Immigration Article of the Day: The Role of Labor Law in Challenging English-Only Policies by Lauren M. Weinstein

The Role of Labor Law in Challenging English-Only Policies by Lauren M. Weinstein

Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 47, 2012

Abstract: Policies requiring employees to speaking English only in the workplace disadvantage bilingual and non-English speaking employees. Employees typically challenge these policies under Title VII’s prohibition on discrimination on the basis of national origin, however, those challenges have been largely unsuccessful due to (i) permissive business justification analysis, and (ii) lack of deference to EEOC guidelines prohibiting linguistic discrimination. This article proposes that English-only policies violate Section 7 of the NLRA, which protects the right to communicate at the workplace. Because English-only policies naturally interfere with the right of some employees to communicate in the language in which they are most comfortable they can constitute a formidable obstacle to unionization efforts. Moreover, challenges under the NLRA may have a higher likelihood of success because the business justification analysis is more demanding under the NLRA, and there is no deference problem given that Section 7 protections are well-established under Supreme Court precedent. Despite some of the shortcomings of the NLRA, namely a lackluster remedial regime, Section 7 challenges provide a promising avenue for employees or labor organizers seeking to challenge English-only policies.

KJ