Saturday, July 07, 2007

Enlightened Employers Promote Worker Communication

The English-Only debate rages on. For those in favor of banning languages, please remember this is not about whether the government should translate every document into every language. It is not about what language workers speak. It's not even about whether employers can require workers to speak English. These are the extreme positions that often confuse the issues and turn them into a big heap of Jello that no one can grasp or even hope to solve.

Discreet Issue. It's actually very discreet. Challenging English-Only policies is about employers not harassing people because they're "not from here" - not banning entire languages and threatening termination for speaking. Termination for speaking - that's sick. It's also about not handcuffing the EEOC in carrying out its statutory duty to enforce Title VII.

Tenth Circuit Ruling: Deference to EEOC. The Tenth Circuit has ruled that an employer policy prohibiting employees from speaking any language except English at work could violate Title VII. Although other courts had rejected EEOC guidelines regarding English-only policies, the Court in Maldonado v. City of Altus, explained that "it is enough that the EEOC, based on its expertise and experience, has consistently concluded that an English-only policy, at least when no business need for the policy is shown, is likely in itself to ‘create an atmosphere of inferiority, isolation and intimidation’ that constitutes a ‘discriminatory work environment.’" In Maldonado, the court reversed summary judgment on Title VII disparate impact and disparate treatment claims because there was little, if any evidence, of any business necessity for the policy. Maldonado,, (10th Cir. 2006).

The Policies Themselves As Expressions of Hostility. According to the Tenth Circuit, the very fact that the City would forbid Hispanics from using their language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions. The Court explained that the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language. According to the Tenth Circuit, the policy itself may create or contribute to the hostility of the work environment, and not just the effect of the policy in evoking hostility by co-workers. Here's the analogy the court offered: A policy requiring each employee to wear a badge noting his or her religion, for example, might well engender extreme discomfort in a reasonable employee who belongs to a minority religion, even if no co-worker utters a word on the matter.

Enlightened Employers Promote Communication. As a preventive measure, many employers easily could offer a benefit to their workers to offer English classes, Spanish classes, or other communication enhancers. Those people who are afraid that "they are talking about 'us' in Spanish" or whatever language, can learn the language and get through their personal fears. Note that many employers offer gym memberships, pet insurance, and myriad benefits and other kinds of training programs.

Enforce Anti-Harassment Policies. Or for those employers who can't afford to offer additional (or any) benefits - here's a big step in the right direction. Simply enforce the anti-harassment policies promised in the handbooks.

Copyright, 2007 (c). Kimberlie K. Ryan, All Rights Reserved.

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