In the Trenches: English-only policy a discrimination suit waiting to happen

An Acme employee institutes an English-only policy in his plant filled with second-generation workers and the company ends up facing a union backlash. Find out the details in our monthly In the Trenches, where only the names have been changed to protect the innocent.

When they first settled here during the mid-1970s, no one was sure what to make of the several hundred Vietnamese immigrants who carved out a nascent Asian community near the industrial area on the other side of Interstate 13. True to the traditional immigrant path, they either established small shops or filled the entry-level positions at every business in the region. They worked hard, prospered nicely and paid cash for purchases.

These immigrants possessed a collective work ethic that dovetailed well with the American business style. It didn’t take long for businessmen to realize that many of these odd-looking people were pretty darned clever, some even highly educated. The more forward-thinking employers found that it made business sense to promote a few of the town’s new citizens to higher positions in the corporate hierarchy.

One such example is at the Acme ironworks plant, where about 30 second-generation Vietnamese now form the mainstay of the unionized maintenance and millwright departments. In this potentially dangerous job, they display simian-like agility on heavy equipment, but always avoid stupid mistakes that can hurt someone badly.

Although they’re fully fluent in American English, they mix it with their native language in equal measure when communicating via Acme’s walkie-talkies. As effective as this was, it was a problem for one of the newer Caucasian maintenance technicians, who complained to Ike Arrumbha, the union steward, that he couldn’t understand the gibberish coming through his radio.

Ike took the complaint to Earl Kahn, the maintenance manager, who promised to look into the matter. Earl then went to Ella Mentarie, the plant’s HR manager, for advice on handling the complaint. The solution is easy, she told him. Simply direct the maintenance crews to speak only English when using the walkie-talkies for Acme business, except where another language is essential. She added that it might even make sense for other departments to encourage employees to use only English for Acme business.

Earl returned to the plant and keyed his radio to ask the maintenance and the millwright foremen to come to his office before lunch. That’s when he told his two crew chiefs that their workers can’t use the Vietnamese language on the job any longer. Suddenly remembering what else the HR director said, Earl also informed the two that Acme would be instituting an English-only policy soon.

That afternoon, word of the new directive reached Ike. He responded by sending an e-mail to Al Sazleraine, the plant manager, to record the union’s concerns about a new English-only policy for the maintenance area and the similar upcoming plant-wide policy. Ike mentioned he was blindsided by this policy and reminded Al that Acme is a union shop, with procedures in place for instituting such changes. He added that the technicians take pride in their bilingual fluency. Besides, he argued, it’s not a hindrance because using the native language is irrelevant when technicians are performing their assigned duties effectively.

Al replied via e-mail that Acme has a good rationale for instituting the language policy. The move is meant to ensure effective communications with every employee in every department, to improve morale, to help prevent misunderstanding and, above all, promote safety of life and property. Al noted that the English requirement applies only during normal working hours and while employees are engaged in Acme business.

Furthermore, he added, Acme has ethnicities other than Vietnamese on the staff and the company has a right to seek procedural uniformity in its operations. Hence, establishing the requirement that the maintenance technicians and millwrights speak only English is proper.

When Ike read the missive, he sent a simple message that wouldn’t be misunderstood by any one. He said that Acme’s English-only rule constitutes a discriminatory and hostile work environment. It violates the Vietnamese workers right of free speech. And, the union is going to do something about it.

How could this situation have been avoided? Does the melting-pot concept of English-only have any real importance nowadays? Does it really matter, considering that the work is getting done? Is someone playing the race card here? Is free choice of language guaranteed by the First Amendment? Are private companies bound by it? Does the company have an obligation to provide English language classes to the workers so they can conform to the policy?

An academician says:

A few years back I did some work in a unionized soap manufacturing facility in which the mixed-gender workforce was one-third Polish-speaking, one-third Spanish-speaking, and one-third African-American. With the blessings of the union, the plant manager formed a plant-wide “Communications Committee,” which included a cross-section of the ethnic groups in the plant.

The committee met regularly and dealt with the same communication problems that Acme is facing, plus a variety of other issues. For example, radios were allowed in the plant, so the committee needed to avoid having 10 stations blasting in at least three different languages. And then there were the pinups in the locker room — some males thought they were inspiring and couldn’t understand why some females found the images offensive.

Collaboration was constantly emphasized in committee meetings, as well as the need for groups to work together to make “soap” a better place for everybody. The rest of the employees almost always accepted the committee decisions, although the committee sometimes had to sell the workforce on the wisdom of their decisions. And, yes, there were some issues that the committee couldn’t discuss — issues that were specifically reserved for management or union decisions, such as work rules. All in all, the committee probably was 95% effective in dealing with the matters they faced.

I like the model and have seen it work well in other facilities. The point here is that too often management thinks it must solve every workplace problem that arises, and usually does so by issuing policies and directives. Many workplace issues might be better resolved through collaborative efforts by the groups involved rather than dictates from management. A good general rule is to let the people most directly affected by the problem solve it. That way, it will stay solved. The communication issue at Acme probably could have been easily solved by the maintenance crew themselves. The more that management got involved in the problem, the messier the whole thing became.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Acme got a bit too carried away in its zeal to conform employee speech to the mother tongue. The Equal Employment Opportunity Commission (EEOC), which enforces the federal anti-discrimination laws, has long scrutinized English-only rules in the workplace. Unless an employer can justify an English-only rule by business necessity, the EEOC views the rule as unlawful.

If two of Acme’s Vietnamese-American employees communicate on a walkie-talkie in their native language, it should be no business of Acme’s. On the other hand, if the Caucasian maintenance technician was required to be part of that communication and to understand it to do his own job, Acme legitimately could have required these employees to speak English under these circumstances. But Acme went too far by banning any language on the job other than English. All Acme had to do to achieve its business purpose was to notify employees that necessary work communication with employees who only speak English must be conducted in English.

Ike missed the point somewhat in claiming that banning their native tongue produced a hostile work environment for the immigrants and violated their right of free speech. The law doesn’t require an employer to tailor its work environment to the preferences of a particular ethnic group.

The right of free speech, guaranteed by the First Amendment to the Constitution, only prohibits the government from interfering with that right. As a private employer, Acme is free to prohibit any type of speech it wishes, so long as that prohibition doesn’t contravene another law, such as the discrimination laws.

Ike may have missed another avenue for attacking the English-only rule. Depending on the language of the union contract with Acme, the company may have had an obligation to bargain with the union before instituting the rule because it’s a term or condition of employment. An employer that has a contract with a union generally can’t institute unilateral changes in working conditions without notice to the union and providing it with an opportunity to bargain about the change.

No law requires an employer to provide English classes for foreign language-speaking workers. However, many employers have found it helpful to do so. In this case, because Acme’s Vietnamese workers are fluent in English, Acme might want to forego this step.
But maybe Earl Kahn could take a class in Vietnamese.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:

Earl was right to get advice from HR on how to handle this situation. This was a positive step on his part. Sadly, not only did HR marginalize the issue without considering the broader implications (a serious error within the HR domain, about which fluency should be expected), he went on to overstate what was suggested to him by the HR manager. These two mistakes form the foundation for this entire case.

Although Ella didn't actually use the word “policy,” she implied it. Additionally, both she and Earl should have known better than to attempt to make a significant unilateral change in a unionized environment.

Another fundamental mistake by Earl was elevating this issue to the level of policy based on the complaint of only one person. Both Ike and Earl should have elicited a bit more information from the original complainant, and determined the extent to which the language difference truly affected the complainants’ job.

Next, a little diplomacy would have gone a long way here. Rather than bringing in the two crew chiefs and dictating an edict to them with no discussion, he could have asked for their input on the issue. Instead, this is now an inflammatory, emotional issue that will require hours of negotiation to repair.

Ella, Earl and Al should have known better than to take or recommend action without drilling down to reveal the severity of the problem; and any manager in a unionized environment ought to know better than to make the first act a hardball pitch.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

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