A reader writes that his employer is requiring all employees to speak English in the workplace. He wonders whether the boss is violating his First Amendment right to free speech.
Wow. That’s a potentially explosive topic, especially given sensitivities surrounding the issue of immigration. But before we wrap ourselves in the flag and assert the First Amendment, it’s helpful to remember that there multiple pieces to this puzzle. It is not a crisp yes or no answer.
First of all, let me say that I grew up in a bi-lingual household so I appreciate the urge to speak in your first language. It’s faster and easier. Your fluency gives you a wide ranging vocabulary that allows you to express yourself without searching for words the way you do in English. I understand that. I get it.
I also get that the First Amendment does have limits. It only protects against government intrusion. That means that private businesses can legitimately impose limits on certain types of speech . . . provided there is a legitimate business interest for doing so.
It’s all about context. That’s why there is no crisp yes or no answer here. Let me explain.
Speaking a common language helps avoid misunderstandings and there are lots of legitimate business reasons why an employer might have an English-only policy for all employees. It is therefore incredibly important when it comes to promoting a safe work environment, particularly in manufacturing or construction settings where mistakes can result in lost time accidents and fatalities. If the majority of employees are English-speaking it is reasonable for English to be the required language. Again, it’s all about context.
English may be necessary to speak to customers, coworkers, or supervisors who don’t speak your native tongue. Insisting on your language in those situations would make it impossible to communicate with those people and would impact your ability to do your job properly.
Of course, there are times when a particular job actually calls for fluency in a foreign language, but based on the reader’s question, that does not appear to the case here. The question was posed more as whether the company can make him stop speaking in his native language at work. So, I’m going to make the assumption that the reader is capable of communicating in English, but prefers not to on occasion.
Of course, that begs the question of why they feel the need to shift gears. Are they doing it out of convenience? Is their native language a default setting? Or is something else going on?
On the other hand, if employees are defaulting to their native tongue because they want to complain or trash-talk others in the room, knowing that their targets are clueless as to what is being said about them, it could be an entirely different story. In our culture such behavior is viewed as rude and inconsiderate.
As an aside, I can tell you I’ve seen the default mode kick in when negotiating international business deals with other parties. I mention that point because sometimes I did understand what thought they were saying in private. They assumed I didn’t because I speak English without a foreign accent. It’s happened more than once and it’s resulted in certain information no longer being private or confidential. That’s why it’s not so smart to assume your foreign language automatically cloaks the conversation in privacy.
Now, an employer may not be able to manage the business manners of third parties; but, when it comes to employees the constant chatter in a foreign language, with the inherent connotation of rudeness, has the potential for creating a hostile work environment and that is a legal liability the company does have a legitimate business interest in protecting itself against. Add sexual innuendo into the mix and you have the potential for a sexual harassment claim, another legal liability a business has a legitimate interest in. Please note: I said potential for harassment or hostile work environment.
Remember, it’s about context and that goes for businesses too. If, for example, the English-only requirement is a blanket policy that includes situations where no legitimate business interest is at stake (i.e. my parking lot example above) the policy may be subject to legal attack. Similarly, if the English-only requirement is presented in way that disparages an employee’s national origin the company might find itself under attack for discrimination, especially if the policy is created and enforced on an ad hoc basis.
It all depends on the facts. It’s a balancing act that is very dependent on specific facts. Employees who feel that their employer’s English-only policy discriminates against them can contact the Equal Employment Opportunity Commission near them and seek advice. Employers who wish to implement an English-only policy would be wise to consult with the employment lawyers to make sure the policy is crafted and implemented in a manner that is defensible.
When done properly, everyone’s interests can be respectfully accommodated.