English-Only Rules Present High Risk to Hawaii Employers

Title VII prohibits discrimination because of "national origin." The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual's ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination. Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise. Many of these claims arise from employers promulgating English-Only policies. In the EEOC's view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often. In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination. Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their "ancestry." However, as a practical matter "ancestry" and "national origin" are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person's ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission ("HCRC") have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC's regulations presume that blanket English-Only rules are per se unlawful. Their position also is that limited English-Only policies are lawful only if justified by business necessity. 2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy:

• For communications with customers, coworkers, or supervisors who speak only English;
• in emergencies or other situations where workers must speak a common language to promote safety;
• for cooperative work assignments in which the English-Only rule is needed to promote efficiency;
• to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Employers with English-Only rules should also consider doing the following:

• Implement cultural sensitivity training programs for supervisors;
• provide non-native English-speaking employees English classes;
• ensure to the extent possible an even-handed application of the rule;
• draft or revise the English-Only rule as narrowly as possible;
• give employees fair notice of the rule and consequences for violating the policy;
• have the policy written in other languages spoken in the workplace.

Roman Amaguin, Esq; http://www.amaguinlaw.com.

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.

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