English-only Policies Can Translate into Problems for Employers

The policies are legal when companies can make a case for English as a business necessity. That's a tricky definition. Just ask a casino that required its housekeeping staff to speak only English, and wound up paying a $.5 million legal settlement.

By Cindy Waxer

early five years ago, Lorraine Ramos was hired to work as a housekeeper at the Colorado Central Station Casino. At the time, her husband, Jorge Flores, worked the night shift at the 50,000-square-foot gaming establishment nestled in the small town of Black Hawk. But what began as a convenient work arrangement ended in anger, humiliation and a million-dollar legal settlement.

Shortly after Ramos was hired, the casino’s human resources director ordered the housekeeping manager and supervisors to enforce a blanket English-only language policy in the predominantly Spanish-speaking housekeeping department. Any housekeeping employees who uttered so much as a word in Spanish were to be given a written warning or fired outright.

The new rule posed problems for Ramos and her monolingual, Spanish-speaking husband. "Just to say good-bye, either my husband would have to follow me outside or we’d have to speak in the housekeeping closet, which was crazy," Ramos recalls. "We were afraid that if they caught us even saying ‘adios,’ we’d get in trouble."

Matters worsened. Senior-level managers and non-Hispanic casino employees soon began shouting "English, English" at the Hispanic employees when encountering them in the halls. Humiliated and verbally harassed, a group of Spanish-speaking housekeepers at the casino, including Ramos and Flores, took their plight to the U.S. Equal Employment Opportunity Commission. The EEOC filed a class-action suit on behalf of the casino’s angry housekeepers in March of 2001. Six months ago, the Colorado Central Station Casino was ordered to pay $1.5 million for subjecting its employees to unlawful English-only rules.

The judgment was heralded as a victory for foreign-language-speaking workers everywhere. But it also underscored how today’s controversial English-only policies are dividing America’s ethnically diverse workforces into warring factions. Last year, the EEOC received 228 charges challenging English-only policies in the workplace. Ernest Haffner, an attorney adviser to the EEOC, expects that number to grow as more languages are spoken in the workplace. The U.S. Census Bureau reports that the number of Americans who speak English poorly or not at all has increased 65 percent since 1990 as immigration rates rise.

But while hefty settlements might slow the spread of English-only policies and prevent discriminatory workplace practices, many argue that these rules also serve to unite and protect people of different origins. Mauro E. Mujica is CEO of U.S. English, a citizens’ action group with 1.7 million members whose lobbying efforts include petitioning the U.S. government to make English the official language of the United States. An immigrant himself, Mujica believes that English-only policies "encourage communication and prevent people from being suspicious of other people speaking another language."

Even the EEOC makes allowances for English-only policies under certain circumstances. According to agency guidelines, requiring employees to speak English can conflict with Title VII of the Civil Rights Act, which prohibits discrimination based on national origin. The EEOC is the federal agency responsible for enforcing Title VII. However, the agency’s guidelines also state that English-only rules are permissible when: a) speaking a common language is imperative for safety, and b) it’s a matter of business necessity, for example, if a person’s lack of English skills would have a detrimental effect on job performance.

"There’s a certain utility in not having to remember in what language to yell, ‘Look out!’ "

English-only policies for the sake of safety are common sense, says Jim Boulet, executive director of English First, an organization whose 150,000 members lobby for a broad range of issues on English language policy. "There’s a certain utility in not having to remember in what language to yell, ‘Look out!’ " Boulet says. He adds that speaking a common language such as English should be made a top priority in dangerous work environments.

Mike Hansen, a supply utility worker for the Military Sealift Command, a branch of the U.S. Navy, agrees with Boulet. The MSC operates the cargo ships that supply Navy ships around the world with food, fuel, equipment, ammunition and medical supplies. Hansen, who works with his wife, Karen, oversees the storage and delivery of the Navy’s ammunition. It’s a dangerous job that calls for enormous attention to detail and clear communication, and he strongly believes that safety levels are constantly being compromised by his non-English-speaking crewmates. "There isn’t a day that goes by that I don’t have an issue with the language barrier," laments Hansen, who estimates that 75 percent of the ship’s workforce originate from the Philippines and are Tagalog speakers.

Weekly fire drills are complicated by confused crewmates who don’t know how to respond to supervisors’ commands. And many shipmates fail to understand instructions while performing significant tasks such as working on deck, loading heavy equipment, maintaining the ship’s engine-room machinery and handling satellite communications. Hansen says that although he and his wife have voiced their concerns to the ship’s superiors, their complaints aren’t taken seriously. "Most reply comments usually end up with ‘This is the way it is’ or ‘If you don’t like it’ or ‘There is nothing you can do about it,’ " Hansen says.

In one well-publicized case, Richard Kidman, owner of R.D. Drive-In, a burger joint in Page, Arizona, displayed a sign warning his employees not to speak the Navajo language after female workers accused male coworkers of sexually harassing them in Navajo. Workers complained and the EEOC investigated. Kidman was slapped with a lawsuit. The case is scheduled to go to trial next year.

"What is an employer supposed to do? He’s liable if the employees insult the other employees. He’s also now liable if he takes steps to prevent that.
It’s darned if you do and darned
if you don’t."

"What is an employer supposed to do?" Boulet asks. "He’s liable if the employees insult the other employees. He’s also now liable if he takes steps to prevent that. It’s darned if you do and darned if you don’t."

Selena Solis has little sympathy for the plight of employers caught in what Boulet describes as a catch-22. Solis is a public defender in Texas and a former attorney with the Mexican American Legal Defense and Educational Fund. She served as co-counsel in the Colorado Central Station Casino case with the EEOC. She says that English-only policies shouldn’t be used to monitor harassment in the workplace. Instead, offending parties should be fired or brought to the attention of legal authorities. Nor does she agree with using "business necessity" as a defense for establishing an English-only policy in the workplace. Although the EEOC’s guidelines state that English-only rules can be enforced for business justifications such as "supervision or effective communication with customers," Solis points out that a large percentage of non-English speakers work at menial jobs and aren’t communicating with customers.

"Where we have been seeing these English-only policies take shape is in low, unskilled low-wage work environments on the assembly lines, among janitors, among housekeepers," Solis says. "It’s just hard to accept the argument that there’s a business justification for that." She points out that non-English-speaking immigrants are a perfect target for employers that wish to discriminate using English-only policies. These employees are often poor and unaware of their rights, and are more likely to suffer in silence than to express their views, for fear of losing their jobs.

Employers interested in implementing an English-only policy would also be wise to know their rights as business owners. Peter Miscovich, a principal partner at Saratoga Institute, a human capital management firm, says there are steps that business owners can take to avoid future litigation. He suggests that employers document any and all language policies from the very beginning in clear and concise terms. In the event of litigation, business owners must be prepared to support an English-only policy by demonstrating that specific circumstances in the workplace necessitated the decision and that alternative resolutions were explored and exhausted. Employers also should communicate to employees the consequences of breaking the rule in no uncertain terms, and clearly specify whether there are exceptions during lunch and breaks.

"Trouble arises when you have made arbitrary decisions that aren’t properly validated and allow for the risk of litigation," Miscovich says. "That can be avoided with clear communication and documentation." Despite the best-laid plans, the controversy surrounding English-only policies shows no sign of disappearing. With non-English speakers making up a growing component of America’s workforce--2.3 million new immigrant workers since 2000--there will be increased room for acts of discrimination, personal humiliation, safety hazards and business risks. It’s a reality that employees and employers alike must learn to accept.

As Solis says, "Employees are becoming extremely translingual, and that’s a new form of the workforce whether employers like it or not."

Source: Workforce Management, January 2004, pp. 57-59
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