English Only Policies

Employers concerned about how their customers and other employees may react to the use by some employees of languages other than English may wish to impose an English only policy. The EEOC recently settled a case that involved allegedly improper language policies at a large hospital in California's San Joaquin Valley. The press release announcing the settlement is available here. Both state and federal law limit employers' ability to restrict use by their employees of languages other than English.

Under Title VII, English only rules may create liability for national origin discrimination. As explained in the EEOC's policy manual section on national origin discrimination, an English only rule must be justified by business in order to survive a Title VII challenge. The manual identifies the following as relevant considerations: Evidence of safety justifications for the rule, evidence of other business justifications for the rule, such as supervision or effective communication with customers, likely effectiveness of the rule in carrying out objectives, the availability of alternatives to an English only policy, and English proficiency of workers affected by the rule. Here is an example of an alternative from the manual:

"At a management meeting of XYZ Electronics Co., a supervisor proposes that the company adopt an English-only rule to decrease tensions among its ethnically diverse workforce. He reports that two of the employees he supervises, Ann and Vinh, made derogatory comments in Vietnamese about their coworkers. Because such examples of misconduct are isolated and thus can be addressed effectively under the company's discipline policy, XYZ decides that the circumstances do not justify adoption of a facility-wide English-only rule. To reduce the likelihood of future incidents, XYZ supervisors are instructed to counsel line employees about appropriate workplace conduct."

In California, English only policies may violate the Fair Employment and Housing Act as a form of national origin discrimination, just as they may violate Title VII. But, the FEHA also contains an express restriction on English only policies in California Government Code section 12951 (enacted in 2001), which bars any policy that "limits or prohibits the use of any language in any workplace," unless "(1) The language restriction is justified by a business necessity, (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction." Business necessity means "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."

Lack Of Security Clearance Does Not Justify Discrimination

The Ninth Circuit has ruled that lack of a security clearance cannot be used as a shield for discrimination. The usual McDonnell Douglas burden shifting approach applies.

In Zeinali v. Raytheon Co., No. 09-56283 (9th Cir. Apr. 4, 2011), Hossein Zeinali, who was of Iranian descent, worked as an engineer for Raytheon for four years. Raytheon had told him that his continued employment was contingent on obtaining a "secret" level security clearance. Although Zeinali's request for an interim clearance was rejected, Raytheon retained him while a final clearance decision was pending. During that period, he received positive feedback about his job performance. After the Department of Defense finally denied Zeinali's request for a security clearance, Raytheon discharged him. Zeinali pointed out that two non-Iranian engineers without security clearance were retained after he was discharged.

In Brazil v. U.S. Department of the Navy, 66 F.3d 193 (9th Cir. 1995), the Ninth Circuit had ruled that federal courts could not review security clearance decisions in a Title VII discrimination action. "[T]he grant of a security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch." However, where, as in the Zeinali case, the plaintiff does not question the judgment call to deny clearance, the Brazil reasoning does not apply. Zeinali accepted the denial of a security clearance, but argued that the security clearance was not a bona fide job requirement. Because he provided evidence that Raytheon retain non-Iranian engineers without security clearances, his claim should have survived summary judgment. That was sufficient for a reasonable factfinder to be able to find that the lack of a security clearance was a pretext for national origin discrimination.