Wednesday, November 21, 2018

English Only... La Secuela!

In short, non-English languages being used as weapons to wound, maim, and kill the spirit of English-only speakers, as a cry for help... secure in the knowledge that such abhorrent behavior will earn them the attention required to send up a rescue flare from the bullpen downstairs.

Fresh on the heels of our admiration for President Wilson and his penchant for succinct storytelling given enough time and space, we now celebrate as succinctly as the complex arena of labor law allows, by highlighting the most excellent article found to date on the equally complex topic of English Only rules in the workplace - in our case, of course, private estates and the domestic staff within.

Citizen Readership will recall the article posted just this past August, English Only... The Only Gaming In Town? whereby we touched on the underlying problems which most discussions of English Only rules never touch on... the one we are now showing you in legal technicolor:  Key Considerations for Drafting Compliant English-Only Policies, by Jamala S. McFadden, Chandra C. Davis, and Raquel H. Crump, McFadden Davis, LLC.

I congratulate McFadden, et al, for truly nailing the issue in a succinct, yet comprehensive review of the topic, with full covering of both pros and cons of such policies and also how agencies (the governmental variety - not domestic employment) and courts have generally responded. Written with sensitivity for the non-lawyer, the article contains enough information which domestic workers, co-workers, managers, and estate owners can draw upon for their own decisions of how to move forward - or not, as they choose.

Of course, as always, our own disclaimer is appropriate at this time:  the article referenced is not intended in any way to be legal advice for Citizen Readership - nor either is this posting or anything else within this blog - and Readership is advised to consult with their own legal counsel prior to considering any suggestions.

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Of greatest success with the article is simply this:  it begins to address the grey area in-between the often confusing lines of "Business Necessity" most often noted in articles on the topic as being defined as for the bottom line of creating profit or building a business, and delves into the heart of the matter which causes most stress on the topic - for English Only speakers in the workplace, that is, and can be reasonably brought into the realm of "Business Necessity" as noted by the authors:


Business Necessity

If the plaintiff succeeds in his or her prima facie case, the defendant must demonstrate that its English-only policy was job-related and consistent with business necessity. Courts have found the following justifications for an English-only policy to be valid:

  • Enhancing the politeness and approach-ability of sales staff as components of customer service.
  • Preventing employees from intentionally using their fluency in Spanish to separate and intimidate members of other ethnic groups.


I highlighted the above point in red, as it simply cannot be overstated as a critical component of when deciding when and how to enact your own English Only policy.  This is the heart itself, where I've witnessed over the years the most damage done to domestic
staff workplace morale and the fertilization of toxic estate workplace environments - domestic workers who, for any variety of reasons, are frustrated either in the workplace or in their co-workers and with no open and honest outlet for expression and resolution of the matters provided to them by their estate managers, principals, or miscellaneous family office personnel, thus forced into traveling through the only portal available to them: using their language as tools in order to confuse, freeze out, and punish those around them who are known to only understand English.

In short, non-English languages being used as weapons to wound, maim, and kill the spirit of English-only speakers, as a cry for help. To ignore, to corrosively belittle and push aside those co-workers or managers who can effectively be ostracized and shut out via the language barrier, secure in using such weapons against others with the belief their employer will never adopt a policy of English Only, for fear of a horrendously expensive ethnic discrimination lawsuit which could be thrown up against them; secure in the knowledge that such abhorrent behavior will earn them the attention required to send up a rescue flare from the bullpen downstairs.

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What, then, to do?  

A two pronged approach, in short, beginning with my suggestion #1: the entire article is worth reading and which provides many ideas where the reasons for adopting rules can outweigh the risks, providing you with a good basic understanding of what you're facing and starting with defining by the authors of what "Ensure Business Necessity" may encompass:


Ensure Business Necessity


To stem disparate impact claims, employers should ensure their English-only policies are consistent with business necessity (i.e., necessary for an employer to operate safely or efficiently).


Examples of circumstances where employers generally may require employees to speak English include when they:

  • Perform job duties that involve safety concerns, including handling potentially dangerous substances or operating heavy equipment or machinery.
  • Regularly converse with customers who speak English.
  • Have English-speaking supervisors who monitor their performance.
  • Use their fluency in a foreign language to separate and intimidate members of other ethnic groups.


Again, highlighted in red is the point most applicable to our discussion today. 

Estate owners and their human resource management components such as estate managers or family offices (if such even exist) are often reluctant to create any policy which even contains the appearance of unlawful discrimination or a disparate impact on protected classes of workers - or even unprotected classes of workers. The trouble, however, is there is more to building a good and effective workplace than simply disappearing from the scene and crossing fingers that all somehow magically works out for the best. In fact, domestic staff management Missing In Action is often the default switch by which estate owners and their family offices insist upon, much to the dismay of the  service presentation found to be swirling down the 24K solid gold toilets, as individual domestic staff members jockey for political positioning on the service team and create their own, unfortunate and hostile rules to apply as they see fit their own individual survival instincts.

But which is worse? Well, time now for everyone to sit up straight with all eyes forward, act like an adult and take full responsibility, because, like it or not, you get to decide.

And then my suggestion #2, as alluded to earlier in the post, the place to establish a healthy workplace will begin with real human resource management before any rules themselves are actually applied; as relying on rules alone living in an employee manual and atop the dusty staff break room shelf, in Citizen Editor's humble opinion, graduates one - with honors - from the Mamby-Pamby School of Milquetoast Management; and this tragedy is to be found on many private estates, whereby pronouncements are made by attorneys miles away in a family office and from behind the safety of a two dimensional .docx file, instead of estate managers doing the real work involved with humans at the estate and their third dimensional behaviors. 

Better, perhaps, for the estate owner to grow a pair and to allow some open, honest face-to-face discussions with their staff about work performance? 

May we suggest:

"Hey there Hector, got some news here, buddy. Jason is feeling frozen out and ignored when you and Hilda are speaking Spanish in front of him during the nightly dinner service - and with you and Hilda both knowing that Jason doesn't understand anything that you're saying, this is starting to make me think there's some kind of underlying issue here at work that you're angry about.  

So, what we're going to do now is talk these issues out and get them settled, like - right now, so that you and Hilda can start talking in a way that Jason and everyone else on your team can understand and can know what's going on around them. 

I'm pretty sure this will improve Jason's morale - and also the nightly dinner service presentation for the Mister and Misses. And I definitely know for sure this will help both you and Hilda keep your jobs.

Sounds like a plan?"

The same, of course, could be said for a work environment which required Spanish as the primary language, resulting in, just as easily, two native English speakers who had become adept at freezing out their co-workers who did not understand English well.


The point, of course, is not to dump on Spanish (or any other) language - or to dump on native Spanish (or any other) speakers as a group, yet to establish a common and easily understood and agreed-upon language, up front, with honest discussions, like healthy workplaces do, via which all workers can both perform to a high standard and create a healthy, cooperative work environment - and not to use language barriers as tools for fighting or some passive-aggressive attempt to sound off or extract revenge about underlying and unresolved issues within the downstairs camp.

Rules don't replace good hands-on management - and good management needs the helping hands of good rules.  Don't substitute one for the other.  Use both my suggestions #1 and #2.  Straight up!

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Go to:  https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/archive/2018/09/12/key-considerations-for-drafting-compliant-english-only-policies.aspx


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