Say What? Is It Discriminatory To Require Employees To Speak English

Via Turley, the EEOC has charged Wisconsin Plastics, Inc., with discriminating against Hmong and Hispanics in violation of Title VII of the Civil Rights Act of 1964 for firing employees for not speaking English in the workplace.

EEOC Chicago Regional Attorney John C. Hendrickson stated that “Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable,. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

The EEOC said that the action was taken after relatively short interviews to judge the English ability of the employees. In 2009 the agency issued a controversial order making a workplace English rule illegal.

The English rule has been a hot button issue for a long time, as a facile way to use a putatively benign job requirement to conceal unlawful discrimination.  The story has some huge background gaps, such as why the company hired the people they are now accused of discriminating against in the first place if its purpose is to rid itself of the suspect class.  The flip side is that the company should have been fully capable of assessing their language skills at the time of hiring, rather than after they were hired.  But the issue is far larger than WPI.

The EEOC took the controversial position that an English-speaking requirement is presumptively discriminatory, thus placing the onus on the business to prove that it’s a bona fide occupational qualification.   Is it “required for the safe and effective performance of a job, [ ]or for the successful operation of the employer’s business”?  Notably, that customers prefer it does not constitute a BFOQ.

There are hard reasons to require an employee to be capable of communicating with his employer, such as safety and basic effectiveness in job performance.  Certainly, no one wants an employee to lose a hand in a machine because he can’t understand how to use it properly.  Similarly, no one wants an employee answering telephones who can’t communicate with callers so that his core job function is utterly pointless.

But there are softer reasons as well.  The time it takes for a supervisor to explain a job to an hourly worker is money lost in translation.  The explanations tend to be “dumbed down” to facilitate cross-language communication of necessity, and may fail to suffice to the level of quality expected and needed.

Then there are issues of non-core communications. I had some guys at SJ World Headquarters last week fixing some broken slates on the roof, none of whom spoke English. They walked along the Yankee gutters to do their repairs. While the repairs appeared fine, walking along the Yankee gutters was a big problem, as they aren’t intended to hold a man’s weight and can be easily damaged. I tried to explain to them that I didn’t want them doing so, but they smiled, said “yes,” and continued to do exactly as they did before.  I was not pleased, but their core job was to repair slates, and that didn’t require them to speak English.

The question of English in the workplace (or Spanish, for example, in a workplace with different needs) has good reason to be subject to hard scrutiny.  It’s a superficially reasonable requirement that can be easily used to conceal discrimination.  The problem is that determining what constitutes a BFOQ is often a matter of personal sensibilities, whether someone more attuned to the interest of ending discrimination sees the requirement as truly necessary as opposed to the employer, whose interest is in running a successful business.

For the employer, some have no qualms about using labor that may not have the ability to speak English, as immigrant labor tends to be less costly and more available.  There are a great many low wage jobs, unpleasant jobs, that Americans tend not to want.  Non-English speaking workers are happy to take the jobs, and employers are happy to have them to keep costs down.

However, others see this scenario as abusive toward non-English speaking workers, who may desperately need employment and find themselves forced to take low-wage jobs under harsh working conditions.  Of course, but for this reality, the costs of goods and services would make many businesses untenable.  It’s a delicate balance under the best of circumstances.

For the employer who believes that English-speaking (or Spanish-speaking, if that’s the need) best serves to facilitate the effective performance of the job, should someone at the EEOC stick their nose in and decide how the employer should run his business?  Should it really be up to someone who has little clue of a business’ needs, nuances, and efficacy to dictate the qualifications for a position?  Will the EEOC be there when a business fails for having been forced to hire or retain a workforce that can’t serve to perform the job, satisfy the customers, fulfill the quality demands of the employer?

No one suggests that discrimination on the basis of national origin (or any other suspect classification) is acceptable.  But given the influences of the marketplace for human capital, should a government agency trump an employer’s discretion when it comes to what the employer wants of his employees?

In 1964, when Lyndon Johnson pushed the Civil Rights Act through Congress, this was a different country, deeply steeped in discrimination to the extent that businesses normally cut off their nose despite their face when it came to refusing to hire workers based on race, ethnicity, national origin, gender and other immutable and irrelevant factors.

To some extent, we gotten beyond the worst of it, though discrimination unquestionably remains.  Is it still worth the cost to a viable business, a viable economy, to lump the ability to communicate into the list of presumptive discrimination?  Probably, but it’s also time to give greater latitude to employers to fix the communication requirements of employees.  No matter how deeply one wants to end discrimination, the inability to communicate creates a stranglehold on business that can’t be denied or ignored.  In the quest to end discrimination, we can’t end the ability of businesses to function effectively as well.

12 thoughts on “Say What? Is It Discriminatory To Require Employees To Speak English

  1. Steven Warshawsky

    In my opinion, you concede far too much ground when you agree with the EEOC that English language requirements “can be easily used to conceal discrimination.” This perspective underlies the very idea that the EEOC should be empowered to substitute its judgment for the employer’s. As you note, there are many valid reasons to require employees to speak English in an English speaking country in which English is the language of everyday life and commerce. This is not national origin discrimination or any other kind of invidious discrimination that should justify government interference in the marketplace and subject employers to punitive enforcement action. But by this point in our nation’s history, the governmental juggernaut is out of control and impossible to stop.

    1. SHG Post author

      It’s a very hard line to draw. I tend to agree with you about the substitution of judgment, but then I remember too well the pervasive discrimination hidden behind benign excuses. It’s hard to conceive of why people engage in rank discrimination, but they do, and that’s the EEOC’s mandate to end. This is a very difficult issue.

  2. Robert L. Abell

    I’ve practice employment discrimination law for 25 + years now. First, EEOC, in my experience, is a cautious and not overreaching agency, which is not to say its perfect. Second, it would be the very, very, very rare case in which a provable case of unlawful discrimination could arise from the circumstances described here; the examples given by Mr. Greenfield are a few of the reasons why. On the other hand, prior to EEOC filing suit the employer undoubtedly had more than ample opportunity to offer such reasons and explanations; it would appear therefore that it did not or did not do so credibly. My experience has been that EEOC is too willing to accept employer’s explanations, even when they are senseless or contradicted by actual evidence. This case is so unusual and rare that it is a poor vehicle to draw from general inferences or conclusions.

    1. SHG Post author

      There are a lot of gaping holes in this story, making it a very poor vehicle indeed. But even with the EEOC being a cautious agency, its presumption of an English speaking requirement being discriminatory serves to chill employer choice. As we are all well aware, the legal reality at the EEOC’s actions and the risk aversion of employers to potential suit need not align.

  3. JR

    In this area, I think it’s important to distinguish the workplace English rule from an English fluency requirement. As I understand it, the EEOC workplace English rule is about firing workers for speaking another language while at the workplace. That is a different issue from requiring that workers are able to speak English when necessary. I couldn’t find the 2009 “controversial order” that Turley refers to, but the policy he quotes in his post is an English-only rule, not an English-ability rule. I’d argue that it’s harder to find non-bias reasons for rules that discipline workers for speaking other languages at any time while at the workplace.

    Of course, the EEOC lawyer lumped all of the issues together, and this case seems to be an English-ability case (although the real issue seems to be the ten-minute ‘fluency test’ which smells fishy at first sniff).

    1. SHG Post author

      Yes, it’s all presented as a mash-up, but it would appear (even though Turley’s post suggests otherwise) that what’s really at issue is English-Only, not English-ability.

  4. KheSanh_vet

    In the first place the company hired these people to perform a function, presumably those functions being performed when they were fired. It is generally not difficult to note those for whom American English is not a native tounge [some parts of W VA, VA, NC, SC, FL, GA, KY, TN, MS, AL, LA, and TX excluded ].

    What changed between firing and hiring? Did the hired folks one day suddenly remove the disguises, à la Men In Black ( the opening scenes ), they had been wearing? Perhaps some local eager beaver brought some ole’ fashioned pre-1964 pressures upon the employer (while some folk assure us ‘those days’ are over, I would submit that they are not and may in fact never be over).

    Bottom line, this state of affairs cries out for the attentions of Sir Scalia, the Younger.

    In the meanwhile I would be happy to purchase the rope AND boil and stretch it also: all pro bono. Sooner or later we will get to use a great deal of it so I am being at least enviro-friendly.

    This is a lay-perspective.

  5. john Barleycorn

    Hvem skal du ringe neste gang dine taklekkasjer?

    And here I thought everybody knew that the Yankee Gutter Installers Guild warentee explicitly states that if the gutter is installed on a slate roof only female Bolivian orphans raised by Norwegian speaking New Zeland nuns are qulified to work on or around the gutter after completing a thirty year apprentiship in an approved Pennsylvania slate quarry followed by a ten year in the field Yankee Gutter on slate instillation apprentiship.

    Bummer for you esteemed one. Sounds like your gutters are trashed and you are shit out of luck on the warentee. Plus, you missed out on the live tunes the aprentices have to rock out live on the pan pipes and twelve string while on the job site durring lunch breaks. I hope you learned your lesson by going outside the qualified guild.

      1. John Barleycorn

        That’s right female. Unless you happen to have your Yankee Gutters installed through and on top of one of those fake slate wanna-be roofs made out of some sort of vinyl chloride product trying to pass itself of as slate.

        One of those vinyl chloride roofs would be the new old school as they call it in the roofing trades these days, and although males don’t make nearly the roofer a spatial orientated, venting conscious, and industrious female does males are in fact accepted into the application specific guilds around vinyl chloride roofing materials these days.

        You remember the days when there was no “new” in “old school” don’t you? Back when slate was slate and when you got in a jam chances are you had to hire a lawyer from out of town because every lawyer in town had this, that, or some other conflict preventing them from representing you. Heck, there just were not enough lawyers around when you needed one let alone roofers.

        Back then anyone who passed the BAR exam was legit. But these days you have to go to law school and have that paperwork in order to even to take the BAR exam (I heard some roofers talking about their future just the other day when that blast from the past came up in their conversation).

        Some things don’t change for the better.

        Case in point; exposing future government and non-governmental lawyers to law professors is what makes these sort of post even possible in the first place. Not to mention being foolish enough to think that just because the government has forced some segments of the Yankee Gutter Installers Guild under ground that hiring any old Jack or Jill with a three star or better Angie’s List endorsement to work on a slate roof around Yankee Gutters is a good idea.

        Relax you don’t have to be a an orphan or female to rock out with a pan flute and a twelve string.

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