An employer in Manhattan “may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.” 29 C.F.R. § 1606.7. However, absent a demonstrable business necessity for a business’s rule requiring its workers to speak only English (rather than Spanish or another language) at work, the courts in Manhattan will likely determine the business’s rule to constitute national origin discrimination violative of Title VII.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), prohibits public employers and private employers with 15 or more employees from discriminating in all terms and conditions of employment on the basis of, among other protected characteristics, national origin. The guidelines promulgated by the federal Equal Employment Opportunity Commission (the “EEOC”) state that “[t]he primary language of an individual is often an essential national origin characteristic,” and that speak-English-only rules require “close scrutin[y]” because they may violate Title VII by “creat[ing] an atmosphere of inferiority, isolation, and intimidation based on [a person’s] national origin.” 29 C.F.R. § 1606.7(a).
The EEOC guidelines further provide that while a limited English-only rule is permissible in some circumstances, such a rule will be deemed unlawful unless (i) the employer can show that it “is justified by business necessity” and (ii) the employer notifies the employees not only of “the general circumstances when speaking only in English is required” but also of “the consequences of violating the rule.” 29 C.F.R. § 1606.7(b), 1606.7(c).
In EEOC v. Sephora USA, L.L.C., 419 F. Supp.2d 408 (S.D.N.Y. 2005), the U.S. District Court for the Southern District of Manhattan held that an employer’s policy requiring sales employees to speak English when customers are present is lawful, is justified by business necessity, and does not impose a disparate impact on Hispanic employees. The Sephora USA Court explained: “When salespeople speak in a language customers do not understand, the effects on helpfulness, politeness and approachability are real and are not a matter of abstract preference. . . . [P]romoting politeness to customers is a valid business necessity for requiring sales employees to speak English in their presence.”
According to section 13 of the EEOC Compliance Manual (2002), the following are some situations in which business necessity would justify an English-only rule:
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