We get constant complaints from employees about co-workers’ not speaking English at work. We’ve explained the situation and asked them to speak English but they refuse. Can we discipline them?
Requiring or banning employees from using a particular language in the workplace is ethnicity/nationality discrimination banned by human rights laws. Otherwise discriminatory policies are justifiable if they’re a bona fide occupational requirement (BFOR), e.g., refusing to hire people with visual impairments as drivers.
But employers have the burden of proving a BFOR. The starting point is showing that the English-speaking policy serves a compelling safety purpose; for example, a supervisor in charge of confined space entry must speak English if that’s the only language spoken by crew members entering the space. By contrast, requiring English to get employees to fit in with co-workers isn’t a legitimate purpose. Even if you can show a safety purpose, you must also prove that the policy is necessary to accomplish the purpose and there are no less discriminatory alternatives. And that’s really hard to prove.
Practical Advice: Get everybody in the same room. Have the employees who are complaining explain their concerns and let the co-workers respond. If the problem is safety-related, try to mediate a mutually acceptable solution. Example: You can speak any language you want EXCEPT when performing functions X,Y, and Z function which are safety-sensitive and require that everybody use the same language (in this case, English since that’s the only common language).