English-Only Rules and the Right to Speak One’s Primary Language in the Workplace

This Article analyzes the issues raised by English-only rules and the decisions discussing these rules. Part I reviews the leading cases on English-only rules. The Article then explores several issues that must be considered in deciding any English-only rule case under Title VII. Part II addresses whether speaking one’s primary language should constitute a protected right as an aspect of national origin under Title VII. This Article argues that primary language should be protected under Title VII for several reasons: the courts and the EEOC construe the term “national origin” broadly; primary language constitutes a fundamental aspect of ethnicity and national origin, and the difficulty of second-language acquisition renders primary language practically immutable for many persons whose primary language is not English. Part III argues that English-only rules have an exclusive adverse impact on language minority groups distinct from the nonexclusive effect of facially neutral rules typically considered under disparate impact cases. Part IV analyzes the current burden of proof standards for establishing discrimination under Title VII in light of Wards Cove Packing Co. v. Atonio. This Part proposes that courts should hold employers to a stricter standard than the Wards Cove standard for proving business justification in recognition of the exclusive impact of English-only rules. Finally, Part V discusses the extent of the business justification that can properly justify an employer’s use of a language restriction under the standard established in Wards Cove.