Should the Federal Government Regulate the Spoken Language That Employees Use in the Workplace?

07/10/2014 12:57 pm ET Updated Sep 08, 2014

Employers have the right to hire people consistent with their needs and bona fide qualifications but the Equal Employment Opportunity Commission (EEOC) is regulating rules concerning the spoken language in the workplace.

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless they are reasonable (sic) necessary to the operation of the business... An English only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.

Further, employers cannot discipline employees for violating the rule unless there has been prior notice of consequences of a violation.

But does the federal government hold the qualifications to determine individual employer communication needs? And do these constraints harm business owners' ability to effectively run their businesses?

A recent case has raised awareness of this requirement in the form of a lawsuit filed by the EEOC vs. Wisconsin Plastics, Inc. The company has been accused of violating Title VII of the Civil Rights Act that prohibits discrimination based on national origin, particularly language. Asian and Hispanic employees were allegedly selected for layoff due to non-proficient English communication skills. The EEOC claims that English language skills were not needed to perform their jobs and forcing them to speak English violates employees' civil rights, violating federal law.

The company with a vast racially diverse staff claims they reduced its workforce using a combination of skills, behaviors and job performance in a layoff decision. They claim that communicating in English is critical to performing the job and renders some employees unable to effectively do their work. According to the EEOC, the company, previously awarded for their commitment to diversity, has allegedly violated the civil rights of the employees selected for the layoff due to their limited English-speaking skills.

In 2009, the EEOC issued a rule making English language requirements illegal, considering it a "burdensome term and condition of employment."

We see job postings that require other languages besides English that dramatically change the employment playing field. Job candidates that would otherwise be the most qualified candidate for jobs are deemed "unqualified" without the ability to speak languages other than English. Many view this is a double standard, eroding definitions of qualified candidates for English-speaking job seekers.

Many employers will shy away from hiring non-English proficient speaking employees for fear of claims by the EEOC if communication problems occur on the job.

Employers are getting public pressure to assure the fluency of English-speaking staff. Customers demand that employees are able to speak English to understand their concerns. A 2013 Gallup Poll revealed that 96 percent of Americans believe that it is essential or important that immigrants speak English. This is being reflected in workplaces, particularly customer service issues.

In a TV commercial about a company that protects and improves computer performance, owner Rob Cheng of encourages customers to purchase their services, cites the distinction of employees "whose first language is English." He is directly addressing needs and desires of the American purchasing public, or would the EEOC view his marketing as discriminatory?

Costly reins and constraints exist and if employers don't protect themselves, by making wise staffing and disciplinary decisions, they may be subjected to claims from the EEOC. But in reality, employers need the ability to effectively and efficiently communicate with employees at all times in their workplace.

• Take a critical look at your requirements and assure bona fide qualifications are maintained for each position. Make sure you could defend your language requirement from the standpoint of providing customer service and safe communication practices.
• If your customer service functions are performed offshore, take careful note of the consumer demand to be able to effectively communicate.
• Most employers respect and comply with the long-standing philosophy of hiring the most qualified candidate. Make sure to hire the right staff to do the right job. Understand any limitations of your staff and address those issues without delay.
• Since you will always have the need to communicate in the common language, consider whether you have the need to provide translation services.
• Set appropriate standards for communication in the workplace for efficiency and safety, both areas of solid EEOC limitations. Communicate those standards to employees and identify sanctions for non-compliance.

The reality, these constraints on American businesses cannot be understated. It is crucial for them to understand their obligations for EEOC compliance, and create and maintain realistic standards and qualifications before experiencing a challenge.

Is this discrimination or simply the need to effectively communicate in the workplace?