The U.S. Commission on Civil Rights (“USCCR” or “Commission”) has issued a briefing report – English Only Policies in the Workplace (pdf) – recommending that an employer’s English-only policy be deemed unlawful only if such policies are enacted to harass, embarrass, or exclude employees and/or applicants based on their national origin.

The report also suggests that Congress amend Title VII of the Civil Rights Act to clarify the meaning of discrimination on the basis of national origin. This recommendation runs contrary to the Equal Employment Opportunity Commission’s (EEOC) stated guidelines on this issue, which, in fact, the briefing report advises should be withdrawn.

The eight-member Commission is charged with, among other functions, reviewing the efficacy of current anti-discrimination law, analyzing discrimination in our society, and submitting its findings and recommendations to the President and Congress. To this end, on December 12, 2008, the Commission conducted a hearing to examine whether employers have the legal authority to specify English as the official language of the workplace, as well as the practical and social consequences of such policies. The EEOC has taken the position that English-only policies are presumptively unlawful, as they risk national origin discrimination under Title VII of the Civil Rights Act. According Section 1606.7 of the EEOC guidelines, an English-only policy in the workplace, when applied at all times:

is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates Title VII and will closely scrutinize it.

The same guidelines explain that if the English-only policy is applied only at certain times, an employer may invoke such a rule if it can show that it is justified by business necessity.

Written by Ilyse Schuman

Read more at http://www.dcemploymentlawupdate.com/2011/10/articles/eeoc-1/usccr-briefing-report-recommends-scrapping-eeoc-guidelines-on-englishonly-policies/

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