Friday, August 17, 2018

English... The Only Gaming In Town?

Do some co-workers feel ignored and frozen out of their own workplace, yet are afraid to speak up to anyone about the issue - for fear that complaining could mark them as a racist? 



Of notable interest in recent years is the "English-Only" rules sometimes adopted by employers.  And sometimes these rules are adopted with some forethought, and sometimes they are not.

There is understandable frustration for people of all languages who are are working alongside each other, yet either not bi-lingual, or bi-lingual yet have differing primary languages.

Of greatest concern is clearly this: Are English-Only rules racial discrimination? They certainly can be. Yet also, perhaps they are not. Perhaps they provide a unique opportunity for your team to understand the importance of interpersonal communication - and how it affects the feelings and ultimately the performance of each individual worker.

Let's take a closer look.

The best summary I've found on the topic is pasted here from Nolo.com:


Q:  I work at a large department store. Recently, my employer posted a policy prohibiting us from speaking any language other than English while at work. Is this legal?


A:  Courts will look carefully at English-only rules to determine whether they are discriminatory and illegal. Because the language we speak is closely connected to our nationality, English-only rules may very well discriminate on the basis of national origin.
Generally, employers have to show that there is a business necessity for the policy. For example, if an employer can show that safety requires all workers to speak a common language, or that an English-only rule is necessary to serve customers who speak only English, that would constitute a business necessity.
Even if an employer has a good reason for requiring employees to speak English, however, it cannot adopt a policy that is too broad. For example, requiring employees to speak English to customers might pass muster; prohibiting employees from speaking any other language even while on breaks and making personal phone calls might not.


Nolo seems to have covered the basics. Yet for a deeper dive, let's go below to the U.S. Department of Labor, from where, I am fairly certain, Nolo began their own search before posting their above opinion:


Civil Rights Center (CRC)

What do I need to know about... English-Only Rules

The Department of Labor benefits from the substantial contributions of employees who are fluent in languages other than English.
As an employer that promotes the benefits of a diverse workforce, DOL recognizes that employees who speak languages other than English may wish to communicate in another language outside of performing their job duties, such as in casual conversations with coworkers or while engaged in personal matters.
In most circumstances, employees' communications in languages other than English should not be limited to only those official functions for which they were hired. Employees' right to speak in languages other than English may only be curtailed in certain narrowly-defined situations.



For example:
OSHA safeguards the rights of workers to safe and healthy working conditions by setting and enforcing standards, and by providing training, outreach, education and assistance.  Fluent in a variety of languages, OSHA’s bilingual staff ensures that programs and services are effectively communicated to all workers and employers.
WHD enforces federal labor laws, including laws concerning the minimum wage, overtime pay, child labor, and migrant workers.  WHD strategic initiatives focus on industries that employ vulnerable workers, including individuals with limited English proficiency.  In order to meet the needs of these Americans, over 60 percent of WHD’s investigators are multilingual, speaking nearly 50 different languages.
EEOC Regulation 29 C.F.R. § 1606.7(a) provides that a rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. Such a rule is presumed to violate Title VII. Therefore, a speak-English-only rule that applies to casual conversations between employees on break or not performing a job duty would be unlawful.



A workplace English-only rule that is applied only at certain times may be adopted only under very limited circumstances that are justified by business necessity. 29 C.F.R. § 1606.7(b) Such a rule must be narrowly tailored to address the business necessity. Situations in which business necessity would justify an English-only rule include:
  • For communications with customers, coworkers, or supervisors who only speak English
  • In emergencies or other situations in which employees must speak a common language to promote safety
    • For example, a rule requiring employees to speak only English in the event of an emergency and when performing their work in specific areas of the workplace that might contain flammable chemicals or other potentially dangerous equipment is narrowly tailored to safety requirements and does not violate Title VII.
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency
    • For example, a rule requiring investigators (some of whom speak only English) to speak only English when working as a team to compile a report or prepare a case for litigation is narrowly tailored to promote business efficiency and therefore does not violate Title VII.
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers
    • For example, a rule requiring employees to speak only English with English-speaking co-workers and customers when a supervisor is present to monitor their work performance would be narrowly tailored to promote efficiency of business operations. As long as the rule does not apply to casual conversations between employees when they are not performing job duties, it would not violate Title VII.
Notice
If an employer with a business necessity adopts an English-only rule to be applied at certain times, the employer must inform its affected employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. 29 C.F.R. § 1606.7(c)
As with all workplace policies, an English-only rule must be adopted for nondiscriminatory reasons only.
  • For example, an English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin. Likewise, a policy prohibiting some, but not all, of the foreign languages spoken in a workplace, such as a no-Spanish rule, would be unlawful.
Best Practices
  • Evaluate: In evaluating whether to adopt an English-only rule, an employer should weigh the business justifications for the rule against any possible discriminatory effects.
  • Consider Alternatives: Before adopting an English-only rule, the employer should consider whether there are any alternatives that would be equally effective in promoting safety or efficiency.
  • Consult with EEO Manager: To ensure that the employer is proceeding properly, it is best to consult with the EEO Manager or the Civil Rights Center before implementing an English-only rule.

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Again, what we see is that English-Only rules must be approached very carefully in a workplace, as a person's language is closely tied into their nationality and ethnic heritage and discriminating on either basis is certainly not a good thing. Furthermore, employers of good respect and goodwill want their employees to feel safe and secure in their workplace and one way to demonstrate this is to allow employees to communicate in a way which they feel most comfortable. Good communication, after all, should be "other-oriented" and sensitive to what preferences others have for various communication styles - and I wager this includes various languages themselves.

However, at what point could this create issues in the workplace and at what point during these issues does the employer need to step in and, in some manner, to regulate behaviors?  Basically, according to the letter of the law, whenever safety of employees is an issue or circumstances where efficiency or effectiveness of performance - either the worker's co-workers or supervisor - is affected.

In short, there would be no reason to require English-Only for employees while they are on personal breaks or holding personal conversations where both (or more) parties are consenting to the language of preference, yet there may often be valid reasons to require it during work time.  I've noticed this often results in a hybrid type of rule at workplaces, one in which advises workers to speak a commonly understood language when they feel, at their discretion, an attention to safety or customer (i.e, principals) is not at risk; and this built-in broad interpretation seems to be for the understandably sensitive purpose of not offending those who wish to communicate in their first language of choice - for the intended effect of those workers knowing they are fully valued members of an organization regardless of race or ethnicity.

But, something seems missing here.

Could there be, well, more - to this issue.... ?

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As our quote at the beginning of the post mentions, however, there is also a concept known as gaming the system -  and I believe this is where most problems on private estates occur in this and other human resource management topics where rules are applied yet then manipulated. This is where the studies of Organizational Behavior/Development truly come into being and come into value, as we read the grey areas of not simply what is required as rules, yet the behavior by workers either because of them - or in spite of them - and why.

And where I've observed the issues with languages on private estates is not so much the letter of the law, yet the spirit of the law, as here is where we can find people using the letter of English-Only rules and their limitations which are often imposed for the purpose of goodwill toward peoples of all languages - gamed.

"Gaming the system, also known as "rules lawyering," is a pejorative phrase applied to someone who follows the letter of the law to obtain an outcome the speaker finds immoral or contrary to the spirit of the law. There are two reasons why this can be possible. A body of law may have been formulated in a way that permits ambiguity,  or else there may be limitations in the law's scope or jurisdiction."  - Wikipedia

For example, when two Spanish speaking workers choose to speak Spanish in the presence of a co-worker whom they know does not understand Spanish, this is frequently interpreted by the non-Spanish speaking worker as an affront, as a slight, as a way to freeze them out of not only communication, yet also freeze them out of community - workplace community. Whether or not the conversation is truly "job related" or not, in these instances, does not matter to the person who feels slighted. In fact, the feeling, the perception, is often that the language itself was used as a tool for the rather cruel end result - and having been done so -  regardless of any intentions to do so.

Here is where we come to moving beyond the rules of an employee manual, which may or may not require this or other behaviors, and where careful monitoring of workers' feelings and perceptions in the workplace are very important. Communication, like other tools available to us when creating a healthy workplace environment - one in where the service team will function well together - has many shades of grey and has many shades of perceptions. Workers who game the system - those who are adept at following rules yet simultaneously skirting around the spirit of them in order to produce a desired effect which advantages them in some perceived way (in this instance, to freeze co-workers out of the "team") are no strangers to the workplace, as in any other facet of life, and in any other type of community.

Yet, where does intention in these instances play?  Off to the side, as any study of interpersonal communication will quickly reveal. Whether the offending pair noted above had intentions to do so, the end result is fully the same and this is why during studies of interpersonal communication, one will find that it's the speaker, not the listener, who is responsible (assuming a healthy communicative environment is required and agreed to by all participants) for ensuring the listener is interpreting the messages around them correctly. This is the mark of a mature environment in which good teams are developed; and this is the healthy workplace culture where all staff members are sensitive and concerned about the perceptions of their teammates and how the workplace community is affected.

Rarely will these workers' behaviors present themselves in environments which are not only laying foundational barriers to good teamwork, yet are also feeding any variety of bizarre, toxic workplace behaviors which are causing stress and disengagement at work.  In some respect, then, one could be thankful this language/perception issue may serve as the canary in the coal mine, alerting management (perceptive management, one would hope the estate has hired) to other problems developing behind the scenes with their staff, as well.

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Questions for review:


  • What has been your experience with communication and different language spoken on your estate?  
  • Are there domestic workers on your estate who speak languages in front of co-workers who are unable to understand what is being said? 
    • Do some co-workers feel ignored and frozen out of their own workplace, yet are afraid to speak up to anyone about the issue - for fear that complaining could mark them as a racist?  
    • Has such incidents resulted in a breakdown in goodwill and good teamwork and affected the service delivery to the principals? 
      • If yes, what has been the reaction of the manager (whoever that may actually be, regardless of job titles) of the workers in question?  
      • What remedies have been proposed by the manager?
  • What discussions during staff meetings have helped, or hurt, the role of good communication at your workplace?  
  • Are these and other topics which engender good workplace habits, discussed openly and with a positive outcome the goal - not simply from following the letter of the law, yet the spirit also?
  • Has gaming the system been observed in your workplace?


As always, The Citizen welcomes your response - and we welcome it in any language!




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