The EEOC has recently filed an action in the Western District of Wisconsin entitled EEOC v. Baumann Farms, LLP alleging that the employer has an “English-only policy that discriminates against non-English speaking Hispanic employees based on national origin” in violation of Title VII. The complaint does not offer much detail on what’s in the policy—EEOC only alleges that the policy requires non-English speaking employees to speak English in the employer’s presence or over radio/phone communications. The employer had not yet answered the complaint, so it’s too early to tell whether the employer’s English-only policy is structured in such a way that actually violates Title VII. The EEOC’s allegations regarding the English-only policy are tacked on to a complaint much more focused on sex discrimination and harassment. However, the newly-filed action is a good reminder that employers need to be aware of the potential pit falls in language-restriction policies because the EEOC may be looking for and scrutinizing English-only policies during investigations of other types of discrimination.

Title VII prohibits discrimination on the basis of national origin. The EEOC views English-only policies with suspicion regarding national origin discrimination “because an individual’s primary language is closely tied to his or her cultural and ethnic identity.” The EEOC will presume that a policy requiring that English be spoken “at all times in the workplace” violates Title VII. Additionally, the EEOC will scrutinize English-only policies when the employer has failed to consider whether there is a good business reason for the policy. Expect the EEOC to dig into job duties and question whether those duties require an ability to speak English. Context regarding the languages spoken by the employer’s customers, vendors, and other employees may also come into play when the EEOC is investigating language-restriction policies.

Employers with English-only or other language-restrictive policies should review their policies and practices to ensure they do not run afoul of Title VII. Employers should analyze the need for such policies, which can include customer service needs, health and safety, and efficient business operations. The policy should also be reviewed to ensure it’s tailored to apply only to the workers, work areas, circumstances, times, and job duties necessary to address the identified business reasons for the policy. Employees should be notified of the expectations and limitations of any language-restriction policy, and the consequences for violations of the policy. Finally, employers should also be cognizant of how the policy is being enforced in practice. For example, if the written policy only requires English to be spoken at workstations or while an employee is on the clock, then managers should not discipline employees for speaking other languages while in the lunchroom or taking a break.

Consideration of whether a language-restrictive policy violates Title VII is highly circumstantial. Fox Rothschild’s Labor & Employment attorneys are available to conduct a compliance review of any existing or contemplated employment policies. Should you find that your business is facing an EEOC investigation or other challenge related to an English-only or language-restrictive policy, we recommend you consult an employment attorney as early in the process as possible.