One employer action that may, under certain circumstances, give rise to an employment discrimination claim is the implementation of a so-called “English only” policy. It has been reported, for example, that one North Carolina employer has implemented such a policy.
The EEOC takes the position that English-only rules “violate the law unless the employer can show that they are justified by business necessity.” It also provides:
A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.
How are such policies treated in New York? A Southern District of New York courtLopez v. Advantage Plumbing & Mech. Corp, No. 15-CV-4507 (AJN), 2016 WL 1268274 (S.D.N.Y. Mar. 31, 2016) summarized the law as follows:
Workplace language requirements do not necessarily constitute discrimination because [l]anguage, by itself, does not identify members of a suspect class. However, courts have recognized two situations where such requirements may constitute discrimination on the basis of national origin. First, courts have suggested that a policy prohibiting employees from conducting personal matters in languages other than English during breaks and other non-working hours may violate federal and state labor laws. … Second, courts have recognized that prohibiting certain non-English languages in the workplace while permitting others may constitute actionable employment discrimination. … However, the above analysis does not apply to … [New York City Human Rights Law] claims, which must be analyzed separately and independently from any federal and state law claims” and construed broadly in favor of discrimination plaintiffs. To state a claim for discrimination under the NYCHRL, a plaintiff must only show differential treatment of any degree based on a discriminatory motive. With respect to hostile work environment claims, even a single comment may be actionable in appropriate circumstances.
In Lopez, the court held that plaintiff did not plausibly allege hostile work environment claim under 42 USC 1981 or the New York State Human Rights Law, but permitted plaintiffs to amend their complaint to add hostile work environment claims under the broader NYCHRL.
Of course, every case requires an analysis of the specific facts in light of the relevant law.