Going Too Far on ‘English Only’ Invites Trouble for Employers

Businesses are likely to open the door to national origin discrimination claims if they interpret a recent Trump executive order to enforce English proficiency rules for commercial truck drivers as a green light for language-restriction policies writ large.

The April 28 order was issued just a month after the president designated English as the country’s official language. While the orders don’t directly affect federal anti-bias law—and in the case of the trucking memo reinforce existing law—employers should be cautious of excessively broad workplace requirements that unfairly disadvantage employees who don’t speak English as their first language, employment attorneys said.

Non-native English speakers’ primary language is often tied to their cultural and ethnic identity, so workplace rules that lack a legitimate business necessity and implicate the terms and conditions of employment can give rise to discrimination claims under Title VII of the 1964 Civil Rights Act.

Strict English-only rules for truck drivers not related to safety or business necessity “will certainly face scrutiny and legal challenge under Title VII and state anti-discrimination laws, as such a requirement may disproportionately impact workers from non-English speaking backgrounds,” said Caroline J. Berdzik, co-chair of Goldberg Segalla’s employment and labor practice group.

Litigation arising from restrictive language rules can be costly for employers, as shown by several class action settlements over the years in national origin bias lawsuits brought by the US Equal Employment Opportunity Commission.

These include a $2.6 million agreement with La Cantera Resort and Spa in Texas, a $975,000 deal with Delano Regional Medical Center in California, and most recently, $276,00 with Total Employment and Management in Washington state.

As part of the settlements, the companies agreed to revise their policies and train managers on anti-bias laws, particularly those addressing language discrimination.

‘Much Ado About Nothing’

Trump promoted his English language designation as an effort to foster “unity” and “cultivate a shared American culture.”

English is already the official language in more than 30 states, but critics argue that Trump’s order will affect vulnerable communities because it revoked a Clinton-era directive that provided recipients of federal financial assistance with translation and interpretation services.

Meanwhile, attorneys are unsure of the practical effect of this week’s order mandating English proficiency testing and enforcement policies for commercial truck drivers. A violation could put drivers “out-of-service,” the order said, citing safety concerns.

Federal rules already require these drivers “to effectively communicate, meaning they have basic English skills,” said Jonathan Crotty, a partner at management-side firm Parker Poe Adams & Bernstein LLP.

“The executive order is, in some ways, a much ado about nothing,” said Gary M. Gilbert, principal of Gilbert Employment Law PC.

Trump’s orders dovetail, however, with the EEOC’s new enforcement push against companies that show a bias for foreign workers—including visa holders—over US citizens. The commission’s Acting Chair Andrea Lucas has called it a “large-scale problem.”

Gilbert, a former EEOC administrative law judge, said the latest EO will likely discourage employers from hiring non-native English speakers.

EEOC Guidance

Data from the US Census Bureau show that the number of linguistic minorities and bilingual citizens has steadily risen over the years. That makes it increasingly important for employers to approach language policies thoughtfully to avoid unintended consequences, attorneys said.

But for now, courts and the agency are in agreement about overly broad English proficiency policies.

Language isn’t an explicitly protected characteristic under Title VII. But longstanding guidance from the EEOC clarified the legality of language-related work policies and established that workers’ primary language is often “an essential national origin characteristic.”

Title VII only allows for exceptions to restrictive language requirements that are narrowly tailored and require the employer to demonstrate a legitimate, non-discriminatory business necessity, the agency said.

Examples of potentially allowable business justifications include the need for an English speaker whose primary duties involve regular communication with coworkers or customers who only speak English, or overseeing emergencies to ensure safety and efficiency, attorneys said.

Courts have upheld additional scenarios.

The US Court of Appeals for the Tenth Circuit’s 2007 Montes v. Vail Clinic Inc. decision said that a worker may be directed to speak only English while performing their job, but allowed to speak their native language while taking a break.

But the appeals court also acknowledged that English-only rules can, in certain instances, create a hostile atmosphere for the worker and “may be used as a covert basis for national origin discrimination.”

“Nothing has changed in the law,” said Gilbert. Making certain workplace decisions based on a worker’s “accent or the language they speak can be evidence of intent to discriminate.”