English-Only Policies

By Anne Frassetto Olsen, ESQ.
Published: May 27, 2008

Employers these days are fortunate to have employees hailing from all over the world. In order to correlate a cosmopolitan staff with the business needs of the workplace, employers sometimes find it necessary to establish an English-Only Policy. Employers with fewer than five employees are not restricted in their ability to implement such a policy; however, the California Department of Fair Employment and Housing (FEHA) provides that employers of five or more employees may implement such a policy only if:

  • the language restriction is enforced because of a justifiable business necessity; and
  • the employer notifies the employees of the circumstances and the time that the English-only restriction must be observed; and
  • the employees are informed of the consequences of failure to comply with the policy.

The FEHA defines the term “business necessity” as an “overriding legitimate business purpose such that a) the language restriction is necessary to the safe and efficient operation of the business; b) the language restriction effectively fulfills the business purpose it is supposed to serve; and c) there is no alternative practice that would accomplish the business purpose equally well with a lesser discriminatory impact. In order to meet the “business necessity” test, the employer must be able to prove that the need for the English-Only Policy takes precedence over the employee’s desire to speak his or her mother tongue and is not being implemented for discriminatory purposes.

For example: The business necessity test cannot be met by an employer who requires an employee to speak English when he or she works in an office alone and cannot be heard outside that office; or in a situation where all of the employees speak the same language and have no contact with customers or patients who speak English.

If, on the other hand, the knowledge of English is a necessity because a particular job requires communication with clients or vendors who speak only English, the employer would be justified in enforcing an English-Only Policy during the time when that employee is actually working.

Employers would be hard-pressed to support a policy that requires their employees to speak English while they are on their legally-mandated rest and meal periods or while walking to and from their vehicles before and after work.

Prior to implementing an English-Only Policy, we recommend that employers analyze the jobs to which the policy would apply so that they can be certain that the policy is necessary, non-discriminatory and meets the business necessity test.