System LLC case prohibited employees of the hospital from speaking any language other than English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers…unless interpretation or translation is requested or required.” The NLRB found that the rule was so broad that it could be interpreted as prohibiting employees from discussing terms and conditions of work in their native language, and thus violated the NLRA. Notably, the rule specifically allowed employees to communicate in their native language before and after work and during breaks and meal periods. The rule at issue here probably would not have run afoul of EEOC guidance, which illustrates that employers now need to be concerned with not only Title VII discrimination issues, but also NLRA concerted activity issues when requiring employees to speak English. Prudent employers should consult with counsel to determine whether their English only rule makes them vulnerable to an NLRA charge.

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