Language Liability in a Plurality Nation
At the Delano Regional Medical Center (DRMC) in California, as a nurse sat down to her lunch, a coworker approached. She sprayed air freshener over the Filipino-American meal the nurse had prepared, while declaring her hatred for Filipino food.
As an isolated incident, it may have been an individual’s egregious act, but according to a 2010 lawsuit filed against DRMC by the Equal Employment Opportunity Commission (EEOC), it was symptomatic of alleged management-sanctioned discrimination against Filipino-American employees. It also illustrates how an organization’s language policy can quickly morph into a cacophony of discrimination and harassment liabilities.
As the U.S. workforce has become more diverse, language issues have emerged as a growing subset of national origin-based discrimination cases. And, since 1980, when Garcia v. Gloor established language as an essential component of ethnic or national identity and deemed overbroad, English-only policies illegal, the specifics of workplace language restrictions have come under close EEOC scrutiny.
Watch What You Say
In its investigation of DRMC, the EEOC found that Filipino-Americans were singled out for discipline and monitoring because of an English-only policy. The hospital CEO and management allegedly spearheaded the effort in 2006, and encouraged coworkers and volunteers to act as vigilantes. The case settled in September 2012 with no admittance of wrongdoing by DRMC, however the medical center was issued a $975,000 penalty and instructed to introduce mandatory protocol changes for its language policy and handling of harassment and discrimination. It was also forced to submit to EEOC monitoring.
GUIDELINES FOR ENGLISH-ONLY POLICIES
The EEOC offers compliance guidelines and instructional programs through its EEOC Training Institute. Specifically, it suggests that organizations follow these steps before creating an English-only policy:
- Weigh business justifications for the rule against possible discriminatory effects
- Gather evidence of the safety justifications
- Determine evidence of other business justifications, such as supervision needs or customer communication
- Calculate the likely effectiveness of the rule in carrying out objectives
- Assess the English proficiency of workers affected and consider language-improvement programs
- Examine equally effective alternatives to promote safety or efficiency
- Ensure that affected employees are notified about the rule and consequences for violation, possibly in other languages as well as English, with a grace period before the rule’s effective date
The EEOC, charged with interpreting and enforcing Title VII of the Civil Rights Act of 1964, considers language-related issues under national origin-based protections, including discrimination and harassment for accents, English fluency and English-only rules. Today it manages more workplace discrimination cases than ever before, including a jump in national origin-based charges from 6,712 in 1997 to 11,833 in 2011. The settlement cost to employers, excluding the organizational changes and monitoring expenses, reached $34.1 million in 2011. Although a breakdown of incidents involving illegal English-only policies was not available, according to the EEOC, such cases make up a significant portion of national-origin discrimination citations and are also on the rise.
Determining exactly when an English-only workplace policy conflicts with employees’ civil rights, however, is complicated. Inconsistent court interpretations create a “patchwork” of “laws, regulations, case law and policies” without “a single scheme for viewing claims to language rights,” wrote Denise Gilman, professor at the University of Texas at Austin School Law, in the Summer 2011 Harvard Human Rights Journal.
Given that the mere presence of an English-only policy marks a red flag for EEOC scrutiny, revising an employer program based on EEOC suggestions is an appropriate first step to mitigate the potential liability of its unwanted attention.
If specific circumstances deem an English-only policy a “business necessity” it falls within the law, provided evidence backs that assessment.
The EEOC outlines legitimate situations as: communication with customers, coworkers or supervisors who only speak English; emergencies or high-danger processes and environments; cooperative work assignments; and situations in which an English-only speaking supervisor must monitor performance, although only if that performance involves communication with coworkers or customers. The rule must be appropriate to both the environment and the specific job function.
A certain degree of common sense also applies. Rarely will a blanket policy restricting the use of languages other than English at all times be considered legal. And a policy that even hints at xenophobia will be subject to skepticism. Also, establishing a code of conduct that condemns discrimination and harassment, along with training programs that prevent it, shows good faith.
Overall, the tighter the policy construction, the less the chance that management action could be construed as liability-laced, origin-based discrimination or harassment.
A Minority-Majority Nation
The U.S. Census Bureau projections, based on the 2010 census, indicate that in 10 years, among those under 18 years of age, there will be no single ethnic or racial group majority. In 30 years, no group, regardless of age, will constitute a majority. Even today, 20% of all people in the United States speak a language other than English at home. In states like California, Texas, New Mexico and New York, that percentage is even higher.
This certainly presents challenges. But it also presents a broader pool of ideas and talents available to employers who are sensitive to cultural differences and are able and willing to construct workplace policies that can help take advantage of the creativity and productivity of a plurality nation.