Watch your language: Can business owners make an English-only policy?

In 2003, Harry and Leona Tomlinson, the married co-owners of Harvest Medical Clinic Inc., sent out written notices that workers could only speak English in the clinic to patients and each other. That month, they fired nine Hispanic employees. The Tomlinsons say they fired the employees because they were downsizing. The employees say the Tomlinsons fired them for speaking Spanish at work, noting that replacements were quickly hired.

On September 14, 2005, the federal district court in Phoenix, Arizona, found that the Tomlinsons overstepped Arizona's guidelines.

The court battle

The employees attempted to win back their jobs by going to their regional Equal Employment Opportunity Commission (EEOC) office. In 2004, the EEOC decided to fight the case in court, stating that the Tomlinsons violated Title VII of the Civil Rights Act, which prevents employers from discriminating against workers based on workers' national origins. The employees won. The court held that the Tomlinsons fired the employees without asking them to abide by the English-only policy. The court decided this action was unwarranted and illegal.

The Tomlinsons also lost because the court decided that speaking English-only in the clinic was not a business necessity. The Tomlinsons had said it was.

They said the employees had driven away customers by using Spanish to criticize the clinic's management and a curse. In a preliminary investigation, the EEOC found no evidence any of the employees at Harvest had used profanity or that the clinic had lost business.

It's OK to have an English-only policy at work, but there are limits. While states allow employers to institute English-only policies so that customers feel comfortable and the business runs smoothly, states do not allow employers to discriminate against employees based on race or national origin. Since language is tied so tightly to national origin and race, the border between business needs and discrimination is a little blurry.

Business necessity

The Tomlinson's loss reflects a governmental trend of forcing employers to give up defective English-only policies. Most states only protect English-only policies that are narrowly tailored and serve a "business necessity." California leads the nation in defining what is acceptable in an English-only policy. In 2002, the California legislature passed Assembly Bill 800 into law, which says that employers must justify an English-only policy with a business necessity and notify employees when the policy must be observed.

Like many states, California did not always guard employees' right to speak a language other than English at work. In 1993, the 9th Circuit Court of Appeals allowed Spun Steak Company, a South San Francisco meat-packing business, to fire two Hispanic employees for speaking Spanish on the job.

Spun Steak said the employees used Spanish to make racist comments against an Asian and a Black worker. The Hispanic employees filed suit against Spun Steak, saying that the firing was unjust.

They won, but the company appealed. The 9th Circuit Court reversed the lower court's holding in favor of Spun Steak. The judgment in the case, Garcia et al. v. Spun Steak Co., favors employers even today. In 1994, the United States Supreme Court refused to hear Garcia, meaning states can still make individual rules about English-only policies.

The EEOC's national office would have preferred that the Supreme Court reverse Garcia to make a nationwide rule on English-only policies. It would like to prosecute discrimination uniformly. The latest English-only case in which the EEOC has become entangled could force the Supreme Court to create a nationwide rule about English-only policies. Surprisingly, it does not involve Spanish.

Another similar case

In 2000, the Kidman family, longtime owners of R.D.'s Drive-In in Page, Arizona, instituted an English-only policy. R.D.'s is a tiny restaurant with a staff of about 20. It is located next to the huge Navajo reservation in northern Arizona. Most of its customers and employees are Navajo. The Kidmans say they instituted the policy because Navajo-speaking employees made lewd comments about the customers in Navajo. They think this activity drove away business. Four employees who left the restaurant denied that they talked obscenely. The employees say they were fired for speaking Navajo.

The Kidmans have run up huge legal fees for continuing to insist that their employees speak English. In 2003, ProEnglish, a conservative group based in Arlington, Virginia, stepped in to pay their bills. EEOC v. Kidman is currently in the oral arguments stage in the 9th Circuit Court.

The Kidman's lawsuit illustrates how employers and employees can disagree about whether an English-only policy is actually racial discrimination. Employees who are not allowed to speak their native language on the job have stated that they feel singled out because of their national origin. They do not understand why they cannot use the language they grew up speaking. They feel that an English-only policy deprives them of their right to express their culture. Employees also say that English-only policies do not allow them to work effectively.

One of the employees fired from Harvest Medical Clinic Inc., mentioned in a news story that the English-only policy disrupted work because 75% of the clinic's patients spoke only Spanish. That employee, Carmen Marquez, said that it would not make sense for employees to use English with these patients. Another employee, Susan Villanueva, said that she still does not know why the Tomlinsons fired her. "I was very offended and thought these rules were ridiculous," said Villaneuva. "Did they just wake up and decide no more Spanish?"