Overreaching English-Only Policies Spell Trouble for Employers

English-only policies have long been criticized and targeted by the Equal Employment Opportunity Commission. In addition to Title VII of the Civil Rights Act of 1964, English-only policies may also violate other statutes such as Sections 1983 and 1981 of 42 U.S.C., as well as state and city laws. (See Pacheco v. New York Presbyterian Hosp., 593 F. Supp. 2d 599, 604 (S.D.N.Y. 2009) (action alleging violations of Title VII, Section 1981, and New York State and City Human Rights Laws).) Although Title VII does not provide that language is a protected category, the EEOC makes the obvious connection of language and national origin, finding that language is an “essential national origin characteristic,” and therefore, English-only policies should be closely scrutinized for compliance with Title VII's prohibitions against national origin discrimination. (EEOC Guidelines on Discrimination Because of National Origin, 29 C.F.R. ' 1606.7 (Speak English Only Rules) (1980).) The Supreme Court has also noted that language “elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn,” which “all too often result from or initiate racial hostility.” (Hernandez v. New York, 500 U.S. 352, 371 (1991).)

Although the EEOC's guidelines provide that a blanket English-only policy per se satisfies the plaintiff's burden to show a prima facie case of discrimination, courts in the Second Circuit have not adopted this standard. (See Pacheco, 593 F. Supp. 2d at 613.) Rather, courts in this circuit have held that an English-only policy may be a basis for a hostile work environment claim based on national origin discrimination if the employee shows that: 1) the employer's policy had a significant and adverse impact on the employee; and 2) the employer's justified business reason for the policy is pretextual. (See, e.g., Pacheco, 593 F. Supp. 2d at 611-612 (granting summary judgment for employer where plaintiff failed to offer any evidence to disprove employer's legitimate, non-discriminatory business reason for English-only practice); Perez v. New York & Presbyterian Hosp., No. 05 CIV5749 LBS, 2009 WL 3634038 (S.D.N.Y. Nov. 3, 2009).)

A conclusory allegation that an English-only policy has created a hostile work environment is insufficient to establish a hostile work environment claim. (Pacheco, 593 F. Supp. 2d at 623.) However, courts will consider an English-only policy that unreasonably restricts an employee's ability to speak his native language as evidence of harassment. (See Levitant v. City of New York Human Resources Admin., 625 F. Supp. 2d 85, 100 (E.D.N.Y. 2008).) Thus, a court will be less likely to grant an employer's motion for summary judgment where a restrictive English-only policy is accompanied by other indicia of discrimination, such as verbal harassment, excessive scrutiny, or a failure to explain the language policy to employees. (See, e.g., Levitant, 625 F. Supp. 2d at 100 (employer's excessive monitoring in conjunction with prohibition of employee's native language in private conversations was sufficient to raise genuine issues of material fact); see also Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir. 2006) (employer's adoption of English-only policy without consulting with Hispanic employees is evidence of intent to create a hostile work environment), overruled on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).)

English-Only Policy Must Result in an Adverse Employment Action

In order to prevail on a discrimination claim, an employee still must show that an employer's English-only policy resulted in an adverse employment action. As with any other discrimination action brought under Title VII, an “adverse employment action” in an English-only policy claim is a “materially adverse change in the terms and conditions of employment ' more disruptive than a mere inconvenience or an alteration of job responsibilities.” (Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal citations and quotations omitted).) Where the employee is seeking to prove a hostile work environment claim, the employee must show that the workplace is “permeated with discriminatory intimidation, ridicule, and insult ' that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” (See Levitant, 625 F. Supp. 2d at 97.)

Disciplinary write-ups may constitute adverse employment actions “if they affect ultimate employment decisions such as promotions, wages or termination.” (Knight v. City of New York, 303 F. Supp. 2d 485, 497 (S.D.N.Y. 2004) aff'd, 147 F. App'x. 221 (2nd Cir. 2005).) Although threats of disciplinary action and excessive monitoring will not, in and of themselves, constitute adverse employment actions, they could also support an employee's hostile work environment claim if they are “part of a broader campaign of harassment and retaliation.” (See Levitant, 625 F. Supp. 2d at 98-100 (supervisor threatened to write up employee when he witnessed employee speaking Russian during personal telephone calls).)

English-Only Policies Must Be Supported by a Legitimate Business Justification

An employer must show that the English-only policy is consistent with business necessity and that it is job-related in order to shift the burden back to the employee. An employer “cannot satisfy this burden simply by demonstrating the English-only rule is convenient or beneficial to its business. Instead, [the employer] must show that the asserted business necessity is vital to the business.” (EEOC v. Beauty Enters., No. 3:01CV378(AHN), 2005 WL 2764822, at * 3 (D. Conn. Oct. 25, 2005).) Limited English-only policies have been upheld where their purpose was to “facilitate[e] customer relations” or “to promote communication among employees and supervisors.” (Pacheco, 593 F. Supp. 2d at 614-615 (collecting cases).) The EEOC's Compliance Manual further provides that an English-only policy may be justified by a business necessity such as “communication with customers, coworkers or supervisors” or “to enable a supervisor ' to monitor the performance of an employee.” (EEOC Compliance Manual ' 13-V(C)(1) (“Application of Title VII to English-Only Rules”) (Dec. 2002).) Some examples of legitimate business justifications that courts have upheld include “promoting employee cohesion,” “improving communication with customers,” and “promoting politeness to customers.” (Perez, 2009 WL 3634038 at *14 (internal citations and quotations omitted).)

Selective Enforcement of an English-only Policy

If the employer provides a legitimate business reason for the policy, an employee may still prevail if the employee can show that a discriminatory reason motivated the employer or the employer's reason is not credible. Courts will be quick to find an English-only policy to be a pretext for discrimination if an employer does not enforce the policy with an even hand. For example, a New York district court denied an employer's summary judgment motion where an employee alleged that his employer subjected him to a hostile work environment because his supervisor forbade him to speak Russian during personal phone calls while allowing other employees to speak Spanish during working hours. (Levitant, 625 F. Supp. 2d 85 (denying employer's summary judgment motion to dismiss plaintiff's hostile work environment claim).)

The court found that if such a policy existed that “specifically targeted plaintiff and his native language with respect to personal conversations, such evidence could be used to support the existence of a hostile work environment based upon his national origin.” (Id. at 99-100; see also Velasquez v. Goldwater Mem'l Hosp., 88 F. Supp. 2d 257, 263 (S.D.N.Y. 2000) (“if plaintiff were able to present evidence that other employees were permitted to speak in, for example, Chinese or Portuguese, but not Spanish, such evidence could support an inference of intentional discrimination on the basis of national origin”).)

English-Only Policies Should not Apply to
Off-Duty Conduct

Courts have upheld English-only policies that required employees to speak only English during business hours and while they were in the presence of customers. (EEOC v. Sephora USA, LLC, 419 F. Supp. 2d 408 (S.D.N.Y. 2005).) However, where a bilingual employee is prohibited from speaking a foreign language at all times, including during personal phone calls and during lunch, a court is more likely to find that such a policy results in national origin discrimination. (See Levitant, 625 F. Supp. 2d at 101 (denying employer's summary judgment motion to dismiss plaintiff's hostile work environment claim). Summary judgment for the employer may be avoided by evidence such as affidavits from co-workers supporting the plaintiff's claim that such a policy was applied during off-duty hours. (Perez, 2009 WL 3634038 at *1, 13.)

Other Evidence of National Origin Discrimination

Other evidence of national origin discrimination can be helpful to prove that an employer's proffered reason for an English-only policy is a pretext for discrimination. In Maldonado v. City of Altus, the plaintiffs alleged that an English-only policy created a hostile work environment for Hispanic workers. (433 F.3d 1294, 1301 (10th Cir. 2006).) In reversing the District Court's grant of summary judgment for the defendant, the Tenth Circuit Court of Appeals noted the extensive allegations of taunting, harassment, and racial jokes that resulted from the policy. (Id.) Likewise in Levitant v. City of New York Human Resources, the court denied an employer's summary judgment motion on a hostile work environment claim where a restrictive and selectively enforced English-only policy was accompanied by insults and excessive monitoring by the employer. The court noted that “[t]hough the alleged excessive monitoring and the alleged insults referring to plaintiff's racial and/or national origin (if credited) might not be sufficiently pervasive or severe to constitute a hostile work environment if viewed in isolation, there is also evidence that the plaintiff was given a directive forbidding him from speaking his native language in personal conversations while others were permitted to do so.” Just as other evidence of national origin discrimination may be very helpful in showing that the employer's proffered justification was pretext, the absence of any such evidence may be a problem to a plaintiff trying to avoid summary judgment. (Perez, 2009 WL 3634038 at *14) (“Circumstantial evidence of discriminatory intent is lacking. Plaintiff's evidence of racial slurs and jokes is based solely on his own allegations and has not been substantiated by a third party's affidavit; nor do his allegations even indicate that jokes and slurs were common occurrences ' “)

Courts Consider Whether the Employee Is Bilingual And Hired to Speak the Foreign Language for
Business Purposes

Courts have been more accepting of English-only policies where the affected employees are bilingual and have little trouble communicating without violating the policy. (Pacheco, 593 F. Supp. 2d at 613; Perez, 2009 WL 3634038 at *14.) Where an English-only policy is enforced against employees who are monolingual in their native tongue or who have difficulty communicating in English, a court is more likely to conclude that the employer's justification for the policy is pretextual. One court noted that “[t]o a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth.” (Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980).) However, where the employee has little difficulty communicating in English, this factor will tend to negate a finding of pretext.

Courts are hesitant to find pretext where the employee is required, as part of his job duties, to speak the foreign language at issue to customers. Where the employer has a hiring preference for bilingual employees or where “an employee has been asked or required to speak Spanish on the job” may weigh against an inference of discrimination when evaluating a limited English-only policy. Id. (Citing Long v. First Union Corp. of Virginia, 894 F. Supp. 933, 942 (E.D. Va. 1995) aff'd, 86 F.3d 1151 (4th Cir. 1996).)

Conclusion

Ultimately, there is no bright line rule to determine whether an English-only policy violates anti-discrimination laws. Rather, courts balance a variety of factors when evaluating these types of claims. These factors range from the purpose of the policy to its application and effects in the workplace. Employers should be wary of applying over-reaching policies that may cause hostility and tension among its workforce. The Supreme Court noted the powerful influence of language when it stated that “just as shared language can serve to foster community, language differences can be a source of division.” (Hernandez v. New York, 500 U.S. 352, 371 (1991); see also Pacheco, 593 F. Supp. 2d at 612 (citing Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980) (noting that “[l]anguage may be used as a covert basis for national origin discrimination”).)

Delyanne Barros is an associate at Outten & Golden LLP. She represents employees in litigation and negotiation in all areas of employment law, including wage and hour class actions and individual discrimination cases. E-mail: [email protected].

In May 2011, eight Hispanic employees of the City of Rochester, NY, filed an action against the City, among other defendants, for implementing a sweeping English-only policy that prohibited Spanish from being spoken at all times, including breaks and whether it was within or outside the presence of non-Spanish speaking employees. (See Rodriguez v. City of Rochester, No. 6:11-cv-06256-MAT (W.D.N.Y. 2011).) According to the complaint, the employees' manager told them, “if you want to speak Spanish, do it at home and not at the workplace.” (Id.)

Legal Background

Rochester is a thriving economic metropolitan city, home to heavy-hitting corporations such as Xerox, Kodak, GM, and Bausch & Lomb. According to the 2010 census, it is the third largest city in New York State, with a population of approximately 211,000 people, 16.4% of whom identify themselves as Hispanic. (Racial Demographics of Area Towns, ROCDOCS, http://rocdocs.democratandchronicle.com/database/racial-demographics-area-towns
(last visited May 23, 2011).) Therefore, hearing a co-worker speak Spanish in the workplace should be not only commonplace, but expected. Employers should realize that these over-reaching policies are illegal, bad for employee morale, contradictory to diversity initiatives, and bad business overall.

English-only policies have long been criticized and targeted by the Equal Employment Opportunity Commission. In addition to Title VII of the Civil Rights Act of 1964, English-only policies may also violate other statutes such as Sections 1983 and 1981 of 42 U.S.C., as well as state and city laws. ( See Pacheco v. New York Presbyterian Hosp. , 593 F. Supp. 2d 599, 604 (S.D.N.Y. 2009) (action alleging violations of Title VII, Section 1981, and New York State and City Human Rights Laws).) Although Title VII does not provide that language is a protected category, the EEOC makes the obvious connection of language and national origin, finding that language is an “essential national origin characteristic,” and therefore, English-only policies should be closely scrutinized for compliance with Title VII's prohibitions against national origin discrimination. (EEOC Guidelines on Discrimination Because of National Origin, 29 C.F.R. ' 1606.7 (Speak English Only Rules) (1980).) The Supreme Court has also noted that language “elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn,” which “all too often result from or initiate racial hostility.” ( Hernandez v. New York , 500 U.S. 352, 371 (1991).)

Although the EEOC's guidelines provide that a blanket English-only policy per se satisfies the plaintiff's burden to show a prima facie case of discrimination, courts in the Second Circuit have not adopted this standard. (See Pacheco, 593 F. Supp. 2d at 613.) Rather, courts in this circuit have held that an English-only policy may be a basis for a hostile work environment claim based on national origin discrimination if the employee shows that: 1) the employer's policy had a significant and adverse impact on the employee; and 2) the employer's justified business reason for the policy is pretextual. (See, e.g., Pacheco, 593 F. Supp. 2d at 611-612 (granting summary judgment for employer where plaintiff failed to offer any evidence to disprove employer's legitimate, non-discriminatory business reason for English-only practice); Perez v. New York & Presbyterian Hosp., No. 05 CIV5749 LBS, 2009 WL 3634038 (S.D.N.Y. Nov. 3, 2009).)

A conclusory allegation that an English-only policy has created a hostile work environment is insufficient to establish a hostile work environment claim. (Pacheco, 593 F. Supp. 2d at 623.) However, courts will consider an English-only policy that unreasonably restricts an employee's ability to speak his native language as evidence of harassment. ( See Levitant v. City of New York Human Resources Admin. , 625 F. Supp. 2d 85, 100 (E.D.N.Y. 2008).) Thus, a court will be less likely to grant an employer's motion for summary judgment where a restrictive English-only policy is accompanied by other indicia of discrimination, such as verbal harassment, excessive scrutiny, or a failure to explain the language policy to employees. ( See, e.g., Levitant , 625 F. Supp. 2d at 100 (employer's excessive monitoring in conjunction with prohibition of employee's native language in private conversations was sufficient to raise genuine issues of material fact); see also Maldonado v. City of Altus , 433 F.3d 1294, 1308 (10th Cir. 2006) (employer's adoption of English-only policy without consulting with Hispanic employees is evidence of intent to create a hostile work environment), overruled on other grounds, Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006).)

English-Only Policy Must Result in an Adverse Employment Action

In order to prevail on a discrimination claim, an employee still must show that an employer's English-only policy resulted in an adverse employment action. As with any other discrimination action brought under Title VII, an “adverse employment action” in an English-only policy claim is a “materially adverse change in the terms and conditions of employment ' more disruptive than a mere inconvenience or an alteration of job responsibilities.” ( Galabya v. New York City Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000) (internal citations and quotations omitted).) Where the employee is seeking to prove a hostile work environment claim, the employee must show that the workplace is “permeated with discriminatory intimidation, ridicule, and insult ' that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” (See Levitant, 625 F. Supp. 2d at 97.)

Disciplinary write-ups may constitute adverse employment actions “if they affect ultimate employment decisions such as promotions, wages or termination.” ( Knight v. City of New York , 303 F. Supp. 2d 485, 497 (S.D.N.Y. 2004) aff'd, 147 F. App'x. 221 (2nd Cir. 2005).) Although threats of disciplinary action and excessive monitoring will not, in and of themselves, constitute adverse employment actions, they could also support an employee's hostile work environment claim if they are “part of a broader campaign of harassment and retaliation.” (See Levitant, 625 F. Supp. 2d at 98-100 (supervisor threatened to write up employee when he witnessed employee speaking Russian during personal telephone calls).)

English-Only Policies Must Be Supported by a Legitimate Business Justification

An employer must show that the English-only policy is consistent with business necessity and that it is job-related in order to shift the burden back to the employee. An employer “cannot satisfy this burden simply by demonstrating the English-only rule is convenient or beneficial to its business. Instead, [the employer] must show that the asserted business necessity is vital to the business.” (EEOC v. Beauty Enters., No. 3:01CV378(AHN), 2005 WL 2764822, at * 3 (D. Conn. Oct. 25, 2005).) Limited English-only policies have been upheld where their purpose was to “facilitate[e] customer relations” or “to promote communication among employees and supervisors.” (Pacheco, 593 F. Supp. 2d at 614-615 (collecting cases).) The EEOC's Compliance Manual further provides that an English-only policy may be justified by a business necessity such as “communication with customers, coworkers or supervisors” or “to enable a supervisor ' to monitor the performance of an employee.” (EEOC Compliance Manual ' 13-V(C)(1) (“Application of Title VII to English-Only Rules”) (Dec. 2002).) Some examples of legitimate business justifications that courts have upheld include “promoting employee cohesion,” “improving communication with customers,” and “promoting politeness to customers.” (Perez, 2009 WL 3634038 at *14 (internal citations and quotations omitted).)

Selective Enforcement of an English-only Policy

If the employer provides a legitimate business reason for the policy, an employee may still prevail if the employee can show that a discriminatory reason motivated the employer or the employer's reason is not credible. Courts will be quick to find an English-only policy to be a pretext for discrimination if an employer does not enforce the policy with an even hand. For example, a New York district court denied an employer's summary judgment motion where an employee alleged that his employer subjected him to a hostile work environment because his supervisor forbade him to speak Russian during personal phone calls while allowing other employees to speak Spanish during working hours. (Levitant, 625 F. Supp. 2d 85 (denying employer's summary judgment motion to dismiss plaintiff's hostile work environment claim).)

The court found that if such a policy existed that “specifically targeted plaintiff and his native language with respect to personal conversations, such evidence could be used to support the existence of a hostile work environment based upon his national origin.” ( Id . at 99-100; see also Velasquez v. Goldwater Mem ' l Hosp. , 88 F. Supp. 2d 257, 263 (S.D.N.Y. 2000) (“if plaintiff were able to present evidence that other employees were permitted to speak in, for example, Chinese or Portuguese, but not Spanish, such evidence could support an inference of intentional discrimination on the basis of national origin”).)

English-Only Policies Should not Apply to
Off-Duty Conduct

Courts have upheld English-only policies that required employees to speak only English during business hours and while they were in the presence of customers. ( EEOC v. Sephora USA, LLC , 419 F. Supp. 2d 408 (S.D.N.Y. 2005).) However, where a bilingual employee is prohibited from speaking a foreign language at all times, including during personal phone calls and during lunch, a court is more likely to find that such a policy results in national origin discrimination. (See Levitant, 625 F. Supp. 2d at 101 (denying employer's summary judgment motion to dismiss plaintiff's hostile work environment claim). Summary judgment for the employer may be avoided by evidence such as affidavits from co-workers supporting the plaintiff's claim that such a policy was applied during off-duty hours. (Perez, 2009 WL 3634038 at *1, 13.)

Other Evidence of National Origin Discrimination

Other evidence of national origin discrimination can be helpful to prove that an employer's proffered reason for an English-only policy is a pretext for discrimination. In Maldonado v. City of Altus, the plaintiffs alleged that an English-only policy created a hostile work environment for Hispanic workers. (433 F.3d 1294, 1301 (10th Cir. 2006).) In reversing the District Court's grant of summary judgment for the defendant, the Tenth Circuit Court of Appeals noted the extensive allegations of taunting, harassment, and racial jokes that resulted from the policy. (Id.) Likewise in Levitant v. City of New York Human Resources, the court denied an employer's summary judgment motion on a hostile work environment claim where a restrictive and selectively enforced English-only policy was accompanied by insults and excessive monitoring by the employer. The court noted that “[t]hough the alleged excessive monitoring and the alleged insults referring to plaintiff's racial and/or national origin (if credited) might not be sufficiently pervasive or severe to constitute a hostile work environment if viewed in isolation, there is also evidence that the plaintiff was given a directive forbidding him from speaking his native language in personal conversations while others were permitted to do so.” Just as other evidence of national origin discrimination may be very helpful in showing that the employer's proffered justification was pretext, the absence of any such evidence may be a problem to a plaintiff trying to avoid summary judgment. (Perez, 2009 WL 3634038 at *14) (“Circumstantial evidence of discriminatory intent is lacking. Plaintiff's evidence of racial slurs and jokes is based solely on his own allegations and has not been substantiated by a third party's affidavit; nor do his allegations even indicate that jokes and slurs were common occurrences ' “)

Courts Consider Whether the Employee Is Bilingual And Hired to Speak the Foreign Language for
Business Purposes

Courts have been more accepting of English-only policies where the affected employees are bilingual and have little trouble communicating without violating the policy. (Pacheco, 593 F. Supp. 2d at 613; Perez, 2009 WL 3634038 at *14.) Where an English-only policy is enforced against employees who are monolingual in their native tongue or who have difficulty communicating in English, a court is more likely to conclude that the employer's justification for the policy is pretextual. One court noted that “[t]o a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth.” ( Garcia v. Gloor , 618 F.2d 264, 270 (5th Cir. 1980).) However, where the employee has little difficulty communicating in English, this factor will tend to negate a finding of pretext.

Courts are hesitant to find pretext where the employee is required, as part of his job duties, to speak the foreign language at issue to customers. Where the employer has a hiring preference for bilingual employees or where “an employee has been asked or required to speak Spanish on the job” may weigh against an inference of discrimination when evaluating a limited English-only policy. Id . (Citing Long v. First Union Corp. of Virginia , 894 F. Supp. 933, 942 (E.D. Va. 1995) aff'd, 86 F.3d 1151 (4th Cir. 1996).)

Conclusion

Ultimately, there is no bright line rule to determine whether an English-only policy violates anti-discrimination laws. Rather, courts balance a variety of factors when evaluating these types of claims. These factors range from the purpose of the policy to its application and effects in the workplace. Employers should be wary of applying over-reaching policies that may cause hostility and tension among its workforce. The Supreme Court noted the powerful influence of language when it stated that “just as shared language can serve to foster community, language differences can be a source of division.” ( Hernandez v. New York , 500 U.S. 352, 371 (1991); see also Pacheco , 593 F. Supp. 2d at 612 (citing Garcia v. Gloor , 618 F.2d 264, 270 (5th Cir. 1980) (noting that “[l]anguage may be used as a covert basis for national origin discrimination”).)

Delyanne Barros is an associate at Outten & Golden LLP. She represents employees in litigation and negotiation in all areas of employment law, including wage and hour class actions and individual discrimination cases. E-mail: [email protected].