Can Employers Implement English Only Policies Without Discriminating? [e281]

Full Podcast Transcript

NASIR: Hello and welcome to Legally Sound Smart Business.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And…

MATT: And we’re two attorneys here with Pasha Law. You know, it’s been a little bit. I guess it’s been probably a full month since the last time this came out.

NASIR: I think we’re both a little older, a little wiser.

MATT: Definitely older. I think that’s how time works.
So, yeah, welcome to the podcast where we discuss current business news with a legal twist.
Today, we’re going to discuss whether or not businesses can require employees to speak only English while at work which is something I’ve actually thought about before. You and I are both in I guess locations where it might be more applicable than others.

NASIR: Yeah. I mean, Houston is like a metropolitan when it comes to languages and cultures. I mean, it’s not a New York but it’s pretty close. Of course, San Diego, the Latin community there is absolutely huge. In fact, not knowing Spanish is quite a detriment which is why I moved out right away.

MATT: Right away?

NASIR: After a long number of years.

MATT: Yeah, location is not everything because what we’re sort of going to touch on here deals with a situation in Milwaukee.

NASIR: That’s true.

MATT: This is pretty expansive but let’s dive into this.
A small mom-and-pop store in Milwaukee, Wisconsin – Leon’s Frozen Custard – is having some issues. I guess a customer named Joey Sanchez said he was behind a Spanish-speaking woman while he was in line at the frozen custard store who was told by an employee that she had to place her order in English. I guess Mr. Sanchez thought that was a little bit weird. When he got up in line, he too was told he had to order in English. At that point, the employee who speaks both Spanish and English told him that she was not allowed to speak Spanish to the customer even though they could have a perfectly fine and understandable conversation speaking in Spanish.

NASIR: I just got a note. This Leon’s Frozen Custard is apparently kind of a staple in the area. It’s this kind of cool, it almost looks like an old studio diner kind of deal. If you look at it, it reminds me, have you ever been to that frozen yogurt place in El Cajon? It’s called The Mill.

MATT: I don’t think so, no.

NASIR: Obviously, I can’t now, but you’ve got to check it out. It’s a good summer place to go to get some frozen yogurt. I’m looking it up. I think it’s called The Mill.

MATT: Perfect timing in November. I guess it’s been pretty hot here.

NASIR: Perfect time. Yeah, the Yogurt Mill. This was before yogurt places were popular, where you’d pay per ounce. This is like you pay a few bucks and get a whole large cup of yogurt, whatever flavors you want. Usually, in the summers, there’s lines out the door every single day. Check it out.
Anyway, quick plug and they definitely did not sponsor this program but we definitely will be asking for some money after this. But, go ahead, sorry to interrupt.

MATT: The podcast where we do the sponsor randomly in the middle which does exist for a lot of them.
So, we have this situation here and the owner of this Leon’s Frozen Custard, Ron Schneider, not to confused with Rob Schneider.

NASIR: I was confused.

MATT: He’s claiming that he’s following the law. This was before this fall happened. He’s following the law and his policy is a matter of business and speeding up sales and not one of discrimination. He said he’s had this policy in place for more than a decade, when an increasing number of Spanish speakers moved into the area in Milwaukee. This policy, what it was is that employees are required to speak only English – not only to each other and obviously to the customers as well. He’s initially claiming the policy is about running an effective business. No discriminatory purposes. That was the initial policy. There was obviously some fallout here and now he’s kind of coming around a little bit, saying he’s lightening up on the policy. He said he’ll allow employees to speak with customers in Spanish, he’ll continue to ask his employees to speak English between each other which is interesting but then it kind of makes sense when you listen to this quote he has here. “If anybody comes up in here, employees are instructed to do whatever they can do to help them. If you talk in Spanish, fine; but, if you come up and speak German, we’re going to have a problem because we don’t have anybody here that speaks German.” He’s obviously learned his lesson.

NASIR: Yeah, it’s a little strange. Apparently, this Ron Schneider guy has his spouse and children are Hispanic. It kind of throws you in a loop there and that’s actually part of his defense – like, “Hey, I’m not trying to discriminate here. This is how I want to do business,” I suppose. I mean, here’s the thing. I think, from his perspective at first, it may not be that big of a deal and he may not be thinking the repercussions of this policy. It’s like, “Hey, I just want to create an environment that people speak English.” Somehow, he believes that – what was his excuse?

MATT: To speed things along and make it more efficient.

NASIR: Speed things along?

MATT: Yeah.

NASIR: I guess. I’m trying to think how that kind of logic works out but, even assuming he’s correct that it speeds things along – which I think is a very tough sell – for people in different states and different cultures and understanding of things, that kind of policy is obviously jarring. But perhaps, to him, obviously, it’s not and there’s a lot of things like that that employers do – possibly innocently or ignorantly, depending upon how you look at it – and don’t really take into consideration the legal implications that that may impose.

MATT: I don’t even think it’s possible that this could be more efficient because the situation I’m envisioning is somebody shows up to this place where English is their second language, being forced to speak, to communicate in English where it’s going to take them longer to do so. It’d be one thing if the person was showing up, speaking Spanish to somebody that didn’t speak Spanish. But, if the employee is capable of speaking that language and that’s the customer’s first language, it’s definitely going to be more efficient that way. But who am I to judge?

NASIR: Yeah, who are you to judge? But, at the same time, if we want to judge for a second, it really doesn’t make any sense. I think we all kind of have that understanding. Basically, the EEOC started investigating a little bit and LULAC – the League of United Latin American Citizens which is an advocacy group for Latin Americans, of course, you may have heard of them – apparently, he was going to meet with them but, very intelligently, decided to cancel in order to confer with his council first which makes sense because I’m not intimately aware but, just like the NAACP or ACLU, LULAC is known for pursuing litigation. I don’t think they would bat an eye in pursuing such to make an example because, by the way, this is not the first – nor the last – restaurant or business that has some kind of language English-only policy that may not be legal.

MATT: Yeah, and just to make it clear here, I mean, the big thing is whether this is discriminatory of people of certain country of origin, I think there’s some issues with potential harassment as well or at least claims maybe as such but what we’re dealing with here is discrimination. What you just kind of touched on, this isn’t the first instance. I mean, far from it.
For example, if this issue was a matter in 2012, the EEOC reached a $2.44 million settlement in a class action suit against the University of Incarnate Word in San Antonio dealing with 18 Hispanic housekeepers who were subjected to an English-only rule. This is where some alleged harassment as a result, all due to their national origin.
Let’s see. Just to get into some of the specifics here, employees spoke little to no English; others testified Spanish was their primary language even though they were born in the US; other employees were bilingual. Basically, it’s kind of what we’d touched on before, workers complained they had difficulty complying with the rule because they did not speak English or basically, if you know somebody whose first language is Spanish, it’s just going to be second nature to be speaking with them in Spanish.
I’ve been to another country where I found someone that spoke English pretty fluently. Instantly going to that, not that I speak other languages.

NASIR: Well of course, especially if your co-worker speaks the exact same language. That’s what was really a big problem in this case. This is not just English-only with customers or in front of other people. This is English-only all the time. That means that, even if you’re in a room, cleaning a room – I think these people were housekeepers – and they were talking to each other and they were talking in Spanish, that was somehow prohibited. What could be the valid business reason there? There’s no excuse to say that it can speed things up. For example, if you said there’s no talking because talking is a distraction for work, that is ten times more legitimate and rational than you can’t speak in Spanish, right?

MATT: You’re exactly right. I mean, the only explanation – like in this instance with the housekeepers – if they’re two people that speak Spanish cleaning and only talking to each other, the only explanation is – well, I can’t say racist because it doesn’t necessarily deal with race – originist?

NASIR: I think the word is xenophobic, possibly, but it’s not necessarily a fear of outsiders. Well, some kind of combination of xenophobia and racism. I’m sure someone can tell us a more perfect term.

MATT: Yeah, I don’t want to say racism because it could be someone of a certain race that’s still in that situation.

NASIR: True.

MATT: I think people get the idea.

NASIR: Ethnicity. Actually, someone used the word “ethnists” with me this last week. I don’t know if that’s a word.
But, nonetheless, I think we’ve seen also, I mean, I’ve seen personal experiences where people make comments about you go to a restaurant – whether it’s a Chinese restaurant that has Spanish-speaking cooks or what-have-you – and I’ve heard kind of anecdotes of people, “Hey, in the kitchen, don’t speak Spanish loudly because then somehow that’s going to have some kind of negative effect.” These are the kinds of things that, on the one hand, someone can say, “I understand the rationale behind it because so-called people want to have this authentic Chinese food.”
But having those kinds of restrictions and actually making a policy, you really, really have to be careful about that because the law is pretty clear. I think you mentioned that, at first, language is not a particular protected class but it has a direct connection with national origin. You get into a little bit of a nuance because, even with the United States, you can have different accents and languages.
For example, you could. In theory, discriminate against people’s accent because they’re from the south or from the east or even a Hawaiian accent. Even in Hawaii, they still speak local languages there and the national origins still could be the US. That does pose some complexity to the issue but I’m just kind of pointing out that, really, the discriminatory practice, as you mentioned, comes from the national origin level.

MATT: Right. Exactly.
You know, let’s get into the actual law and what we’re talking about on the federal side is the Age Discrimination and Employment Act (ADEA). Like you said, we’re dealing with national origin. What has the EEOC said? Basically, to summarize, rules requiring employees to speak English only in the workplace violate the law unless they are reasonably necessary to the operation of the business – which we’ll get to. Really, a rule requiring employees to speak only English in the workplace at all times – including breaks, lunch, et cetera – is rarely going to be justified and that makes sense. In line with we’ve kind of discussed so far.

NASIR: And that goes to that University of the Incarnate Word in San Antonio where they settled. For 18 different employees, they settled for a reason for $2.44 million. That’s a pretty good sizeable settlement for those number of employees.

MATT: So, reasonably necessary to the operations of business. You know, a business necessity. What exactly does that entail? I think it’s a typical situation where there’s gray area. But, for this English-only rule, communications with customers – or potentially co-workers, supervisors – that speak only English, I mean, that makes sense. Emergencies or other situations where the workers must speak a common language.

NASIR: Like any kind of safety issue, yeah. You don’t want to say to a 911 operator that doesn’t know English, that wouldn’t be very helpful.

MATT: Right. For work assignments which English-only is needed to promote efficiency which was no surprise either.

NASIR: That gives you a little bit of wiggle work because what exactly is efficiency and all that? But we’ll take it as is.

MATT: Yeah, and I think that’s what the owner of Leon’s Frozen Custard was trying to argue. To enable a supervisor who only speaks English to monitor the performance of an employee whose job requires communication with co-workers or customers. It’s kind of a mismatch of some of the other ones.

NASIR: That’s also a little difficult because the frozen yogurt place owner could say, “Well, I don’t speak Spanish and when my employee is speaking Spanish with a customer, how am I able to evaluate or manage that employee to make sure that they’re doing a good job, that they’re saying something appropriate?” I was thinking about it earlier.
When we do these podcast episodes, we obviously try to make something relevant to our clients – also, obviously, potential clients as well. I was just thinking, with this topic, you know, Ron Schneider is not the type of person that is going to be a client of Pasha Law. I’m just being frank, right? Because, if you as a business owner already have the mentality that I’m going to kind of go in this, shooting from the hip, without really a reflection of what is right and what is wrong, you’re not going to seek an attorney and you’re going to end up being on the front page of Yahoo! News where a podcast like us starts talking about how silly you are. The point being is that, as a business owner, you really have to take an active role to do this and, frankly, if maybe he managed it a little bit better, he could have come up with a little bit better position on justifying how he implements his policy, frankly.

MATT: Right. I personally haven’t come across a business that wanted – at least a client of ours – that wanted to implement a similar policy of English-only but, if they did, there are some ways I guess you could structure it to make it in compliance here with the law. I mean, the things we discussed earlier – you know, what is a business necessity – that’s not a set of factors or anything like that. There’s no hardline test for this but there’s always ways to go about it and it should be make sense based on what we’ve talked about so far.

NASIR: As we’ve shown, there are legitimate reasons to do so. For example, this wasn’t in the US but I think the same rules apply. Uber in England, they were facing some government kind of oversight because they have an English-only policy. The idea that their drivers must be able to pass some test showing that they speak English. Really, the issue there was that you have drivers that may have gotten educated outside and being able to access their certificate and they have to pay for a test. There were some other issues regarding kind of proof of that but the point being is that having a driver in the city, having your driver know English – and we’ve all experienced this – is tremendously helpful in giving directions and telling them where to go and for safety purposes. I think those kinds of policies in this case, you could easily make it legitimate even though, by the way, Uber drivers aren’t considered employees in the United States.

MATT: Yeah, in the US – a topic for another day.

NASIR: By the way, did you hear that, in England, there was a case that found that Uber drivers had to be paid a minimum wage? They made this new class of workers were they’re not quite employees or independent contractors. It’s crazy.

MATT: Interesting.

NASIR: Yeah, I don’t know how that can affect what’s going on over here because there’s no such thing as a – I can’t remember the term they use but some kind of – worker class of citizen.

MATT: Yeah, I don’t see that working out here either.
So, yeah, how can you go about it? well, you just touched on safety justification behind having some sort of English – don’t want to say English-only policy – I’ll say restrictive policy to not speak in English. I don’t know how you want to word it but safety justifications, other business justifications, effectiveness in the rule in carrying out the purpose behind those justifications and then the English proficiency of workers affected by the rule. I mean, again, if somebody would come to us and ask, “How can I make this English-only policy for my employees legal?” It’s a conversation that’s not going to be able to be sorted out with a couple of red lines and an agreement, I don’t think.

NASIR: No, not at all. There’s a lot of nuance to it. It comes down to how you implement the policy and one policy for one business may not be compliant with another business. That kind of demonstrates how using boiler plate employment manuals and copy and pasting agreements often don’t work and just create more problems than anything.

MATT: Just generally speaking, there are definitely employment laws out there where the employer has to provide certain information to the employees in their language that they speak.

NASIR: If you’re employers of certain sizes, depending upon the state, depending upon the language they speak, this is in California among other states that, this also applies if you negotiate. We’re getting a little off tangent here but, for example, if the manager or the hiring manager speaks Spanish and all the negotiation discussion was done in Spanish and then you hand them over an English contract, that’s not appropriate. There are laws that protect those types of situations where you may have to actually have the actual contract translated into Spanish, et cetera.
Again, it just kind of elaborates more in some of these nuances of when you’re dealing with other cultures and language. I kind of wanted to talk about this topic a little bit because of what’s going on in the nation right now and the topic of immigration. It’s a common topic to come up very often when you have an employment force that is not of the same national origin as the owner which happens often.

MATT: Right. In the year 2000…

NASIR: Sixteen years ago, yeah.

MATT: Yeah, a lot has changed. Approximately 45 million Americans spoke another language than English in the home. That has to have just dramatically increased since then.

NASIR: There’s no doubt and that actually is the number that EEOC uses. I don’t know why they haven’t updated that but, yeah, sixteen years, yeah, I imagine that’s increased quite a bit.

MATT: Yeah, for sure.

NASIR: Anyway…

MATT: Thanks for bearing with us. A little bit rusty but, you know, we’ll hit our stride again by the end of the year.

NASIR: Yeah, it was a nice month off. We didn’t tell them why. We were going to tell them as a surprise.

MATT: Oh, yeah. We left that cliffhanger. I guess the appropriate thing to do would be to bring that, usually, when there’s a cliffhanger, it gets brought up immediately at the beginning of the next season.

NASIR: We should have.

MATT: We’re spending a lot of time developing our second podcast – Legally Sound Smart Dads.

NASIR: Smart dads. That’s true. Both of us had baby daughters. That sounds weird. My wife and I had a baby daughter and Matt’s wife and he also had a baby daughter within a couple of weeks of each other which was a fun coincidence for us. Also, it turned out perfectly, in some ways, because it was staggered because we were a little worried that it was going to happen right after each other and Pasha Law would be closed down for a little bit but we managed to push through.

MATT: Yeah, we lucked out so keep on moving on.

NASIR: Yeah. All right, guys. Thanks for joining us, everyone!

MATT: Yeah, keep it sound and keep it smart!