A few years ago, a client asked me if “English-only” workplace rules were legal, because his Hispanic warehouse workers were filing complaints with the EEOC challenging his rules requiring employees to speak only in English while working. My answer was that the law on the subject was muddled. It still is.
There are no Supreme Court cases on the point; nor is there a pertinent Second Circuit decision. The first Circuit Court to consider these rules came in 1980 when the Fifth Circuit concluded that the Title VII rights of Hispanic employees were not offended by such a rule here the workforce was bilingual. Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980). The Court rejected the plaintiff’s contention that despite his and his co-workers’ ability to speak English as well as Spanish, he was denied the privilege of speaking the language with which he was most comfortable, and that this was national origin discrimination because national origin influenced his language preference. The Court concluded that no employment privilege was involved and that there could be no disparate impact if the plaintiff could have observed the rule, but simply chose not to. According to the Court, Title VII does not protect mere language preferences.
The muddling began later in 1980, when the EEOC issued a guideline on “Speak English-only” rules that rejected Garcia v. Gloor. 29 C.F.R. §1606.7. The guideline stated that an individual’s primary language is often “an essential national origin characteristic” and that a rule prohibiting employees from speaking their primary language or the language they speak most comfortably, “disadvantages an individual’s employment opportunities on the basis of national origin” and may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.” The guideline concluded with the statement that the Commission would presume – conclusively - that “English-only” rules applicable at all times in the workplace violate Title VII. For rules applicable only at certain times, the Commission would still presume illegality, but not conclusively. The employer could rebut the presumption by showing that the rule was “justified by business necessity.”
EEOC guidelines do not enjoy the force of an administrative regulation, but are nonetheless entitled to judicial deference. After the issuance of the EEOC’s guideline, the question became whether courts would follow it or follow Gloor. The issue became more complicated in 1991 when Congress amended Title VII to codify the burden of proof rules that had developed in disparate impact cases. Per the amendment, disparate impact could not be presumed. A plaintiff had to prove disparate impact as part of his prima facie case – to prove in cases such as this that the “English only” rule has a substantial adverse impact on the terms, conditions or privileges of the plaintiff’s employment, an impact that was different than that for the employee population at large. If the plaintiff proved this, then the burden would shift to the employer to show that the rule is job-related for the positions in question and consistent with business necessity.
The next Circuit Court “English only” rule decision came shortly after the EEOC issued its guideline. In Garcia v. Spun Steak, 982 F.2d 1480 (9th Cir. 1992), the 9th Circuit rejected the guideline because, in its view, both Supreme Court case law and the recent Title VII amendment made plain that a plaintiff in a disparate impact case must actually prove substantial, adverse impact, the essential element of a prima facie case. Substantial, adverse impact could not be presumed. The Court concluded that the guideline contravened those cases and the statute and thus was not entitled to deference. The Spun Steak court also determined that the plaintiff there had not proved substantial, adverse impact, because the employees, save for one, were bilingual.
Spun Steak was also the first case to assess a new approach to proving that “English only” rules can cause bilingual employees to suffer a disparate impact on account of national origin. arguing that bilingual individuals engage in an involuntary process called code switching. Code switching refers to individuals using a word or two from their native language, or even lapsing into that language, in what otherwise was a conversation conducted entirely in English. According to the EEOC, this phenomenon generally occurs because the individual lacks confidence in expressing what he or she wishes to express in English. Hence, the theory goes, these employees are subject to discipline not because of choices or preferences, but because of conduct they cannot control.
The new argument did not impress the 9th Circuit. It deemed the burden of speaking English a mere inconvenience for bilingual employees. Moreover, there was no evidence that the employer was actually disciplining employees for occasional slips into their native tongue.
Since Spun Steak, a number of courts have addressed whether “English only” rules represent disparate impact national origin discrimination against bilingual employees and the weight the EEOC’s guideline should be accorded. The results are all over the lot. One case fully subscribes to Spun Steak, rejecting the guideline and concluding that “English only” rules cannot have an adverse impact on bilingual employees. See Long v. First Union Corp., 894 F. Supp. 933 (E.D. Va. 1995), aff’d, 86 F.3d 1151 (4th Cir. 1996). Three District Court cases agree with the “no adverse impact” conclusion, but ignore the EEOC guideline. Prado v. L. Luria & Son, Inc., 975 F. Supp. 1349, 1354 (S.D. Fla. 1997); Roman v. Cornell University, 53 F.Supp.2d 223 (N.D.N.Y. 1999); Navarette v. Nike, Inc., 2007 WL 2890976, at *7 (D. Or. Sept. 28, 2007). Three other District Court decisions expressly reject the guideline, but leave open the possibility that an “English only” rule could have an adverse impact on bilingual speakers in certain circumstances. Kania v. Archdiocese of Philadelphia, 14 F. Supp.2d 730, 735-37 (E.D. Pa. 1998); Cosme v. Salvation Army, 284 F.Supp. 2d 229 (D. Mass. 2003); and my own case, EEOC v. Beauty Enterprises, 2005 WL 2764822 (D. Conn. 2005), where the court rejected the guideline as inconsistent with Title VII, but suggested that an “English only” rule might have a significant, adverse impact on bilingual employees if, for example, the employer enforced the rule too aggressively or too frequently or if the enforcement was inconsistent with the purported reasons for adopting the rule.
In the middle of the spectrum are four District Court cases that give some deference to the guidelines and assume, but do not explicitly decide, that adverse impact may be presumed, but find that the rule was justified by business necessity in any event and that the employee failed to offer a less discriminatory alternative. EEOC v. Sephora USA, LLC, 419 F.Supp.2d 408, 414, 416-17 (S.D.N.Y. 2005); Barber v. Lovelace Sandia Health Systems, 409 F. Supp. 2d 1313 (D.N.M. 2005); Gonzalo v. All Is. Trans., 2007 WL 64259 (E.D.N.Y. 2007); Pacheco v. New York Presbyterian Hospital, 593 F.Supp.2d 599 (2009).
At the other end of the spectrum are two District Court cases and two Tenth Circuit cases each of which accepted the guideline, presumed adverse impact and either found the rules illegal or suggested that this could be the result at trial. The District Court cases are EEOC v. Synchro-Start Prods., Inc., 29 F.Supp.2d 911 (N.D. Ill. 1999) and EEOC v. Premier Operator Servs., 113 F.Supp. 2d 1066 (N.D.Tex. 2000). The 10th Circuit cases are Maldonado v. City of Altus, 433 F.3d 1294, 1307 (10th Cir. 2006), abrogated in part on other grounds, Burlington N. & Santa Fe. Ry. Co. v. White, __ U.S. __, 126 S.CT. 2405, 2414-15, 165 L.Ed.2d 345 (2006) and Montes v. Vail Clinic, 497 F.3d 1160 (10th Cir. 2007).
Despite my description of the law, my client decided to fight. He believed that the rule was significant in producing harmony in a multi-ethnic workplace. The case ultimately settled in a way that left the rule largely intact.
Richard C. Robinson is an attorney with Pullman & Comley, LLC and practices in the area of business litigation, including employee disputes. He heads the firm’s Construction Law and Litigation section and can be reached at firstname.lastname@example.org.