The Zero Sum Game of Language Accommodations in the Workplace

James B. Leonard, University of Alabama

Abstract

A society experiencing high levels of immigration such the United States must grapple with the issue of whether and how to respect minority language preferences. The challenges are particularly acute in the workplace where language is an integral factor in productivity and efficiency. Under current federal law, embodied in the EEOC’s Guidelines on Discrimination Because of National Origin, employers covered by Title VII of the Civil Rights Act of 1964 are restricted to English-only work rules that serve a “business necessity.” Rules failing to meet this standard are considered a form of national origin discrimination. Academic commentators support this approach with near unanimity while some would prefer even more protective schemes.

By locating minority language rights outside of the times and places where use of English is relevant to the conduct of a business, the EEOC’s Guidelines create rights that are cultural in nature and enforced by duties of accommodation placed directly on employers. Cultural accommodations, however, do not occur in a vacuum. They are a classic “Zero Sum Game” in which rights accorded to one set of persons inevitably diminish the rights or preferences of others. In this case, minority language rights establish an arbitrary preference for one cultural preference that overrides the cultural desire of others – employers and certain workers – for a monolingual workplace.

My solution is to restore the employer’s right to set workplace language rules that existed under common law principles of freedom and contract and control of property. After reviewing the dynamics of language, culture, individual identity and workplace concerns in Part I, I argue in Part II that abandoning the present rules will achieve the salutary effect of leaving cultural decisions to individuals or voluntary associations. Such a move would bring language rules in sync with constitutional and statutory norms that resolve the intractable clash of cultures by letting individuals make the choices. Part III of the Article reviews the principal arguments in favor of minority language rights in the workplace (expressive interests, fairness, cultural burden sharing and associational interests) and respectfully criticizes them for not coming to terms with the inherent arbitrariness of cultural accommodations.