By Tim Twigg and Rebecca Crane
Our country has often been called the “melting pot” — a place where people come from all over the world to live and thrive. The reality, however, is that we don’t really “melt” into one culture, or even one language. On any given day, we can encounter people whose primary language is something other than English, and this can create misunderstandings, problems, and hurt feelings in the work environment.
This is particularly true since many dental offices are now more culturally diverse than ever before — from the dentist and staff to the patients. Today, many employees do not speak English as their primary language, and it is natural for them to switch from English to their native language, especially if other employees speak the same native language.
This leads many dentists to want to require employees to speak only English when at work (aka English-only policies), but can we really do this?
According to the Equal Employment Opportunity Commission (EEOC), we can’t. With a few exceptions, the EEOC generally contends that requiring employees to speak only English at work can be a form of discrimination, and constitutes disparate treatment of protected groups of individuals, and might create an atmosphere of inferiority, isolation, and intimidation based on national origin.
English-only policies can be implemented, but only in limited circumstances when the rule can be justified by “business necessity.” In other words, the requirement to speak only English must be rooted in the need to keep the business safe and efficient and, therefore, having this rule fulfills this purpose. Here are some scenarios in which having an English-only policy might be permissible:
- Communications with patients, coworkers, or supervisors who speak only English
- Emergencies or other situations in which workers must speak a common language to promote safety
- Cooperative work assignments in which the English-only rule is needed to promote efficiency
- To enable a supervisor who speaks only English to monitor an employee whose job duties require communication with coworkers or patients
If you want to implement an English-only policy at your practice, keep the following in mind to avoid liability:
- Limit the policy’s scope. Rarely will it be a “business necessity” to prohibit another language from being spoken when the employee is not working (i.e., rest breaks and/or meal periods). Apply your policy to very specific situations in which English must be spoken — for example, during patient treatment or at staff meetings.
- Don’t use an English-only policy to address harassment or behavior problems. Suspicions that employees may be badmouthing others in a different language may not be enough to support an English-only policy. Manage these issues through your anti-harassment policy or other applicable policies.
- Carefully document the business necessity behind the policy and the restrictions. This documentation should include recording the problems that result from a lack of effective communication (i.e., security and/or safety problems, patient complaints, employee complaints, etc.). Be specific about the circumstances that led to the implementation of the policy.
- Communicate the policy clearly with all employees. Administer the policy consistently with all staff members (i.e., don’t ban Spanish, but allow Italian). Consider providing the policy in an employee’s native language to ensure effective communication of what is expected. Note: If the employer neglects to notify employees of the English-only policy and then disciplines or discharges the employees, the EEOC may consider this an act of discrimination and rule accordingly.
- Look for other alternatives to an English-only policy before implementing one. If the English-only policy is ever challenged, your defense may be a lot stronger if you can show the policy was a last resort to solve some problems.
When a violation of the English-only policy occurs, bring it to the individuals’ attention and document the type of violation and any resulting disciplinary action you take. (Call our office for a copy of our Employee Counseling Memo, Form No. 418.) The policy and the documentation serve as an excellent defense against any charge of discrimination.
If you think an English-only rule is right for you, proceed cautiously, bearing in mind the suggestions and recommendations provided. Not doing so may bring about some liability by a staff member who thinks he or she is being discriminated against. Carefully consider whether implementing this policy is worth the risk since you may have to defend yourself in front of a judge and jury, and you may not prevail.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the website at www.bentericksen.com.
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