Best Ohio National Origin Discrimination Lawyer Answer: Can my boss write me up for speaking Spanish at work in violation of the English only workplace policy? My co-workers and I are Hispanic and we are told we cannot speak Spanish to each other at work; do I have a right to sue for National Origin discrimination? What should I do if I was fired today for speaking Russian on my break?
As you may already know from our employment discrimination attorneys‘ previous posts, national origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 and Ohio’s R.C. § 4112.99. (See Naming Calling Leads To National Origin Discrimination Payment; National Origin Discrimination Claims Can Be Based On Reverse Discrimination; I Wasn’t Promoted Because I’m From Another Country. Best National Origin Discrimination Lawyer Advice!; National Origin Discrimination: Nicknames, Name Changes And Pseudonyms For Telesales Employees).
Title VII and similar Ohio employment discrimination laws makes it an unlawful employment practice for “an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color… or national origin.” With diversity in the United States on the rise comes with the issue of how to handle diverse populations who speak different languages in the workplace.
One of the methods many employers use to handle diversity in the workplace is to institute an English only policy at work. Our employment discrimination lawyers have blogged about this before, but it is worth revisiting. (See Top Nation Origin Discrimination Lawyer Reply: Can My Boss Force Me To Speak English At Work?). English only policies require employees to only speak the English language at work during the course of the workday. Many employees who are not native to the United States may find this policy very difficult to live with and are in fact the intended target of an English only policy. Could an English only policy violate Title VII of the Civil Rights Act of 1964? The answer to this question is dependent upon why the rule exists and how it is applied by the employer. An English only policy in the workplace violates Title VII of the Civil Rights Act of 1964 if the employer cannot provide a business justification for the policy.
Let’s walk through an example to figure out how an English Only policy would be interpreted by courts under Title VII. Joe Smith owns Joe’s Suggestion Box, a company that handles customer complaints for different consumer production corporations such as KitchenAid and Black and Decker. Consumers call Joe’s Suggestion Box to submit complaints and obtain reimbursements for bad appliances. Joe has a lot of employees who are from South America and they all speak Spanish as a primary language. His employees would routinely take breaks in the break room speaking Spanish and often call home during their break time to talk to family members in Spanish. Joe, concerned customers may not understand anything the employees are saying, institutes a policy requiring every employee to speak English only from the moment they walk on the premises until after they have left their shift. Many of the employees are upset because the policy does allow them to speak Spanish during their lunch break or talk to their family over the phone in Spanish. Is the English only policy unlawful under Title VII?
Well, yes and no. Joe’s English only policy has a business justification— the telecommunication company requires his employees to interact with customers who only speak English. Certainly if your only job is to talk on the phone, you should communicate with a method that the majority of customers can understand. What a court may find unlawful about his policy is the fact that employees are not allowed to speak in Spanish in the lunch room or during their break time. Employees are not on the clock at this time and they are not interacting with customers. Requiring them to refrain from speaking Spanish during the break does not have any relationship to Joe’s business whatsoever. To stay in bounds with Title VII, Joe should change his policy to make allow employees to speak all other languages during lunch breaks and break time.
The national origin discrimination case brought in Pacheco v. New York Presbyterian Hosp. is illustrative of this evaluation. In this case, the United States District Court for the Southern District of New York provided a good, but lengthy analysis of this situation:
the Supreme Court has observed that “[j]ust 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, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). As the Supreme Court has put it, 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.” Id. Thus, for example, the Supreme Court has suggested that the striking of potential jurors on the basis of language, could, in certain circumstances, be a “pretext for racial discrimination.” Id. at 371-72, 111 S.Ct. 1859; accord 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”). Consistent with this notion, courts have recognized that an employer’s English-only policy can, in certain circumstances, support a Title VII claim of racial discrimination. See, e.g., Maldonado v. City of Altus, 433 F.3d 1294, 1304 (10th Cir.2006) (noting that “English-only policies are not always permissible; each case turns on its facts”), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) (refusing to “foreclose the prospect that in some circumstances English-only rules can exacerbate existing tensions, or, when combined with other discriminatory behavior, contribute to an overall environment of discrimination”); Roman v. Cornell Univ., 53 F.Supp.2d 223, 236 (N.D.N.Y.1999) (“A speak-English instruction may form the basis for an inference of national origin discrimination.”).
Critical to evaluating the propriety of a language-restriction policy under a disparate treatment theory, as in any such employment discrimination case, is whether the employer’s practices reflect an intent to discriminate on the basis of the classifications protected by Title VII, including race and national origin. In conducting this analysis, the courts consider, among other facts, whether there is evidence that the employer, in addition to adopting an English-only policy, has exhibited other forms of racial or ethnic hostility. See, e.g., Spun Steak, 998 F.2d at 1489 (noting that English-only policies in conjunction with other discriminatory conduct can “contribute[ ] to an overall environment of discrimination”); Brewster, 447 F.Supp.2d at 351 (holding that there was sufficient evidence of discrimination where employer made comments, such as, “Speak English. Go back to your own country if you want to speak Spanish. You’re in our country.”); Velasquez, 88 F.Supp.2d at 262-63 (noting that a “no-Spanish” policy “could be used to disguise a discriminatory motive”). Courts also have distinguished between various types of language-restriction polices, being more forgiving of those that apply only to work-related communication and to bilingual employees. See, e.g., Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1170-71 (10th Cir.2007) (upholding policy prohibiting employees from speaking Spanish while on the job and during job-related discussions, but permitting Spanish conversations during breaks or during non-job related discussions); Maldonado, 433 F.3d at 1307-08 (suggesting that an English-only policy, if applied at all times to all employees regardless of activity, could be discriminatory); Gloor, 618 F.2d at 270 (noting 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. However, the language a person who is multi-lingual elects to speak at a particular time is by definition a matter of choice”).
Thus, the strength of Plaintiff’s case is not evaluated on a broad analysis of English-only policies in the workplace. The EEOC, for example, “presumes, subject to rebuttal,” that English-only policies “blithely enforced at all times [and] places in the work environment” violate Title VII. Montes, 497 F.3d at 1171 (citing 29 C.F.R. § 1606.7(a)). But, the EEOC guidelines also provide that “[a]n employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.” 29 C.F.R. § 1606.7(b); see also Cosme v. Salvation Army, 284 F.Supp.2d 229, 239 (D.Mass. 2003) (applying § 1606.7(b)); Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349, 1357 (S.D.Fla.1997) (upholding English-only policy as being consistent with EEOC guidelines where employer established business necessity). Given the EEOC’s position, it should not be surprising that Plaintiff has failed to identify a single case in which a court upheld a Title VII claim in the face of a summary judgment motion where the language policy involved work-related communications by bilingual employees and the policy was found to further a legitimate business purpose. See Roman, 53 F.Supp.2d at 237 (“All decisions of which this Court is aware have held that English-only rules are not discriminatory as applied to bilingual employees where there is a legitimate business justification for implementing such a rule.”).
In this case, even if the Court assumes Plaintiff has made out a prima facie case, Plaintiff’s case fails because he has not offered enough evidence to dispute Defendant’s legitimate, non-discriminatory reason for the English-only practice ARRA followed. To begin, the Court notes that the practice at issue was not a blanket prohibition against any non-English conversations by employees in the ARRA unit. Instead, the undisputed evidence is that Votta, who does not speak Spanish, asked Plaintiff, who is fully bilingual, on several occasions to speak English when in hearing range of patients. There is no evidence that Plaintiff, or any other ARRA employee, was barred from speaking Spanish during breaks or when not near patients. In fact, Plaintiff admits that he spoke Spanish to his colleagues every day while at the ARRA, and, on occasion, was asked to help communicate with Spanish-speaking patients. This undercuts any claim of bias against Hispanic employees. See Long, 894 F.Supp. at 942 (noting that the fact that employees were encouraged to speak Spanish when necessary makes “even more credible” the justification for a limited English-only rule). Moreover, there is no evidence that Votta or any Hospital supervisor or employee made any discriminatory comments, or that Votta (or any other supervisor) selectively enforced the practice of speaking English near patients, either among the employees or on the basis of any particular language. And, notably, Plaintiff was not disciplined in any way for any limited number of instances in which he spoke Spanish while on the job.
On the other hand, Defendant has offered ample evidence that demonstrates a valid business reason for the practice. First, Defendant notes, and Plaintiff does not dispute, that several patients had complained about feeling ridiculed by ARRA employees who were not speaking English in their presence. Thus, Defendant contends that the practice of requiring employees to speak English to and around patients was consistent with Defendant’s goal of treating all patients with respect. Second, Defendant notes that it was far easier for Votta and other supervisors in the ARRA, who did not speak Spanish, to properly supervise and evaluate Plaintiff if he spoke English around and to them. Plaintiff does not contest the factual predicate for these claims; nor does he offer any evidence that Votta and other supervisors allowed other employees to speak any languages other than English under similar circumstances. Given this undisputed record, the case law supports Defendant’s claim of business necessity.
As is anything in the law, there are no clear cut answers. Your issues are going to be very specific to your situation. If you feel that your employer is discriminating against you based on your national origin (Mexican, Puerto Rican, Palestinian, Syrian, Asian, Indian, or Russian), you may have a legal claim. To find out if you have a legal claim for national origin discrimination, your best option is to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a national origin discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them.
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