A dentist had an English-only policy in her practice. Two of her Hispanic employees continued to speak Spanish to each other and around patients despite reminders of the policy. The dentist believed that other staff members and patients were uncomfortable when they could not understand what was being said in their presence. After numerous warnings - and with no change in their behavior - she terminated both employees. Both filed discrimination complaints against the dentist.
Considerations
The dental office has become more culturally diverse than ever before. As a result, many employees do not speak English as their primary language, and it is natural for them to switch from English to their native language at any given time.
The EEOC (Equal Employment Opportunity Commission) has declared that a blanket “English-only” rule in the workplace constitutes disparate treatment of protected groups of individuals and that it might create an atmosphere of inferiority, isolation, and intimidation, based on national origin.
The EEOC also has ruled that employers who require employees to speak only English leave themselves open to possible discrimination charges. National-origin filings with the EEOC based on English-only rules have increased 600 percent since 1996. One employer recently received a fine of $1.5 million.
In addition, Title VII of the Civil Rights Act prohibits discrimination against people on the basis of national origin, and some states have adopted similar provisions that prohibit English-only policies.
Solutions
Addressing the subject of foreign languages spoken in the workplace should be handled very carefully. Some situations where English-only policies are considered acceptable are:
• Where the rule is justified by “business necessity.” The employer may have to prove that the rule is truly necessary and serves an overriding legitimate business purpose.
• Where it would enhance the safe or efficient operation of the practice.
• In cooperative work assignments where a common language improves competence and effectiveness, such as when discussing technical issues.
• When communicating with patients and co-workers who only speak English.
• When it will enable a supervisor who speaks only English to monitor an employee whose job duties require communication with co-workers or patients.
If you choose to adopt an English-only rule in your practice, document the reasons for instituting it and what specific circumstances in the workplace led to the implementation. Communicate the new policy to employees and include it in your policy manual to prevent misunderstandings.
The policy should include the specific situations and conditions where speaking English is required (it is generally impermissible to limit employees to speaking English during their rest breaks or lunch periods) and notify them of the possible consequences for any violation. You also might consider translating the policy into your employees’ native language to ensure they understand it. Caution: Please note that if the employer neglects to notify employees of the English-only policy and then disciplines or discharges an employee, the EEOC may consider that an act of discrimination and rule accordingly.
When a violation of the English-only policy occurs, bring it to the individual’s attention and document the type of violation and any resulting disciplinary action you take. (Call our office and refer to our Employee Counseling Memo, Form No. 418). Save the memo in the employee’s file. This documentation is important because it warns the employee that any future infraction may result in discharge. With it, you can prove that the employee had been properly warned of the possible consequences if the situation is not corrected. The policy and the documentation serve as an excellent defense against any charge of discrimination.
Under certain situations and conditions, it is possible for you to require that employees speak only English in the practice. Unfortunately, the dentist in our case study who had implemented this relatively all-encompassing English-only policy was not successful in defending it. Although she reasonably felt that English was the official language of her business and the use of Spanish caused adverse reactions for other employees and her patients, the investigative agency ruled in favor of the terminated employees.
Bottom line: Exercise care when establishing an English-only policy. If it does not address the criteria described, it probably will not be found legal if tested in court.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
