An increasingly common concern among employees who are bilingual or do not speak English is whether an employer can enforce an “English-Only” policy or rule at the workplace. The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (LAD) makes it unlawful for employers to discriminate against employees because of the employees’ race, color, national origin, nationality, age, gender, disability, among other things. The LAD, however, does not explicitly prohibit discrimination based on what language an employee speaks. Because of this, the New Jersey Appellate Division has held that “a discharge for speaking another language in the face of an employer’s English-only or English-mainly rule is not by itself a violation of the Law Against Discrimination.” Rosario v. Cacace, 337 N.J. Super. 578, 589 (App. Div. 2001).

Though these rules do not violate the LAD by themselves, they can still be the basis for a national origin discrimination claim. An “English-Only” rule can establish the basis for a discrimination claim if the rule is “used as a surrogate for discrimination on the basis of national origin, ancestry or any other prohibited grounds.” Id. at 585-86. Thus, a plaintiff would have to show that the “English-Only” rule is being used as a tool for discrimination.

There are no published New Jersey cases that can serve as examples of instances in which an employer used an “English-Only” rule as a “surrogate for discrimination.” The only relevant decision that analyzed this issue in depth upheld the employer’s use of such a rule (although the Court did frown upon using the rule). Id. at 588. In that case, the plaintiff was hired specifically because she was bilingual and many of the defendant’s clients spoke only Spanish. The plaintiff’s supervisor, however, did not like it when her employees spoke Spanish among themselves. Eventually, the supervisor fired the plaintiff because the plaintiff continued to speak Spanish in situations in which she was not communicating with clients. Id. at 581. The defendant’s justification for the rule was that they wanted all employees, including the supervisor, to be able to understand what others were saying. The Court held in favor of the defendant, reasoning that the English only rule was not sufficient evidence of discrimination since the plaintiff was hired specifically to communicate with Spanish speaking clients and was replaced with another Hispanic employee. The Court also found the defendant’s justification for the rule to be persuasive.

Still, based on this decision, there are some circumstances in which these types of rules might be discriminatory. For example, rules that specifically forbid speaking one language, but not others, can show discriminatory intent against a specific country of origin. Moreover, rules that attempt to regulate an employee’s speech during breaks and lunch hours, when communicating with coworkers and supervisors is not necessary, might also be discriminatory.

This is consistent with the Equal Employment Opportunity Commission (EEOC) guidelines regarding these types of rules. The EEOC guidelines state that “rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity.”  The EEOC explains:

• A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
• An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
• Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
• Even if there is a need for an English-only rule, an employer may not 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.

Therefore, though “English-Only” rules are not prohibited by the LAD, there are circumstances in which they can show an employer’s discriminatory intent.

By Luis Hansen, Esq. and Ty Hyderally, Esq.