English Only Spoken Here: National Cause for Politicians, but Litigation Landmine for Employers

The debates over immigration and border security have renewed focus on “English-only” policies. Across the country, efforts to formally make English the “national language” of the United States are gaining momentum. Earlier this year, the Senate overwhelmingly voted in favor of designating English the “national language” (63-34) to “promote national unity.” More recently, a town just outside of Dallas, Texas made national headlines for unanimously approving tough, local anti-immigration measures, including a provision naming English the town’s official language. Now, some companies are jumping on this bandwagon. Geno’s Steaks, a landmark cheese steak restaurant in Philadelphia, recently made national news for adopting an English-only ordering policy, posting a sign telling its customers, “This Is AMERICA: WHEN ORDERING ‘SPEAK ENGLISH.'”

Companies, however, must be mindful not to get caught up in this debate. Just because Congress is contemplating making English the national language of the country does not mean that private companies can do the same thing for their businesses. An “English-only” rule can be unlawful national origin discrimination prohibited by Title VII of the Civil Rights Act of 1964. Under Title VII, an employer may only adopt an English-only rule for its employees in very limited circumstances justified by “business necessity,” such as in the interest of employee safety. Also, for an English-only rule to be non-discriminatory, it must be narrowly tailored to meet the business necessity identified by the company. For example, if a company adopts an English-only rule to promote safety on an assembly line, it cannot require employees who do not work on that line to speak only English. Federal law also prohibits national origin discrimination against customers in “places of public accommodation,” such as restaurants and hotels. (Obviously, Geno’s did not get that memo).

Companies considering adopting English-only rules must take care. The Equal Employment Opportunity Commission carefully scrutinizes complaints of discriminatory English-only rules. Companies must be prepared to provide a legitimate justification for an English-only rule, as well as evidence to support the necessity of such a rule. Companies would also be well advised to consult an experienced attorney before adopting any such policies to avoid costly litigation down the road. In the case of Geno’s, local Hispanic groups are already planning a lawsuit. I’m sure Geno’s lawyers will appreciate the business.

If you have any questions about English-only rules, contact the Employment team at Gentry Locke at 540.983.9300.

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