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But what happens when Spanish language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking? Sometimes it can happen, through the all-too-common human over-insistence on conformity, that these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work.

On September 27, 2006, this is what happened at Intercare Insurance Services in Orange, California, a workers compensation third-party-administrator, whose sole client is the County of Los Angeles, when Contract Claims Manager, Kathleen Burris, and her Clerical Supervisor, Jackie Stewart, issued the following directive to their staff:

This directive was not limited to the office but extended to include private areas such as the bathroom, the lunchroom, the elevator, and in the adjoining areas before or after work. This English-only

This (English-only) directive was not limited to the office but extended to include the private areas such as the bathroom, the lunchroom, the elevator...

directive provoked very strong feelings and left many Spanish speakers at Intercare feeling not only like third-class citizens but that they were being bullied and picked on.

In May 2010, suit was filed in Superior Court of the State of California County of Orange in Lopez v. Intercare Insurance Services, Case 30-2010-00376617. This suit raises difficult legal issues, some of first impression, all of great importance. While some native Spanish speakers are very comfortable communicating in English, for others it is one of the many new adventures they encounter when migrating to the United States. I would be willing to bet that while Latin American born employees make the effort to speak English most of the time, when presented with the opportunity to speak Spanish with a co-worker, they take it in an instant.

It is familiar, comfortable, relaxed, and most of all easy. They don’t need to be on a constant quest for the correct word or term to use; they can get to the point fast and with complete confidence of saying exactly what they mean. Others believe it is rude to speak in a language that others within the general vicinity who are within ear-shot, do not understand.

Peter V. Fitzpatrick, of the law firm of Bradford & Barthel, who is the attorney representing Intercare (as a corporation) and Kathleen Burris (in an individual capacity), at first advanced the notion that Spanish was not the problem but rather the disruption two employees were causing (presumably in speaking loudly). In any event, in Jackie Stewart’s electronic communiqués, she makes it abundantly clear that her primary concern was not the disruption but the spoken Spanish language itself. As stated in her e-mail communication, her desired solution to the problem would be to alienate those employees who speak Spanish by moving them to a different office location. While this might have seemed to be a solution to stopping any potential irritation caused to the non-Spanish speaking professionals within ear-shot, it is illegal to maintain segregated employment in which employees are separated by race or national origin.

Intercare’s argument has evolved from outright denial to now pointing out that a single language is necessary to ensure workplace safety, harmony, and proper management. The safety scenario could maybe be justified if the claims administration business were a dangerous one, akin to a lumberjack operation, where everyone needs to understand instructions quickly or risk being killed by a felled tree. But for Intercare, this is not the case with its claims handling service, where the most serious risk to safety is from handling paper and sustaining a paper cut injury.

Ironically, from a financial and customer service perspective, Intercare needed to reach out to non-English speaking injured workers (or those who prefer to use the Spanish language) and hired bilingual claims adjusters to fill this need. In fact, the early 2000s saw an explosion of Spanish speaking hires as businesses courted Spanish speaking consumers, sparking fears – at least in Southern California- of a linguistic takeover. Ironically again, this was the result of American values—capitalist ones-- as an untapped market was discovered and everyone scrambled to get their piece, necessitating bilingual workers. What Intercare appears to now be conveying to their bilingual staff is that “you can speak Spanish when it suits us but you can’t speak it when it doesn’t suit us”.

How then to deal with bilingual employees? To address this, a simple understanding of how the language first came to the New World is helpful. In the 16th and 17th centuries the Spanish colonists arrived in areas that would later become the states of Florida, Texas, Colorado, New Mexico, Arizona, Nevada, Utah, Wyoming, and California, and brought with them the Spanish mother-tongue. This was later reinforced by the acquisition of Puerto Rico in 1898. Today, in California, those Spanish surveyors/explorers bestowed over 150,000 Spanish names upon the State’s many missions, counties, cities, rivers, lakes, mountains, bays or other topographical areas. Mexicans living in California became overnight citizens of the United States when Mexico lost the Mexican-American War in 1848. But not all was lost in that war and as a result of those peace accords, California’s first constitution recognized Spanish language rights.

Many California cities are named after the Spanish Missions along the El Camino Real, which were established and run by Father Junipero Serra from Mayorca, Spain, in the 18th Century. "San" means "Saint", and "Santo" or "Santa" means "Saintly" or "Holy". Of course, "Los Angeles" means "The Angels". This powerful influence of the Spanish language in California cannot be erased.

The U.S. Equal Employment Opportunity Commission ("EEOC"), which is responsible for administering and enforcing most employment discrimination laws guidelines has consistently held, in many cases, that English-only policies in the workplace that are applied at all times create a presumption of discrimination, an atmosphere of implied inferiority, isolation, and intimidation, such that the plaintiff can establish a prima facie case of disparate impact just by proof of the existence of the policy. Once the plaintiff introduces evidence of such a policy affecting him or her, the policy then shifts to the defendant employer to supply a legitimate business necessity for the English-only policy.

What EEOC is saying is that an employer may not use its power to control speech to penalize employees because of their national origin. An employee's native language is closely connected to their national origin, a protected

Being bilingual is a huge advantage in today's business world... because it allows your company to communicate with a larger percentage of the marketplace.

category under Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act ("FEHA"). Just as it is illegal for an employer to say "we don't hire Chinese applicants," it would be illegal to say "we don't hire applicants who speak Cantonese," because it would have the effect of excluding many Chinese employees because of their national origin. On the other hand, if an employer does business in English, and it has a legitimate business reason (think safety) to want employees who speak and understand sufficient English to do their jobs and communicate with their co-workers, say like the lumberjack operation, it is probably okay. Therefore, an employer may communicate with its employees in English or as many languages as necessary, but it may not separate work groups by race or national origin.

Should your business have a Common Language Policy? Being bilingual is a huge advantage in today’s business world, not just for the employee but for your business because it allows your company to communicate with a larger percentage of the marketplace. In the case of a claims administrator, it affords direct access to monolingual injured workers with whom you can cultivate trust. Doing so staves off litigation, making the case less expensive to administer for your insured. In addition, it can shave off interpreting bills, which over the life of a claim can become very hefty.

In Europe there are factories, entire businesses, and departments where three, four, five languages are written and spoken all at the same time. In Brussels, the idioms are German, French and Flemish, Dutch and some people also speak Spanish, Italian, English, or whatever language they wish to without any repercussion from their employer. In my opinion it is completely stupid to tell someone not to speak Spanish, or any other language, in the lunchroom or the bathroom. Managers who try to impose that only one language be spoken may have power issues, be control-freaks, and suffer from personal insecurity.

Getting back to the Lopez v. Intercare debacle, the case is scheduled for binding arbitration on August 1, 2012 before the Hon. Judge Judith C. Chirlin. Attorneys who have appeared before Judge Chirlin over the years praise her judicial demeanor, intelligence and fairness.

A ruling is expected 30 days thereafter to determine, among other things, whether the English-only policy disparately impacted Lopez, an Hispanic adjuster, without a sufficient business justification. Lopez is represented by the Matthews Law Group, which appears to have a proven record of winning cases against the most powerful corporations.

No matter what happens in this case, Lopez should be applauded for standing up all alone, against a tank, for righteousness and justice. Lopez now works elsewhere. Kathleen Burris has since been removed as Contract Claims Manager of Intercare’s Orange office, replaced by Lanai Phoung-phun. Jackie Stewart remains as a Clerical Supervisor responsible for as many as 10 people, many of them Hispanic.

The County of Los Angeles, Intercare’s largest client, has remained silent on the entire issue even though they by far are the largest employer in the area with a significant Hispanic work force. As a matter of public policy, their opinion counts.

Jorge Alexandría is a U.S. Army veteran who received his B.A. in Political Science from Cal State Los Angeles, and graduated from Cal Poly Pomona with a Master’s in Public Administration. He holds both a California Workers Compensation Claims Professional (WCCP) designation and the State of California’s Self-Insured Administrator’s License. With more than 20 years industry experience, including various leadership positions, he is a leading expert in the field of risk management. He currently practices federal workers’ compensation of maritime interest. He can be reached at Riskletter@mail.com. The views and knowledge expressed in this article are Jorge Alexandría’s alone.