A new law in Tennessee that permits English-only policies in the workplace could signal a growing trend among businesses, but observers say there are hazards for employers that adopt such policies.

While English-only workplace policies may be motivated by the uneasiness created by workers talking in a foreign language, the only legitimate reasons for such policies that are permitted by Title VII of the Civil Rights Act of 1964 are safety- or business-related issues.

“It's pretty easy to make a misstep if you're not aware what the law is in this area,” said Amy McAndrew, of counsel with law firm Pepper Hamilton L.L.P. in Berwyn, Pa.

“We run into it pretty frequently,” said Dennis Westlind, a partner with law firm Stoel & Rives L.L.P. in Portland, Ore. “I probably get a call from a client on the English-only issue every couple of months or so.”

It could become more of an issue in the future “as an unfortunate backlash to the illegal immigration issue,” which is “what I think you're seeing in Tennessee,” said James A. Matthews III, a partner with Fox Rothschild L.L.P. in Philadelphia.

The legislation that Tennessee Gov. Phil Bredesen signed into law in June allows English-only policies “when the employer has a legitimate business necessity for such a policy, including but not limited to the safe and efficient operation of the employer's business.”

Michael P. Burns, an associate with law firm Horan, Lloyd, Karachale, Dyer, Schwartz, Law & Cook Inc. in Monterey, Calif., also said the issue is growing because of controversy about Arizona's anti-immigration legislation.

Gregg M. Lemley, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis, said it is becoming a “hot-button issue” and “more and more employers are likely to take a position on the issue one way or the other. That certainly could result in more litigation as employers become emboldened” and establish or apply English-only policies incorrectly.

There also will be “prudent employers on the other side pulling back away from these things to the extent they don't want to be painted by that brush,” Mr. Lemley said.

Under Title VII, employers can adopt an English-only rule if it is justified by “business necessity” (see story, page 18).

According to the Equal Employment Opportunity Commission's compliance manual, this includes emergencies, where workers must speak a common language to promote safety; cooperative work assignments, where a common language is needed to promote efficiency; and cases where it enables supervisors who speak only English to monitor an employee's performance.

“After a thorough review of the legislation, the governor determined the English-only portion of the bill did not change Tennessee law,” the governor's office said in a statement.

Tennessee's law mirrors federal law, said Leslie Silverman, a partner with Proskauer Rose L.L.P. in Washington and a former EEOC vice chair. “In a lot of ways, it doesn't really do anything but restate what Title VII would say about this whole matter.”

Tennessee's law, which became effective immediately, requires employers to notify employees of the policy and the consequences of violating it.

Observers say English-only polices rarely are inspired by anti-immigrant or prejudicial attitudes. There are cases, though, in which such policies may be motivated by the attitude that “they must be saying something bad about me and therefore I don't want them to be talking in a language I can't understand,” said Ms. McAndrew. “There's where employers can generally get themselves into trouble.”

Many employers “are deterred from adopting these policies because they realize they could be opening Pandora's box and exposing themselves to litigation,” Mr. Burns said. “Simply, the benefits don't outweigh the liability.”

Observers say English-only workplace policies tend to be an issue in areas where there are large immigrant populations and in industries where there is significant client contact, such as service industries, including retail or health care settings.

Mr. Matthews said “there have been very, very few cases that have found these (policies) to be illegal as applied,” but policies that have been found to be illegal were in cases with “truly outrageous facts, where there's some clear evidence that the main motivation there was because the employer just didn't like a particular ethnic group.”

In a 2003 Massachusetts case, a federal judge in Cosme vs. The Salvation Army ruled against a plaintiff who contended she was terminated from her job for speaking Spanish. The Salvation Army had a policy forbidding speaking a foreign language other than during break and meal periods.

The court said an “English language policy does not, in and of itself, constitute discrimination or disparate treatment of bilingual employees.” The judge also said that “while the EEOC does not favor English-only policies, the mere existence of one does not necessarily violate the regulations.”

Observers say the amount of litigation on the issue has declined in recent years as employers gained a clearer understanding of what is permitted.

EEOC charges on this issue totaled 190 in fiscal 2009, about an 8% decline from the previous year, said Dianna Johnston, assistant legal counsel with the EEOC. “A lot of employers are aware of our guidelines” on this issue, which have been in place since 1980, she said.

The EEOC remains aggressive in pursuing this issue, though. “They've taken a pretty hard stance,” Ms. McAndrew said. “When they see potential violations of the law, they're going to come down pretty hard on employers.”

The EEOC looks at the issue “as a warning sign there is more discrimination going on, as well as that the policy itself can be discriminatory, so they take it very seriously,” Mr. Westlind said.