Last week’s free speech ruling from the U.S. Supreme Court in the “Bong Hits 4 Jesus” case reminds us that employers, like educational institutions, have the right to regulate speech in the workplace. Private sector employers are unrestricted by the First Amendment, which applies only to government action. But there are legal restrictions applicable to private employers as well. One such restriction that is often misunderstood by employers is single-language policies. Usually they’re English-only policies, but the same rules could apply to any employer’s policy limiting the language employees may speak on the job.

How the Workplace is Like High School

In Morse v. Fredrick, the United States Supreme Court ruled that a school district could limit a student’s speech when he was attending a school-sponsored event. The school permitted its students to attend the Olympic Torch Relay as it passed through Juneau, Alaska. One student brought and displayed a 14-foot banner that said “Bong Hits 4 Jesus.” The school’s principal believed the banner promoted illegal drug use. The Court agreed that the principal’s interpretation was defensible. Because the student was attending a school sponsored event, the principal had the right to apply the school’s policy that students may not advocate illegal drug use during what essentially was class time.

A manager and a high school principal have similar interests in ensuring that everyone – employees or students – gets along without offending one another. Therefore, both are likely to prohibit “fighting words,” or comments that are likely to stir racial tensions. Employers must ensure speech at the workplace does not violate anti-harassment or discrimination laws. Employers also have a bottom-line interest in creating an environment that makes their customers comfortable. Imagine the headache a retail manager would have if an employee decided to unroll a 14-foot banner that said “Bong Hits 4 Jesus” in the workplace.

Because we value free speech so strongly, many Americans do not realize that the First Amendment applies only to government conduct; employees have no right to free speech under the First Amendment. The California Constitution is broader and regulates certain private activities, but not in this context. Employers may restrict employees in what they say while on the clock; almost everyone who receives a paycheck has been told to stop talking and get back to work, at least once.

Limits of the Limits

An employer’s right to limit speech is not unlimited. For example, employers are prohibited from restricting employees from talking about forming a union, from engaging in political activity, or from complaining about working conditions, among other things, but those are subjects for another column.

The employer also may not use its power to control speech to penalize employees because of their national origin. An employee’s native language is closely connected to their national origin, a protected category under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (“FEHA”). Just as it is illegal for an employer to say “we don’t hire Chinese applicants,” it would be illegal to say “we don’t hire applicants who speak Cantonese,” because it would have the effect of excluding many Chinese employees because of their national origin.

On the other hand, if an employer does business in English, it has a legitimate business reason to want employees who speak and understand sufficient English to do their jobs and communicate with their co-workers, supervisors and customers.

It is also illegal to maintain segregated employment in which employees are separated by race or national origin. Therefore, an employer may communicate with its employees in English or as many languages as necessary, but it may not separate work groups by race or national origin.

When Can an Employer Tell an Employee What Language to Speak?

The subject of English-only rules in the workplace can create very strong feelings. Some may believe it is rude to speak in a language that others present do not understand. At the same time, speakers of languages other than English may believe that complaints about speaking another languages stem from racism or unfounded suspicion of what is being discussed.

U.S. Equal Employment Opportunity Commission (“EEOC”) regulations state that a restriction to speaking English at all times “disadvantages an individual’s employment opportunity on the basis of national origin.” When applied at all times, EEOC believes that -English-only rules “create an atmosphere of inferiority, isolation, and intimidation based on national origin which could result in a discriminatory working environment.”

When applied only at certain times (for example, while a disc jockey is making radio announcements on an English-language station, or when speaking to a customer, or when a nurse gives a report of a patient’s health condition), the EEOC regulations state that English-only rules are permissible only “where the employer can show that the rule is justified by business necessity.”

Under the FEHA, it is an unlawful employment practice to prohibit the use of any language in the workplace unless the restriction is justified by business necessity and the employer has notified its employees of the “circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction.” Cal. Gov. Code § 12951. “Business necessity” is defined as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”

The leading federal case in our jurisdiction on whether an employer may require employees to speak English while at work is Garcia v. Spun Steak Co., decided by the federal Ninth Circuit Court of Appeal in 1993. The Spun Steak Company adopted an English-on-the-job rule (excluding breaks and lunch time) to protect its non-Spanish-speaking employees from being ridiculed in Spanish without their knowledge. Two bilingual employees were reprimanded for violating the rule and brought a lawsuit, although it appears accommodation was made for two other employees who could only speak Spanish. The Court disagreed with the EEOC regulations and held that an English-only rule does not always violate Title VII.

The decision made a large impact on both sides of the Official English debate, but actually provides little guidance for employers seeking to comply with the law at the same time as efficiently running their business. Although it disagreed with the EEOC’s position that an employer may never adopt an English-only rule, the court did not say they were always legal, either. Further, neither the court nor the EEOC regulations discuss what business justifications are sufficient to support an English-only policy.

Spun Steak did offer a justification; that non-Spanish speaking employees felt — rightly or wrongly because they admittedly did not speak Spanish – that they were being insulted in Spanish. The English-only policy at least required employees to insult each other openly. In addition, the company noted that there were some safety benefits to using a language common to most employees and the on-premises USDA inspector. The court did not give permission for an employer to use an English-only policy to harass, ridicule, or discourage non-English speaking employees.

There are few cases evaluating English-only policies. Employers in those cases have pointed to safety issues, customer service, and other business-related justifications for their policies. In other kinds of cases, courts have concluded that helpfulness, politeness and approachability to customers, and stemming hostility between employees, are valid business necessities that support employers’ rules requiring English to be spoken, at least during certain times. In one decision, the employer was found to have acted lawfully by terminating an employee who was not bi-lingual, as required by its policies.

Should Your Business Have a Common Language Policy?

Employers wishing to avoid legal challenges to English-only or other language-based policies should carefully evaluate their business needs. Some businesses will want or need to operate in more than one language. In those cases, proficiency in the languages used should be considered just like any other job qualification. Just as it would be presumptuous for a restaurant to assume that a French applicant automatically knows how to cook soufflí©s, an employer should not assume that an applicant can speak a language simply because of his or her national origin.

In other cases, an employer will need to ensure its managers and employees can communicate with each other and customers or patients clearly. A rule that requires English at all times regardless of the work performed by the employee is probably too strict under the FEHA. The FEHA also requires the employer to consider whether a less restrictive policy would serve the same purpose. A rule that asks employees to treat each other with courtesy and address managers, coworkers, and customers in a language they understand likely is permissible.