Do You Have Spanish-Speaking Workers? Avoid These Legal Pitfalls

Look at the news on any given day and you’re likely to see headlines around the proposed wall, immigration raids and detention camps. And many videos have gone viral of people angrily demanding that others “speak English” in public places.

In this heightened political sensitivity around immigration issues, it’s essential for employers and managers to know the laws surrounding Spanish-speaking employees. These guidelines will help ensure you’re not violating employee rights and will help promote a peaceful, productive work environment.

Harassment Based on National Origin

First, let’s review the most obvious and severe legal issue: Harassment. Ethnic slurs and other verbal or physical conduct because of nationality may be illegal if they are:

• Severe or ongoing
• Create an intimidating, hostile or offensive work environment
• Interfere with work performance or
• Negatively affect job opportunities

Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets (such as making fun of a person’s foreign accent) or comments like, “Go back to where you came from.” This behavior can be considered harassment whether it’s conducted by a supervisor or coworker — or even a third-party such as a customer or vendor.

Discrimination Based on Accent

You’re probably not surprised to learn that harassment is illegal if it’s based on nationality. But what about foreign accents? Can you legally refuse to hire or promote someone because of his or her accent? The answer is yes, under certain circumstances. Treating workers differently because they have a foreign accent is acceptable only if the accent significantly interferes with being able to do the job.

Generally, businesses can base employment decisions on accent if strong verbal communication in English is required to perform the job — and the employee’s foreign accent interferes with his or her ability to communicate in English. Jobs that may meet these requirements include:

• Teaching
• Customer service
• Telemarketing to English-speaking clients

If these conditions are not met, it’s illegal to discriminate against applicants or employees based on their foreign accents.

Workplace English-Only Rules

In today’s increasingly diverse workforce, it’s common for businesses to have employees who speak other languages in addition to English. And in some workplaces, this has caused problems. For example, two cashiers speak Spanish in front of a customer who later complains about rude customer service. Or an employee confides that she thinks coworkers are making fun of her because she can’t understand their language.

Many employers try to circumvent these situations by implementing an English-only policy. But that’s risky. The Equal Employment Opportunity Commission (EEOC) has stated that rules requiring employees to speak only English in the workplace may be illegal unless the employer can show that they are justified by business necessity.

Specifically, the EEOC states a rule requiring employees to speak only English in the workplace at all times, including breaks and lunchtime, will rarely be justified. Additionally, an English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently. Circumstances in which an English-only rule may be justified include:

• Communications with customers or coworkers who only speak 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

Further, even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

Additional Responsibilities for Employers

If you have Spanish-speaking employees, it’s crucial to understand all your legal rights and responsibilities. For information on special labor law posting requirements for businesses with Spanish-speaking employees, view Poster Guard’s free, on-demand webinar. Poster Guard offers federal postings in Spanish — as well as Spanish postings for all states.