Key Considerations for Drafting Compliant English-Only Policies

By: Jamala S. McFadden, Chandra C. Davis, and Raquel H. Crump, McFadden Davis, LLC

This article provides guidance for drafting, implementing, and enforcing effective and legally compliant English-only policies in the workplace. English-only policies require employees to speak English while on the job. While there are definite benefits to employers from enacting such policies, they are not without risk.

BECAUSE OF THE DISPARATE IMPACT SUCH POLICIES CAN have on foreign-born employees, English-only policies are often the source of discrimination claims. As such, welladvised employers generally narrowly tailor these policies to particular job positions, times, circumstances, and work areas where speaking English serves a legitimate business need, such as by improving safety, promoting customer service, or enhancing employee supervision.

Benefits of English-Only Policies

Despite the risks inherent in English-only policies (as described below), many employers nevertheless choose to utilize them for the role they may play in creating a safe and effective workplace. The benefits to employers from using English-only policies can include:

• Facilitating relations with English-speaking customers
• Promoting effective communication between employees and supervisors
• Allowing supervisors to more easily gauge employee performance
• Promoting employee morale and unity
• Enhancing workplace safety and preventing injuries
• Improving the quality of products and services

Risks of English-Only Policies

The primary risk of implementing an English-only policy is that, if improperly drafted or implemented, it will expose the employer to discrimination claims and liability. Imposing an English-only rule also may have an adverse effect on business operations by preventing employees whose primary language is not English from interacting at work in their most effective language.

To read the full practice note in Lexis Practice Advisor, follow this link.

Jamala S. McFadden is a co-founding partner of The Employment Law Solution: McFadden Davis, LLC. Her practice focuses on all aspects of employment law, including advice and counseling, representation in litigation and agency matters, and corporate transactions. She has advised more than 100 small-to-midsize to Fortune 100 organizations in varied industries. McFadden conducts internal investigations and has trained more than 1,000 management and staff employees on harassment and discrimination policies. Additionally, she drafts workforce-related agreements, policies, and handbooks and assists executives in employment contract matters, including negotiating severance agreements. Chandra C. Davis is a co-founding partner of The Employment Law Solution and has been practicing employment law for over 14 years. She has extensive experience as a management side lawyer and as a Trial Attorney for the EEOC. At the EEOC, Chandra served as first chair in over 25 litigation matters and managed investigative files for over 250 charges for the purpose of recommending the initiation of litigation in connection with various civil actions. She has also developed training programs for the EEOC and multi-national corporations. Raquel H. Crump focuses her practice on advice and counseling, litigation and agency matters, trainings, employment policies, and agreements. Her experience with a large retailer gives The Employment Law Solution insight into how to resolve employment challenges in the industry.

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