Dive Brief:

• An international company that produces and distributes Mexican-style food items has agreed to pay $2 million to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) alleging that its facilities in several U.S. states refused to hire non-Hispanic applicants for unskilled production and warehouse positions.
• Marquez Brothers International and several affiliates discouraged non-Hispanic applicants from applying for the jobs by imposing, among other things, an unnecessary language requirement, the EEOC said.  
• The three-year consent decree settling the case also calls for what the EEOC called "sweeping injunctive relief" to prevent future discrimination, including hiring an external monitor, setting hiring goals, implementing measures to improve transparency and diversity and maintaining a centralized tracking system for all discrimination complaints.

Dive Insight:

Title VII of the Civil Rights Act of 1964 outlaws employment discrimination based on national origin. Lawsuits addressing a subset of national origin discrimination, language discrimination, are on the upswing.

While this particular settlement dealt with alleged discrimination against non-Hispanic applicants, illegal "English-only" policies are often implemented. Such policies have been successfully challenged, Kenneth M. Willner, a partner with Paul Hastings LLP, told attendees at a National Employment Law Institute conference in summer 2018. 

Rules requiring employees to speak English in the workplace at all times will be presumed to violate Title VII, the EEOC has said in a guidance, where it also notes that a restrictive language policy violates Title VII if it is adopted for discriminatory reasons, such as bias against employees of a particular national origin.

However, a blanket policy to use only English in the workplace is allowed if certain conditions are met. The employer must provide advance notice of the rule and show that it is justified by business necessity, the EEOC said in the guidance. As a result, an English-only rule should be narrowly drawn and closely tethered to interests of safety and efficiency, Michael Studenka, partner at Newmeyer & Dillion LLP, told HR Dive via email in a previous interview.

The rule can apply in emergencies or situations where a common language will promote safety, for cooperative assignments to promote efficiency and to enable supervisors who speak only English to monitor performance of employees whose jobs require communicating with co-workers or customers.

State law can also come into play. Under the California Fair Employment and Housing Act, businesses with five or more employees can adopt a language-restricted policy only if it can show an "overriding and legitimate business purpose that makes language restriction necessary for the safe and efficient operation of the business." There can be no alternative practice that would accomplish the same business purpose with a lesser discriminatory impact. Employers must notify staff when the policy must be followed, as well as the consequences for failure to comply.

Experts recommend that English-only policies should be narrowly tailored, not overly broad and not applied to jobs where they are not necessary. For example, when employees converse in break areas and lunchrooms, English-only rules generally should not apply.