“DON’T LET ME HEAR YOU SAY THAT AGAIN!”...2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 11-1 “DON’T LET ME HEAR YOU SAY THAT AGAIN!”

2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 11-1

“DON’T LET ME HEAR YOU

SAY THAT AGAIN!”

MANAGING A MULTILINGUAL WORKFORCE IN

CALIFORNIA (WITHOUT GETTING SUED)

Lisa C. Hamasaki – Ogletree Deakins (San Francisco)

Betsy Johnson – Ogletree Deakins (Los Angeles)

Ellen M. Papadakis – Astellas US LLC

U.S. Equal Employment Opportunity Commission

Facts About National Origin Discrimination

Whether an individual (or her ancestors) is from China, Russia, or Nigeria, or belongs to an ethnic group, such as Hispanic or Arab, she is entitled to the same employment opportunities as anyone else. EEOC enforces the federal prohibition against national origin discrimination in employment under Title VII of the Civil Rights Act of 1964, which covers private sector employers with fifteen or more employees, federal government employers, employment agencies, and labor organizations.

About National Origin DiscriminationIt is unlawful to discriminate against any employee or job applicant because of the individual's national origin. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics closely associated with an ethnic group. Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group. Examples of violations covered under Title VII include:

Employment DecisionsTitle VII prohibits employment decisions, including those involving recruitment, hiring, promotion, segregation, and firing or layoffs, that have the purpose or effect of discriminating based on national origin.

HarassmentTitle VII prohibits national origin harassment when it is so severe or pervasive that it creates a hostile work environment. A hostile work environment based on national origin can take different forms, including ethnic slurs, workplace graffiti, physical violence, or other offensive conduct directed towards an individual because of birthplace, ethnicity, culture, language, dress, or foreign accent. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation.

Language• Accent discrimination

An employer may not base a decision on an employee's foreign accent unless effective spoken communication in English is required to perform job duties and the individual's accent materially interferes with her ability to communicate in English.

• Fluency requirements

An English (or foreign language) fluency requirement is only permissible if it is required for the effective performance of the position for which it is imposed.

• English-only rules

English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote safe and efficient job performance or safe and efficient business operations. Employers must provide adequate notice of English-only rules.

Citizenship Issues• U.S. citizenship requirements

Title VII does not prohibit citizenship discrimination. Title VII is violated, however, whenever citizenship discrimination has the purpose or effect of discriminating on the basis of national origin. The anti-discrimination provision of the Immigration and Nationality Act, enforced by the Immigrant and Employee

Page 1 of 2

Rights Section of the U.S. Department of Justice, prohibits employers with four or more employees from discriminating because of citizenship status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, firing, and recruitment or referral for a fee.

• Coverage of foreign nationals

Title VII and the other antidiscrimination laws prohibit discrimination against individuals employed in the United States, regardless of immigration status or authorization to work.

Page 2 of 2

U.S. Equal Employment Opportunity Commission

Questions and Answers: Enforcement Guidance on National Origin Discrimination

On November 21, 2016, the EEOC issued its Enforcement Guidance on National Origin Discrimination, https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm, a sub-regulatory document that provides the EEOCs interpretation of the law on this topic. The Enforcement Guidance replaces the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination (2002).

The following questions and answers address a number of issues in the guidance. The guidance also contains promising practices for employers. A Small Business Fact Sheet on this topic is available at https://www.eeoc.gov/laws/guidance/national-origin-factsheet.cfm.

1. Overview of Title VII.

Title VII of the Civil Rights Act of 1964 (Title VII) applies to employers with 15 or more employees. It also covers employment agencies, the federal government, state and local government employers, and unions. Title VII prohibits discrimination in employment based on national origin, as well as race, color, religion, and sex. Title VII also prohibits employers from retaliating against people who oppose workplace discrimination or who participate in an Equal Employment Opportunity (EEO) complaint process.

Title VIIs protection against national origin discrimination extends to all employees and applicants for employment in the United States, regardless of their place of birth, authorization to work, citizenship, or immigration status.

2. What is national origin discrimination under Title VII?

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.

• An individuals place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).

• A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

• National origin does not refer to citizenship or immigration status.

3. How is national origin discrimination defined under Title VII?

Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.

4. Who Does Title VII protect from national origin discrimination?

Title VII protects every employee or applicant against discrimination based on his or her national origin, including Americans. Title VII also prohibits employment discrimination because an individual is not American.

5. Does Title VII protect an individual from discrimination based on a perception of national origin, even if the perception proves to be incorrect?

Yes. Title VII prohibits employers from discriminating based on incorrect information or conclusions about an individuals (or his or her ancestors) ethnicity or nationality. For example, treating an employee less favorably because of the perception that he is Hispanic/Latino would be national origin discrimination, even if he is not in fact Hispanic/Latino.

6. Does Title VII protect an individual from employment discrimination based on the individuals association with people of a particular national origin?

Yes. National origin discrimination includes treating someone less favorably at work because he or she associates with (for example, marries) someone of a particular national origin.

Page 1 of 3

7. Can applicants or employees allege Title VII employment discrimination based on national origin andanother basis, such as race, color, religion, or sex?

Yes. In fact, national origin discrimination often overlaps with other forms of discrimination, such as race, color, or religious discrimination.

A person also could challenge discrimination based on a combination of protected characteristics that are inseparable (often referred to as intersectional discrimination). For example, Title VII prohibits discrimination against an employee because she is an Asian woman, even if the employer has not also discriminated against Asian men or non-Asian women.

8. Can victims of human trafficking also allege national origin discrimination?

Yes. Title VII applies in trafficking cases when an employer uses force, fraud, or coercion to compel labor or exploit workers based on their national origin or another protected characteristic. Trafficking cases may involve multiple bases and allegations, such as national origin, sex, and retaliation.

9. How can employers avoid discriminating based on national origin when recruiting?

Employers and employment agencies must not discriminate during the referral process Title VII prohibits employment agencies from referring only applicants and/or employees who are of a particular national origin group. Similarly, employment agencies may not comply with discriminatory recruitment or referral requests from employers.

• Avoid exclusive use of word-of-mouth recruitment Word-of-mouth recruitment is the practice of asking current employees to tell their family, friends, or acquaintances about job openings and to refer potential candidates to the employer. Exclusive reliance on word-of-mouth referrals may reinforce the existing racial or ethnic makeup of the workplace and should generally be accompanied by additional recruitment techniques.

• Use diverse recruitment sources Employers should attempt to recruit from diverse sources in order to attract a diverse applicant pool. Recruitment practices aimed at increasing overall diversity will not violate Title VII as long as they do not exclude any particular national origin group.

10. May an employer discriminate in order to satisfy the preferences of clients, customers, or employees?

No. Discrimination based on national origin is prohibited by Title VII even if employment decisions are made due to the discriminatory preferences of clients, customers, or employees. Employers covered by Title VII cannot justify employment discrimination because of the preferences of others.

11. May employers make job assignments based on national origin?

No. It is unlawful for an employer to assign or refuse to assign individuals to certain jobs, facilities, locations, tasks, or geographic areas; deny promotions; physically isolate employees; or otherwise segregate workers into jobs based on their national origin. For example, Title VII prohibits assigning individuals to non-customer contact jobs or to back room jobs based on their national origin.

12. Is it lawful to refuse to hire or to fire an individual who fails to obtain a required security clearance?

An employer may refuse to hire, refuse to refer, or decide to terminate an individual who fails to obtain a required security clearance if the requirement is imposed under a security program in effect pursuant to, or administered under, any federal statute or Executive Order in the interest of national security. It would, however, be discriminatory, for example, to require Hispanic applicants to obtain a confidential national security clearance in order to occupy a position without imposing the same requirement on non-Hispanics who seek to occupy the same position.

13. What is national origin harassment?

Unlawful harassment is conduct that is severe or pervasive enough to create a work environment that an individual perceives as hostile, and a reasonable person would find intimidating, hostile, or abusive. Title VII prohibits such harassment on the basis of national origin.

Harassment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or accent. Employer liability can result from the actions of supervisors, employees, or non-employees, such as clients, customers, or commercial contacts.

14. Why is it important to take steps to prevent national origin harassment?

Preventive efforts can help eliminate national origin harassment and limit the employers liability if there is a Title VII charge or lawsuit. The Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace outlines measures employers can take to prevent and remedy workplace harassment, including clearly communicating that harassment based on national origin will not be tolerated; adopting fair and impartial anti-harassment policies and procedures; and ensuring that employees who violate the prohibition on harassment are appropriately disciplined. Anti-harassment procedures will not be effective if managers and employees are unable to understand them due to language barriers or because they are unable to use the complaint process.

Page 2 of 3

15. Is it lawful to consider language issues in the workplace?

Employers may have legitimate business reasons for making language-based employment decisions. It is important, however, to ensure that these decisions do not violate Title VII.

An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individuals accent materially interferes with that job performance.

A language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed.

A language-restrictive policy may violate Title VII if it is applied at all times in the workplace, but such a policy may be lawful in limited circumstances when needed to promote safe and efficient job performance or safe and efficient business operations. Of course, it should not be adopted for discriminatory reasons or applied in a discriminatory way.

16. Are employers required to accommodate national origin traditions or practices at work?

No. Title VII does not require accommodation of national origin traditions or practices. An employer would, however, need to grant a request for religious accommodation if doing so would not impose an undue hardship on the employer. For more information about religious accommodations, refer to EEOC Compliance Manual Section 12: Religious Discrimination and Religious Garb and Grooming in the Workplace: Rights and Responsibilities.

17. Are foreign nationals in the United States protected by Title VII?

Yes. Foreign nationals employed in the United States are protected by Title VII.

18. Does immigration status affect whether an applicant or employee is protected by Title VII?

No. Title VII protects job applicants and employees without regard to their immigration status.

19. Does Title VII prevent an employer from verifying a newly-hired noncitizens work authorization?

No. Through the Form I-9 process, employers must verify the identity and work authorization of newly hired employees. Employers, however, are not allowed to treat individuals differently during the authorization process based on their national origin. Nor may an employer retaliate against an individual for opposing discriminatory practices, or participating in a Title VII proceeding, by using the work authorization process for purposes of reprisal. Finally, the Immigration and Nationality Act (INA) prohibits unfair documentary practices, such as requesting more documents than are necessary to verify employment eligibility.

20. Does Title VII apply to a foreign employer in the United States?

Title VII applies to a foreign employer in the United States to the same extent as it applies to an American employer, unless the foreign employer is exempted from coverage by a treaty or international agreement. A foreign employer may discriminate in favor of its own citizens when permitted by a treaty.

21. How can a job applicant or employee report national origin discrimination?

An applicant or employee who believes his or her rights under federal EEO laws have been violated may file a complaint:

• Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/employees/howtofile.cfm.

• Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm.

22. Where can employers obtain compliance assistance or more information?

For more information, visit https://www.eeoc.gov/, call the EEOC at 800-669-4000 (voice) or 800-669-6820 (TTY), or visit your local EEOC office (https://www.eeoc.gov/field/index.cfm). Ask for translation assistance if needed.

Page 3 of 3

1

Fair Employment & Housing Council Regulations Regarding National Origin Discrimination

CALIFORNIA CODE OF REGULATIONS Title 2. Administration Div. 4.1. Department of Fair Employment & Housing Chapter 5. Fair Employment & Housing Council Subchapter 2. Discrimination in Employment Article 4. National Origin

TEXT

Text proposed to be added is displayed in underline type. Text proposed to be deleted is displayed in strikethrough type.

§ 11027.1. Definitions.

(a) “National origin” includes, but is not limited to, the individual’s or ancestors’ actual or perceived:

(1) physical, cultural, or linguistic characteristics associated with a national origin group;

(2) marriage to or association with persons of a national origin group;

(3) tribal affiliation;

(4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group;

(5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and

(6) name that is associated with a national origin group.

(b) “National origin groups” include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.

(c) “Undocumented applicant or employee” means an applicant or employee who lacks legal authorization under federal law to be present and/or to work in the United States.

Note: Authority cited: Section 12935(a), Government Code. Reference: Section 12940, Government Code.

§ 11028. Specific Employment Practices.

(a)-(c) (Reserved)

2

(d) An employer may have a rule requiring that employees speak only in English at certain times, so long as the employer can show that the rule is justified by business necessity (See section 11010(b)) and the employer has effectively notified its employees of the circumstances and time when speaking only in English is required and of the consequences of violating the rule.(a) Language Restrictions.

(1) It is an unlawful employment practice for an employer or other covered entity to adopt or enforce a policy that limits or prohibits the use of any language in the workplace, including, but not limited to, an English-only rule, unless:

(A) The language restriction is justified by business necessity;

(B) The language restriction is narrowly tailored; and

(C) The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.

(2) For purposes of this subsection, “business necessity” means 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 to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

(3) It is not sufficient that the employer’s language restriction merely promotes business convenience or is due to customer or co-worker preference.

(4) English-only rules violate the Act unless the employer can prove the elements listed in section 11028, subdivisions (a)(1)(A)-(C). English-only rules are never lawful during an employee’s non-work time, e.g., breaks, lunch, unpaid employer-sponsored events, etc.

(b) Employment discrimination based on an applicant’s or employee’s accent is unlawful unless the employer proves that the individual’s accent interferes materially with the applicant’s or employee’s ability to perform the job in question.

(c) Discrimination based on an applicant’s or employee’s English proficiency is unlawful unless the English proficiency requirement at issue is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position.) In determining business necessity in this context, relevant factors include, but are not

3

limited to, the type of proficiency required (e.g., spoken, written, aural, and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position.

(d) It is not unlawful for an employer to request from an applicant or employee information regarding his or her ability to speak, read, write, or understand any language, including languages other than English, if justified by business necessity.

(e) Retaliation. It is an unlawful employment practice for an employer or other covered entity to retaliate against any individual because the individual has opposed discrimination or harassment on the basis of national origin, has participated in the filing of a complaint, or has testified, assisted, or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged. Retaliation may include, but is not limited to:

(1) threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, applicant, or a family member (e.g., spouse, domestic partner, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, great-grandparent, grandchild, or great-grandchild, by blood, adoption, marriage, or domestic partnership) of the employee, former employee, or applicant; or

(2) taking adverse action against an employee because the employee updates or attempts to update personal information based on a change of name, social security number, or government-issued employment documents.

(f) Immigration-related Practices.

(1) All provisions of the Act and these regulations apply to undocumented applicants and employees to the same extent that they apply to any other applicant or employee. An employee’s or applicant’s immigration status is irrelevant during the liability phase of any proceeding brought to enforce the Act.

(2) Discovery or other inquiry into an applicant’s or employee’s immigration status shall not be permitted unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.

(3) It is an unlawful practice for an employer or other covered entity to discriminate against an employee because of the employee’s or applicant’s immigration status, unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.

(4) It is an unlawful practice for an employer or other covered entity to retaliate, as described in subdivision (e), against an employee for engaging in activity protected by the Act.

(eg) It is unlawful for an employer or other covered entity to discriminate against an applicant or employee because he or she holds or presents a driver’s license issued under section 12801.9 of the Vehicle Code.

4

(1) An employer or other covered entity may require an applicant or employee to hold or present a license issued under the Vehicle Code only if:

(A) Possession of a driver’s license is required by state or federal law; or

(B) Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law. An employer’s or other covered entity’s policy requiring applicants or employees to present or hold a driver’s license may be evidence of a violation of the Act if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., possessing a driver’s license is not needed in order to perform an essential function of the job).

(2) Nothing in this subsection shall limit or expand an employer’s authority to require an applicant or employee to possess a driver’s license.

(3) Nothing in this subsection shall alter an employer’s or other covered entity’s rights or obligations under federal immigration law.

(fh) Citizenship requirements. Citizenship requirements that are a pretext for discrimination or have the purpose or effect of discriminating against applicants or employees on the basis of national origin or ancestry are unlawful, unless pursuant to a permissible defense.

(i) Human Trafficking. It is an unlawful employment practice for an employer or other covered entity to use force, fraud, or coercion to compel the employment of, or subject to adverse treatment, applicants or employees on the basis of national origin.

(j) Harassment. It is unlawful for an employer or other covered entity to harass an applicant or employee on the basis of national origin. (See generally section 11019(b).) The use of epithets, derogatory comments, slurs, or non-verbal conduct based on national origin, including, but not limited to, threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language or its speakers may constitute harassment if the actions are severe or pervasive such that they alter the conditions of the employee’s employment and create an abusive working environment. A single unwelcome act of harassment may be sufficiently severe so as to create an unlawful hostile work environment. (See generally section 11034(f)(2)(A).)

(k) Height and/or weight requirements. Such requirements may have the effect of creating a disparate impact on the basis of national origin. Where an adverse impact is established, such requirements are unlawful, unless the employer can demonstrate that they are job related and justified by business necessity. Where such a requirement is job related and justified by business necessity, it is still unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved as effectively through less discriminatory means.

(l) Recruitment and job segregation. It is an unlawful employment practice for an employer or other covered entity to seek, request, or refer applicants or employees based on national origin or to assign positions, facilities, or geographical areas of employment based on national origin, unless pursuant to a permissible defense.

5

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12926, and 12940 and 12951, Government Code.

Sample Letter: English-only Rule

You may wish to use the sample letter on the next page if you work in California and your

employer makes you speak only English at work. This is commonly referred to as an “English-

only” policy.

The Legal Aid Society-Employment Law Center cannot ensure the information in this sample

letter is current, or be responsible for any use it is put to. It is always best to consult with an

attorney about your particular situation to determine your rights and the best steps to take

when you think your rights may have been violated. If you would like to speak to someone, you

can contact our toll-free Language Rights Helpline (1-800-864-1664). You can also review our

fact sheet on language discrimination.

IMMIGRANT WORKERS

It is illegal for employers to retaliate against any worker because she asserts her workplace

rights—for example, by contacting federal immigration authorities. Unfortunately, this type of

retaliation does happen, and it can have serious consequences for immigrant workers. If you

lack legal status or work authorization in the United States, you should consult with an

immigration attorney about the risks employer retaliation could entail for you.

[DATE]

[EMPLOYER’S NAME]

[EMPLOYER’S ADDRESS]

Dear [Name of employer]:

I am writing you to express my concern about the “English-only” rule in our workplace. This rule adversely affects minority employees who, like me, speak a primary language other than English. I am asking that you seriously consider withdrawing the policy.

Because English-only rules burden only certain racial and ethnic groups, they are likely to violate Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA). The FEHA prohibits employers from requiring their employees to speak only in English without a valid business necessity, and without giving them adequate notice. “Business necessity” means “an overriding legitimate business purpose” such that:

1. the English-only rule is necessary to the safe and efficient operation of the business;

2. the rule effectively fulfills the business purpose it is supposed to serve; and 3. there is no alternative to the rule that would accomplish the same purpose

equally well with a less discriminatory impact.

English-only rules are divisive and alienating for non-native English speakers. Situations where workers feel constantly monitored, nervous, and afraid to speak in languages other than English often lead to the type of “hostile work environment” that violates the law. The law requires employers to take effective steps to eliminate such harassment based on language and national origin.

Because of the kind of work that I, and others like me, perform at our workplace, I do not believe that an English-only rule is necessary. In fact, prohibiting us from speaking to each other in languages in which we can communicate more quickly and accurately actually makes our work less efficient.

To ensure a discrimination-free environment in our workplace, I respectfully ask that you promptly rescind the English-only rule and allow employees to speak to each other in any language.

I look forward to hearing from you at your earliest opportunity. Thank you very much for your consideration of my concerns.

Sincerely, [YOUR NAME]

1

Lisa C. Hamasaki (San Francisco) • Betsy Johnson (Los Angeles)Ellen M. Papadakis – Astellas US LLC

“Don’t Let Me Hear You Say That Again!” Managing a Multilingual Workforce in California (Without Getting Sued)

NAVIGATING CALIFORNIA EMPLOYMENT LAW • FEBRUARY 27 - MARCH 2, 2019 • SILVERADO RESORT AND SPA


Breaking News!

English is NOT the official language of the U.S.

2


• A policy requiring that English be spoken at all times in the workplace will be presumed to be discrimination based on national origin. Title VII. 29 C.F.R. § 1606.7(a).

• Employer must show that the rule is “justified by business necessity.” 29 C.F.R. § 1606.7(b).

• Even if justified, employer can’t take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

EEOC Guidelines


• 32 states currently have legislation designating English as the official language

• Laws don’t mean that English is the exclusive language

• Laws don’t validate “English-only” policies

“Please Speak English!”

3


• Several states enacted “language protection” laws– Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Washington,

and California

• Employee must show that policy creates an environment that is hostile to national origin of employees and disparately impacts non-English speakers

• Employer must justify English-only policy by showing “business necessity”– Compelling, job related reasons

State Laws


California Constitution, Article III

SEC. 6: (a) English is the common language of the people of the United States of America and the State of California. This section is intended to preserve, protect and strengthen the English language, and not to supersede any of the rights guaranteed to the people by this Constitution.

(b) English is the official language of the State of California.

. . .

(d) Any person who is a resident of or doing business in the State of California shall have standing to sue the State of California to enforce this section, and the Courts of record of the State of California shall have jurisdiction to hear cases brought to enforce this section.

4


California Government Code

• California Government Code section 12951

• Employer can only implement or enforce a policy that limits or prohibits the use of any language in the workplace if:

– The language restriction is justified as a business necessity; and

– The employer notifies the employees of the circumstances and the time when the language restriction is required to be observed, and the consequences of violating the restriction.


• Expands definition of national origin:

– Physical, cultural, or linguistic characteristics

– Marriage/association with person in group

– Membership/association with organization identified with national origin group

– Attendance/participation in schools, churches, temples, or mosques associated with national origin group

DFEH New National Origin Regulations

5


DFEH Enforcement Position

• English-only rules are presumed unlawful

• English-only rules never lawful during non-work time

• Employer must show business necessity

• Employees must receive notice of any language policies or restrictions in the workplace


• Discrimination against “accents”

– Unlawful to discriminate based on an applicant’s or employee’s accent, unless employer proves that the individual’s accent interferes materially with ability to perform the job

Language Restrictions – Accents

6


• Discrimination against employees who lack English proficiency

– Discrimination based on an applicant’s or employee’s English proficiency is unlawful

– Unless the English proficiency requirement is necessary for the effective performance of the specific position

Language Restrictions – English Proficiency


• Government Code sec. 12951 defines as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”

“Business Necessity”

7


1) To ensure workplace safety?

2) To ensure effective supervision?

3) To ensure the productivity and efficiency of the business?

4) To improve customer relations?

5) To promote diversity and inclusion?

6) To address gossip morale?

7) To improve employees’ English skills?

Business Necessity – What Do You Think?


Some Examples

• For communications with customers, co-workers, or supervisors who only speak English;

• In emergency situations to promote safety;

• For cooperative work assignments in which the English-only rule is needed to promote efficiency;

• To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties required communication with co-workers or customers.

8


Policy Considerations

• Do you need a “language” policy in your workplace?

– If so, why (i.e., business necessity)?

• How will it be enforced?

• What are the consequences of violating the policy?

• What are you regulating (language or behavior)?

– Remember, you have harassment and EEO policies, too

• Is there a less provocative way of accomplishing the business purpose?

– Training/educating employees about diversity and inclusion

– Provide resources for employees (ESL courses?)


Posting and Notice Requirements

• In CA, all employers must meet workplace posting obligations, including postings related to wages, hours, working conditions, safety and health, leave rights, discrimination and harassment, and various other employee rights.

9


Multilingual Postings

• When must postings/notices be in multiple languages?

– DFEH (including CFRA notices) – If 10% of workforce speaks language other than English

– FMLA – If a “significant portion of workers … are not literate in English”

– Many brochures/posters are available for free in Spanish, some in Chinese, Korean, Spanish, Vietnamese, and Tagalog.

• When should you have postings and notices in multiple languages?


Take Aways

• There is no “one size fits all” solution to managing a multilingual workforce

• Workplace language policies must be narrowly tailored and justified by business necessity

• Policy should include justification

• Rules must be communicated to all employees

• Supervisors must be trained and encouraged to partner with HR and Legal

10

Lisa C. Hamasaki (San Francisco) • Betsy Johnson (Los Angeles)Ellen M. Papadakis – Astellas US LLC

“Don’t Let Me Hear You Say That Again!” Managing a Multilingual Workforce in California (Without Getting Sued)


“DON’T LET ME HEAR YOU SAY THAT AGAIN!”...2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 11-1 “DON’T LET ME HEAR YOU SAY THAT AGAIN!”

Documents