English-Only Policy in the Workplace? Not So Fast
We’ve blogged about the role of legal translation services in avoiding language discrimination lawsuits. Today legal translations are becoming even more important for human resources departments in light of the fact that there are jobs in which English fluency in the workplace is necessary. There are other jobs, however, in which job performance has nothing to do with the ability to read or speak English. If your company is contemplating, or already has, a policy with regard to an employee’s proficiency with the English language, there are some important considerations to keep in mind before executing that policy. The most important consideration is to avoid an English-only policy running afoul of our civil rights laws. The case of the U.S. Equal Employment Opportunity Commission v. Wisconsin Plastics, Inc., discussed below, is a fascinating example where a company did just that and found itself settling a discrimination lawsuit because of the inappropriate way it attempted to execute on its English-only policy.
That said, HR professionals, risk managers, and in-house counsel should not forget that an English-only policy does not need to be the only answer. If you have a workforce that is made up of some non-English employees, legal translation services could be the key to avoiding any Equal Employment Opportunity Commission (EEOC) issues, while still remaining productive and profitable. All Language Alliance, Inc. provides excellent translation services for legal and workplace matters. Accordingly, if you need to interact with your non-English speaking employees to, for example, discuss HR policies or employment contract terms, having a legal interpreter on site can bridge any gap in communication.
Where Legal Translation Was Not Used, and the Employer Ended Up Having to Pay to Settle a Discrimination Lawsuit: EEOC v. Wisconsin Plastics, Inc.
Between October 2012 and January 2013, Wisconsin Plastics, Inc. (WPI) laid off 38 of its 114 production operators. Of those 38 fired employees, 74% were Asian, and 8% were Hispanic. During that same time period, WPI hired a number of new production operators who were mostly Caucasian. Because of those personnel changes, the Asian population of production operators dropped from 75% to 49%, while the number of Caucasian operators rose from 14% to 43%.
Not surprisingly, the EEOC, joined by a number of the laid-off production operators, sued WPI in federal court. The main allegation against WPI was discrimination based on race and/or national origin, in violation of the Civil Rights Act of 1964. The EEOC claimed that WPI’s plan was to change the racial/national origin makeup of the workforce from predominantly Asian to predominantly Caucasian.
WPI’s response to the allegations was rather curious. WPI gave varying reasons for its hiring and firing decisions. They first suggested that employee performance was to blame, but later claimed that lack of profitability was the culprit. Those reasons, however, were easily debunked. Many employees did not show deficient performance, and in some instances, the employees did not receive a performance test until the day they were terminated. In addition, economic problems could not justify the layoffs because WPI was hiring new employees and some of its best sales years occurred during the layoffs.
Eventually, WPI stated before the federal court that the reason for the layoffs was because the terminated production operators could not speak English. Strangely, WPI also admitted, however, that the ability to read or speak English had nothing to do with adequate performance in the job of a production operator. While making such inconsistent concessions, WPI asked the federal court to dismiss the lawsuit for lack of any proof of discrimination.
The federal court, however, saw things differently. The court noted that WPI’s firing non-English speaking employees because they could not speak English could not be justification for the firings. WPI itself conceded that English proficiency was not needed to successfully do the job of production operator. Therefore, a reasonable jury could conclude that WPI’s intent was to discriminate, and used the ability to speak English as a proxy to achieve their discriminatory goal. Accordingly, the court rejected WPI’s argument and allowed the case to go to trial.
Approximately one month before this writing, the case settled before going to trial. WPI ended up paying the fired employees $475,000. It also agreed to maintain a workplace free of discrimination or retaliation towards non-English speaking, or any other, employees.
Legal Translation Can Solve the English-Only Policy Problem
In order to avoid the fate of WPI, be sure to carefully distinguish between those positions in your organization where English fluency is required, and those where it is not. Even the court in the Wisconsin Plastics case acknowledged that there are instances in which proficiency in English is required to perform certain job duties. However, it is unlawful to use language as a proxy to engage in discriminatory practices.
Legal translation services can help you and your organization if there is a legitimate issue with regard to non-English speaking employees. Communication in the workplace is vital for certain things, such as contract negotiations and HR policies and procedures. Non-English speaking employees need not be laid off to ameliorate those problems. Rather, employ a legal translator to make sure that you and your employees are always on the same page. Keeping lines of communication open with all your employees is possible with a help of a professional language translation service. We are just an email away.