New York University Public Law and Legal Theory Working Papers

Document Type

Article

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Northwestern University Law Review, Vol. 100, 2006

Abstract

This Article assesses the increasingly common employer practice of prohibiting employees from speaking languages other than English in the workplace—a phenomenon that provides an important window into the debate over how to manage the cultural consequences of immigration. I argue that the effects of English-only rules with which we should be most concerned are social, not individual, in nature. Such rules interfere with profound associational interests held by workers, both in the workplace and in social life more generally. While the English-only workplace rule may seem to advance communication in the workplace, I argue that fostering cooperation and solidarity among employees actually requires permitting linguistic fragmentation in some contexts. Promoting genuine, long-term cooperation in public settings like the workplace depends on what I call cultural burden sharing, or the development of legal and social expectations according to which all participants in the public sphere, and not just the assimilating immigrant, absorb some of the cultural effects of immigration. Employees who have sought to challenge English-only rules have relied, largely unsuccessfully, on Title VII, which does not provide workers with a viable mechanism for articulating the salient associative interests compromised by English-only rules. But even if that limitation could be fixed through amendment or doctrinal reorientation, the process of cultural burden shifting will be deeper and more effective if channeled through decentralized and semi-private decisionmaking structures. Though it may seem counterintuitive, debates over how to maintain social cohesion during a period of demographic transformation ultimately should be diffuse and local, not concentrated and national. Exploring the anti-social dynamics imposed by English-only workplace rules thus contributes to the development of a productive framework for coming to terms with how unprecedented immigration is reshaping our social and political spaces.

Date of Authorship for this Version

November 2006

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