Testing 'English Only' Rules Employers Who Require Workers to Speak English Can Face Discrimination Suits
By Miriam Jordan
The Wall Street Journal, November 8, 2005; Page B1

Hispanic employees at a Sephora store in New York say their ability to speak Spanish was crucial when they were selling lipstick and eye shadow to well-heeled Chilean and Argentine tourists. But they say that if they uttered any Spanish to each other, even in the lunch room, they were reprimanded by managers.

As immigrants flock to the U.S. in record numbers, the nation's work force is becoming more multilingual. But some companies have responded by creating ad hoc language policies that can land them in court.

That's what happened to Sephora USA. Five employees filed a complaint against the division of luxury-goods maker LVMH Moët Hennessy Louis Vuitton with the U.S. Equal Employment Opportunity Commission in 2003. The commission, in turn, filed a lawsuit on behalf of the five and a class of Hispanic employees in a Federal District Court in Manhattan.

'This is the type of double standard we want to prevent,' says EEOC attorney Raechel Adams. 'Hispanic employees are expected to speak Spanish with customers but at the same time are reprimanded for speaking Spanish in their free time.'

Sephora says it 'considers the EEOC's allegations to be groundless.' It denies that it ever had 'an 'English-only' rule,' but it says it does expect workers to speak English to customers unless the customer wishes otherwise. In September, a judge ruled that the company's written policy on English usage is 'permissible,' but the case is still pending on the issue of whether the employees were discriminated against when they were told not to speak Spanish.

Cases involving English-only policies are mounting at the EEOC, the federal agency that enforces antidiscrimination laws in the workplace, as well as at private law firms across the country. Complaints filed with the agency jumped to 155 in 2004 from 32 in 1996. More grievances -- they usually involve Spanish -- are likely being handled by private attorneys. Still, most instances of language discrimination go unreported because employees fear retaliation, such as job loss, or, if they are illegal immigrants, even deportation.

In the 2000 census, 47 million people -- 18% of all U.S. residents -- reported speaking a language other than English at home, up from 14% in 1990. To accommodate immigrants, many states offer driver's license tests, hospital questionnaires and election ballots in foreign languages. Because of the increase in Spanish speakers, the U.S. Census Bureau is testing a bilingual questionnaire in preparation for the 2010 census.

But amid a heated national debate over what to do with 11 million illegal immigrants, employers may be feeling emboldened to crack down on those who speak Spanish, in particular, lawyers and civil-rights advocates say. They also say that language discrimination cases are emerging in states that have long absorbed immigrants relatively successfully, such as New York and Texas, they say.

Federal law doesn't prevent employers from requiring workers to speak only English if it is justified by business necessity or safety concerns, such as work in a hospital surgery room or an air-traffic control tower. But an English-only rule can get an employer in trouble if it's applied as a blanket policy, prohibiting workers from speaking another language during their breaks, for example, or when the language being spoken doesn't make a difference in the performance of the job. Workers who feel they are being treated unfairly can file a complaint with the EEOC, which then chooses whether to investigate, mediate or litigate the case. If merited, the EEOC takes legal action based on Title VII of the 1964 Civil Rights Act, which bans discrimination on the basis of national origin.

'Employers must understand that discriminatory English-only rules can hurt productivity, morale and ultimately their bottom line,' says Kimberlie Ryan, a Denver attorney who is litigating several cases.

But some businesses fear that English-speaking clients will feel alienated if too many employees speak a foreign language. Other companies worry that use of a foreign language by one group of workers can undermine overall morale by making other employees feel they are being slighted.

Highland Hospital in Rochester, N.Y., asked its housekeeping staff to stick to English after it received complaints from several non-Spanish speaking workers who 'were feeling ostracized by a group of Hispanic workers and [a] supervisor,' says Cindy Becker, the hospital's chief executive officer.

In July, the EEOC filed suit against the hospital and its owners on behalf of a group of Hispanic employees who say they were subjected to an English-only rule and disciplined for violating it. The suit seeks financial compensation for past humiliation and emotional distress. 'No one can argue that these janitors needed English to sweep the floors,' says Sunu Chandy, an EEOC attorney.

The hospital denies that it ever enforced an English-only policy. According to Ms. Becker, the Hispanic plaintiffs all speak English and were asked to communicate in a 'common language.' But the EEOC maintains that most of the claimants have limited English proficiency. The workers, who are still employed by the hospital, won't comment on the case while it's in litigation.

Groups concerned about preserving English object to multilingualism whether it's practiced in offices or on assembly lines. They believe it threatens the dominance of English by tacitly encouraging newcomers to retain their own languages and to avoid assimilating into American society.

'As this country becomes more diverse ethnically, it is even more important to have a common language than it was 50 years ago,' says K.C. McAlpin, executive director of ProEnglish, a group that lobbies to make English the official language of the U.S. The group is helping to finance the defense of at least two employers sued for insisting that English be spoken on the job.

But Ms. Ryan, the Denver attorney, says: 'This is not about whether people should learn English. It's about not using language as a weapon of harassment.' She says a large number of her clients require psychological counseling because of the emotional distress they suffer.

In March, Ms. Ryan reached a settlement with the Children's Medical Center in Dallas and the food-services company Sodexho Inc. on behalf of eight cooks and cafeteria workers at the facility. According to the complaint filed in Federal District Court in Dallas, the employees were subjected to a no-Spanish rule and harassed by the managers who had imposed it.

Juan Garrido, the lead plaintiff in the case, had been working at the facility for 18 months, preparing special meals for children with cancer, when a supervisor told him to speak only in English. When he declined, he says, he was warned that he was being 'insubordinate.' He eventually received a written notice that deemed him 'unprofessional' and 'unethical' for speaking Spanish. But Mr. Garrido, who speaks broken English, says that communicating with workers who spoke only Spanish was essential. 'We were making food for children with special diets,' he says in an interview.

Ultimately, the Guatemalan immigrant says, only eight of the 32 Hispanic kitchen staffers decided to seek legal recourse. The rest feared reprisal. To comply with a confidentiality provision, the parties declined to disclose the size of the settlement. The hospital declined to comment on the case.

Mr. Garrido, who is 29 years old, says he eventually quit his job at Children's Medical Center because the stress he felt at work was undermining his health. He has since taken a job as a cook at another Dallas hospital. There, he says, there are no restrictions on Spanish usage by the Latino kitchen staff.