We have nine employees in one office area. One employee complained that three of their coworkers speak to each other in another language. The employee is uncomfortable and feels excluded. Can we require everyone in this work group to speak only English?
Issues related to languages spoken in the workplace arise in multiple contexts and must be handled carefully. “English-only” rules risk claims of national origin discrimination.
Language Restrictions
California’s Fair Employment and Housing Act (FEHA) presumes that policies limiting the use of any language in the workplace are unlawful. Employers have the burden of showing that restrictions are justified by business necessity and narrowly tailored to achieve their purpose (California Code of Regulations, Title 2, Section 11028(a)(1)).
“Business necessity” means an overriding legitimate business purpose. Employers also must demonstrate that they have no alternative but to establish language restrictions (California Code of Regulations, Title 2, Section 11028(a)(2)).
Most importantly, an employer cannot restrict the speaking of another language because an employee is uncomfortable (California Code of Regulations, Title 2, Section 11028(a)(3)).
Steps to Address Issue
1. Identify the employee’s specific concerns.
Whenever an employee reports being uncomfortable because of their coworkers’ behavior, it is important to find out the source of that discomfort.
Does the employee feel left out only because they do not understand the language being spoken? Or are there other reasons for their concern?
For example, do they believe their coworkers are talking about or ridiculing them? Is work-related information being shared in a foreign language? Do the conversations disrupt the working environment?
It is critical to understand the complaining employee’s precise issue to determine your response.
2. Determine whether the employee is being harassed or intentionally isolated.
An employer should investigate any allegation that coworkers are mocking or ostracizing other employees. A foreign language should not be used to exclude someone from work opportunities, meetings, training or other job-related communications.
Poor conduct is always a concern — whether it’s occurring in English or another language.
3. Assess whether a common language is necessary for business communications.
Employers can require that work-related communications be conducted in English when there is a legitimate operational reason or business necessity. Such reasons include:
• Daily interactions where work information is shared.
• Team meetings.
• Safety instructions.
The focus should be on ensuring effective business communication, not on prohibiting employees from speaking their native language.
Language restrictions must be tailored narrowly to meet the identified business necessity. It must be clear that employees are free to speak another language during breaks, meals and personal conversations.
4. Address team dynamics.
This employee’s complaint may be less a language issue and more an employee relations and work team issue. The employer may need to remind the team of the importance of team cohesiveness and clear group communications.
There also may be a legitimate concern that the employees are engaging in idle chatter when they are supposed to be working. This is disruptive and has nothing to do with the language spoken.
5. Proceed carefully.
The law protects the right of employees to speak languages other than English in the workplace. However, an employer may have a legitimate business reason to require employees to communicate in a common language when engaged in business discussions.
The important distinction is that an employee feeling excluded is a legitimate employee relations concern, while coworkers speaking other languages generally is protected and, alone, does not support an English-only policy.
Because of the complexity of this issue, it is recommended that an employer consult with employment counsel before establishing any language restrictions.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
