Today, the melting pot of different cultures in America has become, in many instances, more of a salad-with each part maintaining its unique identity within the whole. According to the 2000 U.S. Census figures, one of every six U.S. residents speaks a language other than English when at home. Twenty-five percent of New York State residents and 40% of California residents speak a language other than English at home.
The language a person speaks can be a significant component of his or her identity. While diversity in the workplace should be celebrated, problems can arise when employees speak languages other than English at work.
According to Pete Sainato, President and CEO of Justice Federal Credit Union (JFCU), "Whenever you have a supervisor who is asked to manage staff who speak an unfamiliar language, it is an uncomfortable position to be in. Supervisors or co-workers may feel excluded from workplace conversations that are in a language they do not understand." Resentments can arise, even if they are unfounded in fact.
As with most businesses, federal credit unions employ many people who speak languages other than English. Care should be taken in developing a policy on the use of languages other than English. JFCU, based in the Washington, D.C. suburb of Chantilly, Virginia, recently developed such a policy to ease tensions and to honor diversity.
"At JFCU, we go to great lengths to celebrate diversity with employees from all over the world," according to Mr. Sainato. "Yet we also realize that our common bond is the English language."
Caution and sensitivity are crucial with anything touching on ethnicity in the workplace. Ad hoc restrictions of the workplace use of languages other than English, or an improperly drawn written policy on workplace language, can present the risk of liability under employment discrimination laws. The U.S. Equal Employment Opportunity Commission (EEOC) has taken the firm position that rules restricting employees to the use of the English language run afoul of Title VII of the Civil Rights Act of 1964, if such "English-only" rules are applied at all times or when the rules cannot be justified by business necessity.
According to the EEOC, such policies are presumed to be illegal, with the burden of proof on the employer to demonstrate otherwise. This stance is echoed by numerous state, county and local EEO agencies across the country.
Defending a charge of discrimination based on an improper "English-only" policy can prove to be an extremely expensive proposition. Two years ago, the federal EEOC settled a class-action law suit against a private university in Texas on behalf of Hispanic workers who were subjected to an unlawful "English-only" rule and were harassed because of their national origin-for $2.44 million.
In federal credit unions, virtually all employees are fluent in English, yet many speak another language with family and friends. The key to success in restricting employees' use of languages other than English at the workplace is to respect the employees' choice of language at their non-working times, such as their break times, meal periods, and other times before and after their work begins.
The policy should expressly permit the use of language other than English at such times. The policy should also cover the use of language other than English in employees' personal e-mail messages on the credit union's e-mail system and during personal telephone calls at work, consistent with the credit union's policies on workplace e-mail and telephone usage.
As stated in the policy announced by Mr. Sainato for JFCU: "Using English during working time ensures that we can all understand and participate. Using the language we all have in common lets us contribute to each others' work. Using the common language promotes inclusion and avoids possible feelings of being left out of conversations."
With a proper policy on language use in place, a credit union can demonstrate its commitment to diversity while, at the same time, reducing its exposure to liability under employment discrimination laws.
Brian S. Harvey is a partner in the Washington, D.C. office of Baker & Hostetler LLP, where he practices workplace law. Mr. Harvey can be reached at bharvey@bakerlaw.com or 202-861-1559.
