In many California workplaces, employees move between languages throughout the day when speaking with coworkers, customers, vendors, and the public.
Somewhere in that mix, a supervisor may decide it would be simpler if everyone spoke English. Can an employer require that?
Under California law, the answer is narrower than many employers expect. Government Code section 12951 makes it an unlawful employment practice for an employer covered by the Fair Employment and Housing Act (FEHA) to adopt or enforce a policy that limits or prohibits the use of any language in the workplace unless the restriction is justified by business necessity and employees are notified of when the restriction applies and the consequences for violating it. For this provision, FEHA generally covers employers that regularly employ five or more people. (Gov. Code, §§ 12926, subd. (d), 12951.) The FEHA regulations add that the restriction must be narrowly tailored and that the notice must be effective. “Business necessity” is a defined and demanding standard; business convenience and customer or coworker preference are not enough. The law is not limited to English-only rules. A restriction on the use of any language may be covered.
Key Legal Requirements
The FEHA regulations prohibit workplace language restrictions unless every required condition is satisfied.
An employer or other covered entity that imposes a language restriction must be able to establish that the restriction:
- Is justified by business necessity;
- Is narrowly tailored; and
- Is accompanied by effective notice to employees of the circumstances and time when the restriction applies and the consequences for violating it.
(Cal. Code Regs., tit. 2, § 11028, subd. (a)(1)(A)–(C).)
Not every workplace communication issue supports a language restriction. Employers must identify the specific business concern they are trying to address and determine whether the restriction is actually necessary, effective, and limited to the circumstances in which the legitimate business need exists.
California’s national-origin regulations expressly address language restrictions, accent, and English proficiency. A language policy can therefore create national-origin discrimination concerns not only because of how it is written, but also because of how it is applied in practice.
What “Business Necessity” Means
Under Government Code section 12951 and section 11028 of the FEHA regulations, “business necessity” requires an overriding legitimate business purpose.
The employer must establish that the restriction is necessary to the safe and efficient operation of the business, that it effectively fulfills the business purpose it is supposed to serve, and that no alternative practice would accomplish that purpose equally well with a lesser discriminatory impact.
(Gov. Code, § 12951, subd. (b); Cal. Code Regs., tit. 2, § 11028, subd. (a)(2).)
Depending on the facts, an employer may identify a safety requirement, emergency communication need, or another specific operational need that requires a particular communication to be understood. Neither the statute nor the regulation creates an automatic safe harbor for any category of justification. The employer still must establish business necessity, narrow tailoring, and effective notice for the specific restriction it actually imposed.
If a less discriminatory alternative would accomplish the same legitimate purpose equally well, the language restriction does not satisfy the regulatory definition of business necessity.
English-Only Rules During Breaks and Other Non-Work Time
California’s regulation is especially clear about non-work time: English-only rules are never lawful during an employee’s non-work time, including breaks, lunch, and unpaid employer-sponsored events.
(Cal. Code Regs., tit. 2, § 11028, subd. (a)(4).)
Preference or Discomfort Is Not Enough
The regulation states that it is not sufficient that a language restriction merely promotes business convenience or is due to customer or coworker preference.
(Cal. Code Regs., tit. 2, § 11028, subd. (a)(3).)
Discomfort is a form of preference. An employee may feel excluded from a conversation, or may suspect that coworkers are discussing workplace matters in a language the employee does not understand. Those feelings are understandable, but standing alone they do not establish an overriding legitimate business purpose, and they cannot substitute for the showing the regulation requires.
The employer should identify the underlying workplace issue. A complaint that “my coworkers keep speaking Spanish around me” does not, by itself, establish misconduct. The employer should determine what is actually being alleged. Is necessary work-related information being withheld? Is an employee being intentionally excluded from a meeting or task? Is someone making inappropriate or harassing comments in another language? Those are workplace-conduct issues that can be addressed directly, and investigated where the facts are disputed, without imposing a broad language restriction.
Related Issues: Accent, English Proficiency, and Automated Screening
California’s protections extend beyond rules governing which language employees may speak. Discrimination based on an applicant’s or employee’s accent is unlawful unless the employer proves that the accent materially interferes with the person’s ability to perform the job in question. An English-proficiency requirement must likewise be justified by business necessity, meaning that the level of proficiency required must be necessary to effectively fulfill the duties of the position. Relevant factors include the type and degree of proficiency required and the nature and duties of the position. An employer may request information about an applicant’s or employee’s ability to speak, read, write, or understand any language, including a language other than English, if the inquiry is justified by business necessity.
(Cal. Code Regs., tit. 2, § 11028, subds. (b)–(d).)
Effective October 1, 2025, the Civil Rights Council amended these provisions to reach automated screening. The accent and English-proficiency prohibitions also apply where the discrimination resulted, in whole or in part, from an employer’s or other covered entity’s use of an automated-decision system or selection criteria, including a qualification standard, employment test, or proxy. The regulations define an automated-decision system as a computational process that makes a decision or facilitates human decision making regarding an employment benefit, and provide that it may be derived from or use artificial intelligence, machine learning, algorithms, statistics, or other data processing techniques. In practice that reaches resume screening software, ranked candidate scoring, automated review of recorded interviews, and vendor tools that filter applicants before a person sees them.
(Cal. Code Regs., tit. 2, § 11028, subds. (b), (c) [amendment filed June 27, 2025, operative Oct. 1, 2025 (Register 2025, No. 26)]; id., § 11008.1, subd. (a).)
The 2025 amendments did not change the language restriction provisions discussed earlier in this article. Subdivision (a) of section 11028 was left untouched.
What Enforcement Looks Like
The California Civil Rights Department (CRD) enforces these protections. In 2023 CRD began investigating Leaps and Bounds, a Southern California preschool operator, after a teacher’s aide at its Fontana location complained that she was forced to quit because of retaliation she faced for speaking Spanish while helping a coworker. According to CRD’s announcement, the coworker had asked her for a pen, another coworker overheard the conversation and accused them of gossiping, and management then required the aide to sign an agreement never to speak Spanish at work unless it was necessary to communicate with a parent who did not know English. The aide further alleged that, after she signed the agreement, her hours were cut by nearly half.
The parties reached a settlement through mediation that included a $200,000 fund for staff affected by the policy, including $35,000 for the aide who filed the complaint, an end to the preschool’s English-only policy, and training on California civil rights law. The settlement resolved allegations rather than establishing liability through a judicial finding. It illustrates how an ordinary workplace interaction can develop into a discrimination and retaliation dispute when management responds with a blanket language restriction.
(Cal. Civil Rights Dept., “SoCal Preschool to Pay $200,000 After Retaliating Against Teacher’s Aide for Speaking Spanish” (Oct. 31, 2024).)
Retaliation Can Create Separate Risk
The Leaps and Bounds matter also highlights retaliation risk. FEHA and the national-origin regulations prohibit retaliation against an individual because the individual opposed discrimination or harassment based on national origin, filed or participated in a complaint, or testified, assisted, or participated in a proceeding involving alleged national-origin discrimination or harassment.
(Gov. Code, § 12940, subd. (h); Cal. Code Regs., tit. 2, § 11028, subd. (e).)
The FEHA regulations also treat as protected activity opposing employment practices that an individual reasonably believes to exist and believes to violate the Act, and participating in activity that the employer perceives as opposition to discrimination, whether or not it was so intended.
(Cal. Code Regs., tit. 2, § 11021.)
California courts apply the same principle. An employee who complains about or opposes conduct the employee reasonably believes to be discriminatory is protected even if a court later concludes the conduct did not actually violate FEHA. To prevail, the employee must show protected activity, an adverse employment action, and a causal link between the two, and the action must materially affect the terms, conditions, or privileges of employment. Conduct that is objectively trivial, or merely likely to upset an employee, does not qualify.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042–1043, 1051, 1053–1054.)
That materiality test is a California standard, and it is not identical to the federal retaliation test applied under Title VII. The California Supreme Court reaffirmed and applied the California test as recently as 2024, so a multistate employer should not assume the federal analysis and the FEHA analysis will reach the same result.
(Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611.)
The practical consequence is that an employer can face a retaliation claim arising from how it responded to the employee who objected, separate from any question about whether the underlying language restriction was lawful. A reduction in hours, a schedule change, or a reassignment that follows a complaint will be examined on its own terms.
There Is Almost No Case Law on Section 12951
Employers and their counsel often look for a decision that marks the outer edge of a lawful language restriction. There does not appear to be one. As of September 2026, we located no published California Supreme Court or Court of Appeal decision, and no published Ninth Circuit decision applying California law, construing Government Code section 12951 or the language restriction provisions of section 11028, subdivision (a). When the Fair Employment and Housing Council developed the national-origin regulations in 2016, it noted the same absence of published authority interpreting section 12951.
The published federal case employers most often recall, Garcia v. Spun Steak Co., was decided under Title VII in 1993, eight years before the Legislature enacted section 12951, and it does not construe California’s statute or regulation. Section 11028 has produced published California authority, but on a different subdivision concerning immigration status, not on language restrictions.
(Gov. Code, § 12951, added by Stats. 2001, ch. 295, § 2; Garcia v. Spun Steak Co. (9th Cir. 1993) 998 F.2d 1480.)
The practical consequence is that the regulation’s text and the employer’s own record are what decide these matters. There is no forgiving judicial gloss to fall back on, which raises the value of getting the business purpose, the narrow tailoring, and the notice right before the restriction is imposed rather than reconstructing them afterward.
What This Looks Like in an Investigation
In my experience, these complaints rarely arrive labeled as language complaints. They arrive as gossip, exclusion, insubordination, or disruption, and the language rule surfaces later, often for the first time in a supervisor interview.
Frequently there is no written language policy at all. What exists is a supervisor’s standing expectation that employees speak English in a particular area or situation, enforced informally and without the notice the regulation requires. An employer that reviews only its handbook will not find the practice that generated the complaint.
The evidence that decides these matters is consistent from case to case: what the employee was actually told and when, the wording and scope of the rule or instruction, who received warnings and who did not, whether contemporaneous records support the employer’s stated operational reason, and how comparable conduct in English was treated. When two similar side conversations occur and only the one in Spanish draws a warning, that comparison carries real weight on consistency, on the credibility of the stated justification, and on disparate treatment.
The most useful question I put to a supervisor is not whether a language rule was imposed. It is what specific work problem the supervisor was trying to solve. The answer often identifies a conduct or communication issue the employer can address directly, without regulating language more broadly than the situation requires.
Steps Employers Can Take
- Review written policies and informal supervisor practices for language restrictions or “English only” expectations;
- Identify and document the specific business purpose before imposing any restriction;
- Confirm that the restriction is necessary to safe and efficient operations, actually serves the stated purpose, is narrowly tailored, and that no less discriminatory alternative would accomplish the same purpose equally well;
- Confirm that an English-only rule does not reach non-work time, including breaks, lunch, and unpaid employer-sponsored events;
- Provide effective notice of when the restriction applies and the consequences for violating it;
- Train managers not to improvise language restrictions in response to customer or coworker complaints;
- Review automated screening, testing, and other selection criteria for possible accent or English-proficiency discrimination; and
- Monitor how any restriction is applied, because inconsistent enforcement can undermine the stated justification and may create evidence relevant to a disparate-treatment claim.
When a complaint involves disputed facts, alleged exclusion, harassment, retaliation, or other potential policy violations connected to language or national origin, employers should preserve relevant records, respond promptly, protect participants from retaliation, and consider whether an impartial workplace investigation is appropriate.
The investigator’s role is to establish the relevant facts through a fair and impartial process. Legal determinations and employment decisions remain the responsibility of the employer, in consultation with legal counsel as appropriate.
About the Author
Shawn Larry, J.D., PI, is the CEO and Principal Investigator of California Labor Solutions, a California-licensed private investigation firm (CA PI License #26311). He conducts and oversees independent workplace investigations for employers throughout California, including matters involving discrimination, harassment, retaliation, policy violations, and employee misconduct.
About California Labor Solutions
California Labor Solutions (CLS) is a California-licensed private investigation firm specializing in independent workplace investigations for employers throughout California. Our investigations address complaints involving harassment, discrimination, retaliation, workplace violence, policy violations, and other workplace concerns, helping organizations establish relevant facts and make informed employment decisions.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. California Labor Solutions is not a law firm and does not provide legal advice or legal representation. Employment laws and regulations may change, and their application depends on the specific facts and circumstances. Employers should consult qualified legal counsel regarding legal obligations, workplace policies, and employment decisions.
For assistance with workplace investigations, contact California Labor Solutions: https://www.californialaborsolutions.com/contact/
Sources
- California Government Code § 12951: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=12951
- California Government Code § 12926, subd. (d) (FEHA employer definition): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=12926
- California Government Code § 12940, subd. (h) (FEHA retaliation): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=12940
- California Code of Regulations, title 2, §§ 11008.1 (automated-decision system definition), 11021 (retaliation), 11028 (specific employment practices), Barclays Official California Code of Regulations: https://govt.westlaw.com/calregs
- Civil Rights Council, Final Text of Employment Regulations Regarding Automated-Decision Systems, filed June 27, 2025, operative October 1, 2025 (Register 2025, No. 26): https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/06/Final-Text-regulations-automated-employment-decision-systems.pdf
- Office of Administrative Law, Notice of Approval, automated-decision systems regulations (June 27, 2025): https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/06/Notice-of-Approval-regulations-automated-employment-decision-systems.pdf
- Civil Rights Council, Final Text of Regulations Regarding National Origin Discrimination (2018): https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2018/05/FinalTextRegNationalOriginDiscrimination.pdf
- Fair Employment and Housing Council, August 2016 meeting materials (noting the absence of published authority interpreting Gov. Code, § 12951): https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2017/06/AttachA-FEHCMinutes2016Aug.pdf
- California Civil Rights Department, Leaps and Bounds enforcement announcement (Oct. 31, 2024): https://calcivilrights.ca.gov/2024/10/31/socal-preschool-to-pay-200000-after-retaliating-against-teachers-aide-for-speaking-spanish/
- Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028: https://scocal.stanford.edu/opinion/yanowitz-v-loreal-33570/
- Bailey v. San Francisco District Attorney’s Office (2024) 16 Cal.5th 611: https://law.justia.com/cases/california/supreme-court/2024/s265223.html
- Garcia v. Spun Steak Co. (9th Cir. 1993) 998 F.2d 1480.
Additional Resource
- California Civil Rights Department, Workplace Retaliation Is Against the Law (fact sheet, June 2025): https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2025/07/Retaliation-Factsheet-English.pdf