By Laurie Nooren, SHRM-CP, PHR, PHRca

The California Department of Fair Employment and Housing (DFEH) recently awarded $90,000 (in addition to a severance package) to three Latino workers,  who filed a discrimination case against Forever 21 Retail, Inc. for prohibiting them from speaking Spanish at work, even during their meal and rest breaks and morning greetings.

The DFEH believed a violation of the Fair Employment and Housing Act (FEHA) was made.  The lawsuit also accused Forever 21 of retaliating against the three workers by reducing their work hours and exposing them to hostility, harassment and national origin discrimination.

“English-only” policies need to be used only under business necessity.  The DFEH states that these policies, when applied at all times, violate the FEHA.  As stated by the DFEH Director Kevin Kish, “The Department seeks to ensure that all employees are treated equally, regardless of their national origin.  The DFEH is committed to fighting against discrimination in the workplace and English-only rules will be carefully scrutinized.  Diversity in the workplace should be welcomed, not prohibited.”

There are very limited circumstances in which an “English only” rule can be considered a genuine business necessity.  When allowed, such rules may only be applied at certain times, e.g., not during meal and rest periods.  The Department of Labor suggests the following business necessities as situations which may justify an English-only rule:

  • Communication – with customers, coworkers or supervisors who only speak English
  • To Promote Safety – in emergencies or other situations in which employees must speak a common language to promote safety
  • Efficiency – for cooperative work assignments in which the English-only rule is needed to promote efficiency
  • Performance Monitoring – To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers

Employers are encouraged to think twice before establishing such rules, and to make sure these rules are put into place for nondiscriminatory reasons only. As always, our consultants are available to answer questions or refer you to legal counsel about any such situations you may have.