Language, Power, and Identity in the Workplace: Enforcement of 'english-only' Rules by Employers

• Publication year: 2010

§ Fall/ Winter 2010-#10. Language, Power, and Identity in the Workplace: Enforcement of 'English-Only' Rules by Employers

Washington Seattle Journal For Social Justice
Volume 9, No. 1
Fall/ Winter 2010

Language, Power, and Identity in the Workplace: Enforcement of 'English-Only' Rules by Employers

Janet Ainsworth(fn*)

I. Introduction

In recent years, the American workplace has mirrored American society in its increasing ethnic diversity. Employers have responded to this diversity in the workforce in various ways, sometimes embracing it as a valuable resource for entrepreneurial success in the modern world, but other times seeking to suppress it in favor of maintaining a homogeneous workplace. While no one doubts that employers need to adopt workplace policies that help make the workplace efficient and safe, certain workplace rules and practices designed to achieve those goals may well have the effect of burdening some groups of workers in ways that are tantamount to employer discrimination. When the burden of workplace rules falls disproportionately on workers based on their race or national origin, the entitlement of the employer to impose such workplace regulations is limited by the existence of employee civil-rights protections. This article critically examines so-called 'English-only' regulations imposed by employers on their workers- rules requiring them to speak only English in the workplace on pain of being disciplined or even discharged for speaking in any language other than English.

The starting point for any discussion of employee rights in the workplace begins with civil rights law enacted to protect workers from discriminatory treatment. Workers are protected under Title VII of the Civil Rights Act of 1964 from employer discrimination based on their race or national origin. Thus, workers cannot be discriminated against in hiring or in the terms of employment on the basis of those legally protected characteristics or identities. However, the Civil Rights Act contains no express prohibition against discrimination in employment based on the language that a worker speaks. Even though an individual's language use may be strongly correlated with membership in a racial or ethnic group that is protected under the Civil Rights Act, the Act does not by its own terms provide legal protection from discrimination on the basis of language usage. This article will argue that courts should construe the application of 'English-only' rules as impermissible discrimination under the Act, and that their general failure to do so arises from ideological beliefs about language in society that fly in the face of what psycholinguistics tells us about bilingual language use and what sociolinguistics tells us about the relationship between language and social identity.

II. 'English-Only' Rules and Civil Rights

By 'English-only' rules, I am referring to employer-imposed rules on language use in the workplace that mandate exclusive use of English and impose sanctions, including being fired, on workers who fail to comply.(fn1) In some cases, even minor violations of the rule have resulted in workers losing their jobs. For example, in one case, an employee who uttered the three words in Spanish "_D6nde lo quieres?" ["where do you want it?"], responding to a request that he move something, was fired for using that phrase.(fn2) In another case, a worker's use of the Spanish phrase "no hay mas" ["there's no more"] led to his dismissal for violating an 'English-only' policy.(fn3) Workers have been fired in some instances for using their native languages even on breaks or at lunch as long as they were on the premises of the worksite.(fn4) In short, 'English-only' workplace rules constitute an ever-present danger for the worker whose native language is not English, where a single slip can cost a job.

'English-only' rules that restrict a workers' language use in the workplace appear to be of relatively recent origin, but the past three decades have seen increasing utilization of such rules with resulting litigation challenging their legality.(fn5) Some of the legal challenges to 'English-only' rules have come from fired or disciplined workers, and some from workers seeking preemptively to enjoin the prospective enforcement of the policy. The early federal judicial opinions regarding the legality of 'English-only' rules accepted the argument that policies penalizing workers for speaking foreign languages when those languages were associated with racial and ethnic identity was no different from direct discrimination based on race and national origin. one of the earliest federal cases considering the legality of 'English-only' rules related not to employment but rather to public accommodations. In Hernandez v. Erlenbusch, a Spanish-speaking patron filed suit to invalidate a tavern's policy of denying admission to patrons unless they spoke English.(fn6) The court in that case had no difficulty seeing that the rule amounted to unlawful discrimination against Hispanic customers. In recent decades, however, federal courts have rejected those early precedents and have increasingly held that 'English-only' workplace rules do not violate employees' civil rights.(fn7)

'English-only' policies have also been imposed in contexts other than the workplace. For example, prisons have begun to impose restrictions on prisoners' use of languages other than English, and courts have routinely upheld prison requirements that all mail sent or received by inmates be exclusively in English,(fn8) that all telephone calls between inmates and their families and friends be conducted in English,(fn9) and that all conversations between prisoners during their work assignments be in English.(fn10) Such bans are not confined only to prisons either. Some public school districts have started to impose 'English-only' rules on their students. In one such case, a school district forbade students from speaking any language other than English, even in their playground and lunchroom conversations, on pain of being suspended from school.(fn11) The federal district court upheld the school's right to punish children for failing to observe the ban on languages other than English.(fn12)

such cases in other contexts parallel the growing trend by employers to impose language restrictions on their employees, often in situations in which such restrictions appear counterproductive to sound workplace management. For example, in a Florida case, a child-welfare caseworker was disciplined for speaking spanish while interacting with a spanish-speaking client.(fn13) In another case, a doctor hired a bilingual office manager specifically for her ability to communicate with the doctor's spanish-speaking patients.(fn14) The office manager was fired for what her English-speaking supervisor apparently felt was an excessive use of spanish with their mainly Spanish-speaking clientele.(fn15) In yet a third case, a taxi service imposed an 'English-only' rule on its drivers across the board, notwithstanding the fact that one of its subsidiary units was called Taxi Latino, marketed to the local Spanish-speaking community.(fn16) In all of these situations, it is clear that 'English-only' rules actually undercut the efficient provision of services by the employees in question. Nevertheless, the appeal of these rules has been so irresistible to employers that they are sometimes imposed even when the rules make no business sense at all and, in fact, undercut business productivity.

Employees facing discipline and job loss under 'English-only' rules have challenged these policies in court, arguing that they are covert forms of otherwise impermissible discrimination. Obviously, employers could not lawfully punish or fire workers for being of a particular race or national origin. If 'English-only' rules were intended to allow employers to do indirectly what they could not do directly, then civil-rights protections would forbid employers from imposing them. Proving this kind of unlawful intent, however, is nearly impossible for the workers, since employers seldom couple the announcement of the restrictive language policy with an admission of racial or ethnic bias. Being unable to show overt discriminatory motives leaves the workers in the position of having to argue instead that, as enforced, the rule has a disparate impact on workers based on race or national origin. Since only those workers able to speak languages other than English will be at risk of violating the 'English-only' rule, the risk of punishment will inevitably fall mainly on racial and ethnic minority workers. If the workers can establish that the rule, regardless of its facial neutrality, has a disproportionate negative impact on workers based on race or national origin-protected categories under civil-rights law-then the legal burden shifts to the employer to justify the policy in question is based on a compelling business necessity.(fn17)

III. The Courts' Treatment of 'English-Only' Rules and the Realities of Bilingualism

Despite the common sense appeal of this reasoning, appellate courts have mainly rejected employee claims that 'English-only' rules constitute unlawful racial or ethnic discrimination, some even going so far as to deny that the enforcement of such rules can even be considered to have a disparate impact on workers based on race or national origin. While it is true that not every member of an...