January 11, 2002

Commentary

AB 800 Attempts to Justify English-Only Policy

By Lisa Marguet

I'm sure we agree that language is an expression of culture and national origin. Language is an immutable characteristic. Yet laws, such as the recently chaptered AB 800 Workplace Language Policy, continue to pass. Because Spanish speaking is often necessary and has an apparently permanent status, its elimination in any area of communication (intra-employee or with the public) cannot be termed essential to the efficient operation of a business.

AB 800 makes it unlawful for an employer to adopt or enforce a policy that prohibits the use of a language other than English in the workplace unless the policy is justified by an overriding business necessity, as defined, with notice of the policy and consequences for violation to the employees.

My main beef with the content of this law is the same as my issues with what was already written in the EEOC. The EEOC, recognizes that "the primary language of an individual is often an essential national origin characteristic," and that an English-only rule may "create an atmosphere of inferiority, isolation, and intimidation." Although an employer may have legitimate business reasons for requiring that communications be exclusively in English, an English-only rule is, according to the EEOC, a burdensome condition of employment that is often used to mask national origin discrimination and must be carefully scrutinized.

The EEOC concluded that while a limited English-only rule may be permissible in some circumstances, no such rule will be deemed lawful unless the employer can show that it is justified by business necessity and notifies the employees "of the general circumstances when speaking only in English is required and of the consequences of violating the rule." ... this sounds disturbingly similar to the new AB 800 law.

AB 800 says:

"(1) The language restriction is justified by a business necessity.

(2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction.

(b) For the purposes of this section, "business necessity" means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."

Few U.S. courts have evaluated the lawfulness of speak-English-only policies. Critics generally agree, however, that language is an important aspect of national origin. The cultural identity of certain minority groups is tied to the use of their primary tongue. The mere fact that an employee is bilingual does not eliminate the relationship between his primary language and the culture that is derived from his national origin. Although an individual may learn English and become assimilated into American society, his primary language remains an important link to his ethnic culture and identity. The primary language not only conveys certain concepts, it is itself an affirmation of that culture.

The bottom line is non-Spanish-speaking employees believe that Spanish-speaking employees use Spanish to conceal the substance of their conversations and that the speak-English-only rule is necessary to alleviate non-Spanish-speaking employees' fears and suspicions. However, even if there were evidence that a regulation mandating the use of English during working hours would calm some employees' fears and thereby reduce racial tension to some extent, this would not constitute a business necessity for a rule that has an adverse impact on other persons based on their national origin. In fact, the law is quiet the contrary to creating harmony in the workplace. The policy serves to create disruption in the workplace and feelings of alienation and inadequacy by people who were hired for their bilingual skills. Further complications with the law arise because the precise question of private conversations among public employees is not addressed.

The AB 800 law could be challenged as a violation of constitutional guarantees of free speech and equal protection under the First and Fourteenth amendments. A person's primary language is an important part of, and flows from, his/her national origin. Choice of language is a form of expression of culture.

Ironically, the people whose speech are most affected are the ones who were hired for their bilingual skills, which they use to translate for members of the public. The question remains: Why do these unconstitutional language policies exist? One poor excuse is that the rule is intended to assist supervisors to understand the work conversations of their subordinates.

Could it be that these laws continue to pass in an effort to manipulate Spanish-speakers into completely suppressing their use of their primary language? The answer is that this dispute over dialect or language choice disguises deeper racial division. The only one that will have to pay for the mistake of passing these laws are the ones who will have to pay the awards to the Spanish-speakers when lawsuits prevail due to unlawfulness - the taxpayers.

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