A. English-Only at Work

      Social science research indicates that intergroup exposure and contact at work is the single most important factor in reducing group-based stereotypes in the workplace. Cynthia Estlund's Working Together demonstrates that the modern workplace is the “most promising arena” for diverse individuals to meet and develop meaningful relationships. Although the “typical American workplace is [not] genuinely integrated, [] even the partial demographic integration in the workplace “yields far more social integration - actual interracial interaction and friendship - than any other domain of American society.” Gordon Allport's 1964 “contact hypothesis” identified four key conditions that determined whether increased contact with a group led to an improved attitude towards that group and subsequent research validated his findings. The four conditions required to reduce intergroup bias via contact were: (1) equal status between the groups; (2) common goals; (3) interdependence of the groups; and (4) positive support from authorities, laws or custom. While the bulk of social science research in this area focuses on breaking down race and gender barriers at work, this theory is also applicable to ethnicity barriers and educational settings. However, language diversity may severely impede the development of Allport's key conditions.

      Even with increased tolerance for linguistic diversity, there is no doubt that language differences complicate social dynamics and cooperation in the workplace and at school. Communication, nearly impossible without a common language, is essential for “cooperation, sociability, and sharing of work-related concern . . . . Where language differences make conversation difficult or impossible, one of the major engines of social connectedness is stalled.” Under the current system, employers do not have many options to encourage communicative cooperation. They can (1) encourage English-language acquisition by non-English speakers, an admirable but prohibitively expensive approach for most employers; or (2) implement an English-Only rule, an approach that may only function if most employees speak at least some English.

      Employers have begun to turn to English-Only policies of varying degrees in order to achieve assorted goals. In Garcia v. Gloor, an early case from the United States Court of Appeals for the Fifth Circuit, the court upheld the employer's English-Only rule, as applied to a bilingual employee, concluding that it did not amount to national origin discrimination under Title VII of the Civil Rights Act of 1964. The plaintiff, Mr. Garcia, was a bilingual, Mexican-American salesman at Gloor Lumber and Supply, a company that prohibited bilingual employees from speaking Spanish on the job unless they were talking to Spanish-speaking customers; the rule did not apply during breaks. While at work, Mr. Garcia was asked by a fellow bilingual, Mexican-American co-worker whether an item requested by a customer was available. Mr. Garcia responded in Spanish and was subsequently fired for violating the English-Only rule. The court reasoned that Title VII's prohibition on national origin discrimination did not extend to language because language, unlike sex, race, or national origin, was a mutable characteristic. While the court conceded that “language may be used as a covert basis for national origin discrimination,” the English-Only rule in this case was not discriminatory because Mr. Garcia was bilingual and his observance or nonobservance of the rule was a “matter of individual preference.” Therefore the court held that the English-Only rule had no disparate impact.

      One of the most significant problems with this ruling was the narrow interpretation of national origin. By limiting national origin claims to those explicitly involving ancestry, the court effectively rendered the statute useless in combating discrimination against people considered “foreign.” Indeed, most national origin discrimination does not stem from someone being born outside the United States, but from “the attributed ‘foreignness' of one's characteristics such as non-English or non-mainstream language, accent, appearance, name or culture . . . .” Recognizing the problems with the court's narrow interpretation of national origin, the Equal Employment Opportunity Commission (EEOC) issued new guidelines clarifying that Title VII prohibits language discrimination as a form of national origin discrimination.

      Today, the EEOC presumes that English-Only rules that apply at all times violate Title VII, and the EEOC has recognized that such rules may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory work environment.” However, limited English-Only rules--those that apply only at certain times or under certain circumstances--may be lawful if the employer can show that they are justified by business necessity. In turn, employers have developed three general types of business necessity justifications.

      The first justification focuses on workplace harmony, particularly among co-workers; the second posits that English-Only rules are linked to customer satisfaction; and the third revolves around issues of workplace management, primarily focusing on safety and efficiency concerns. Employers have claimed that English-Only rules promote workplace harmony by putting all minorities on equal footing, despite placing a heavier burden on linguistic minorities. English-Only rules may also help prevent race-based and sexual harassment by preventing employees from using a non-English language to intimidate fellow workers. Further, employers have argued that linguistic diversity exacerbates inter-ethnic tensions. These tensions may intensify due to the increased competition, perceived or actual, that immigrants have created for English-dominant minorities, such as African-Americans.

      Employers may claim that English monolingual customers and employees are intimidated and uncomfortable when confronted with a language that they cannot understand, and often suspect that they are being disparaged in a tongue they do not share. Though customer preference is not an acceptable justification with respect to race or sex, employers may still invoke this defense in English-Only cases because “[m]ost courts regard this concern for employee morale in the face of cognitive dissonance as a legitimate and enforceable norm” with regard to national origin claims. As in cases of race and sex-based discrimination, these concerns may benefit the employer's profit margin by catering to certain employees and segments of society, but they do so by perpetuating public anxieties. Customer preference concerns have also been framed as an argument for “civility,” by labeling as offensive the act of speaking a foreign language around individuals who do not understand the language. It is interesting to note the asymmetry in language expectations. The fact that courts have not recognized an inverse civility claim - “that it would be offensive to a non-English speaker to be surrounded by people speaking English” - is one of many reflections signaling the social dominance of English and the sense of entitlement that stems from this dominance.

      The EEOC has indicated that English-Only rules citing blanket safety concerns are improper. Employers must specify what the safety concern is and demonstrate that the English-Only rule is appropriately tailored to meet this specific concern. Consequently, a safety justification should succeed in work settings where potentially dangerous substances or equipment are present and “effective communication” is crucial to avoid accidents and injuries. The efficiency justification is essentially a claim that employers should be able to decide how they want to run their businesses, including how to optimize their employees' performance. Like safety justifications, the efficiency rationale is a strong argument when job function actually requires speaking English. The issue then becomes defining “requires.” Efficiency concerns are directly related to the employer's goal of profit maximization, and usually claim either that a monolingual workplace is necessary to run the business effectively, or that a common language is required for supervisors to be able to effectively monitor employee performance. While safety and efficiency concerns present the most compelling and practical justification for English-Only rules, neither considers a “generalized interest in regulating the interpersonal dynamics of the workplace.”