English Only Policies in the Workplace
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U.S. COMMISSION ON CIVIL RIGHTS ENGLISH ONLY POLICIES IN THE WORKPLACE BRIEFING REPORT JULY 2011 U.S. COMMISSION ON CIVIL RIGHTS Washington, DC 20425 Visit us on the Web: www.usccr.gov U.S. COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: • Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. • Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. • Appraise federal laws and policies with respect to discrimination or denial of equal pro- tection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. • Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. • Submit reports, findings, and recommendations to the President and Congress. • Issue public service announcements to discourage discrimination or denial of equal pro- tection of the laws. MEMBERS OF THE COMMISSION IN 2010 CURRENT MEMBERS OF THE COMMISSION Gerald Reynolds, Chairman Martin Castro, Chairman Abigail Thernstrom, Vice Chair Abigail Thernstrom, Vice Chair Todd Gaziano Roberta Achtenberg Gail Heriot Todd Gaziano Peter Kirsanow Gail Heriot Arlan Melendez Peter Kirsanow Ashley Taylor Dina Titus Michael Yaki Michael Yaki U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 voice www.usccr.gov This report is available from our publications office ((202) 376–8128) on disk in ASCII extT and Microsoft Word 2003 for persons with visual impairments. Hearing-impaired persons may dial 711 from any U.S. location for relay services. English Only Policies In the Workplace A Briefing Before The United States Commission on Civil Rights Held in Washington, DC Briefing Report Table of Contents Executive Summary .................................................................................................................. 1 Findings and Recommendations ............................................................................................... 4 Summary of Proceedings .......................................................................................................... 7 Panel 1 ................................................................................................................................... 7 Reed Russell, Legal Counsel, Equal Employment Opportunity Commission ..................... 7 Panel 2 ................................................................................................................................... 8 Timothy J. Riordan, Partner, Defrees & Fiske ..................................................................... 8 K.C. McAlpin, Executive Director, ProEnglish ................................................................... 9 Richard Kidman, Owner, RD’s Drive-In Restaurant, Page, Arizona ................................. 10 Linda Chavez, Chairman, Center for Equal Opportunity ................................................... 11 Discussion ........................................................................................................................... 12 Speaker Statements ................................................................................................................. 18 Reed Russell ....................................................................................................................... 18 Timothy J. Riordan ............................................................................................................. 21 K.C. McAlpin ..................................................................................................................... 25 Richard Kidman .................................................................................................................. 52 Linda Chavez ...................................................................................................................... 55 Kerry O’Brien ..................................................................................................................... 73 Laura Brown ....................................................................................................................... 74 Speaker Biographies…………………………………………………………………………76 Commissioner Statements……………………………………….…………………………...81 Vice Chair Thernstrom Statement ...................................................................................... 81 Joint Dissent of the Chairman and Commissioners Achtenberg and Titus……………….83 Commissioner Gaziano Statement-Rebuttal……. .……………………………………….90 Commissioner Heriot Statement-Rebuttal .......................................................................... 92 Vice Chair Thernstrom Rebuttal…………………………………………………………111 Commissioner Kirsanow Rebuttal……………………………………………………….112 E xecutive Summary 1 Executive Summary In recent years, some employers have attempted to supervise their bilingual employees by specifying English as the common language of the workplace, meaning that their employees have been required to speak English rather than another language while on the job. Among the reasons employers give for these rules are (1) the need for more effective supervision; (2) the need to ensure optimal communication so as to ensure safety, quality, etc.; (3) the need to avoid unnecessary friction as employees wonder whether others are talking about them and what they are saying, especially when employee relations have a racial or gender-related dimension to them; and (4) the need to show respect for customers who may be similarly put off by conversations they cannot understand. The EEOC has taken the position that these “English Only” policies frequently violate the law.1 Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of national origin. Employers may (and frequently do) insist that an employee be proficient in English or in some other particular language, but under Title VII they cannot insist that these employees be native speakers. The EEOC takes the position that employers whose workforce includes employees who are not native English speakers cannot specify English as the common workplace language without potentially violating Title VII using disparate impact analysis. It has issued the following guidelines: Section 1606.7 – Speak English Only Rules (a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates Title VII and will closely scrutinize it. (b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity. Several courts have rejected or noted conflicts in court decisions on these guidelines in cases brought by bilingual employees who prefer to speak their native tongue on the job. See, e.g., Garcia v. Spun Steak, 998 F.2d 1480, 1489 (9th Cir. 1993); Pacheco v. New York 1 29 C.F.R. § 1606.7 (2010). 2 Executive Summary Presbyterian Hosp., 593 F.Supp.2d 599, 613 n. 6 (S.D.N.Y. 2009); Kania v. Archdiocese of Philadelphia, 14 F. Supp.2d 730, 735 (E.D. Pa. 1998).2 The Commission examined the EEOC’s enforcement policies in this employment context. For example, should an employer, some of whose employees are bilingual, have the legal authority to specify English as the language of the workplace? Do employers have that authority under current law? Do employers understand the law as it applies to their situation? What motivates an employer to require its employees to speak English in the workplace? What happens to workplace communications when an employer is prohibited from specifying English in the workplace? What happens to customer relations or to employee harmony? Are employers currently dissuaded from specifying English on account of EEOC guidelines? Are employers exposing themselves to potential liability for failing to control racial and sexual comments in other languages by employees? Has any employer who attempted (but failed) to impose an “English Only” rule in order to better police racially- or sexually-charged employee conduct ever been sued for permitting a racially or sexually hostile working environment? How vigorously does the EEOC enforce its guidelines? The U.S. Commission on Civil Rights convened a briefing of experts on December 12, 2008 to address these questions. A transcript of the briefing is available on the Commission’s website, www.usccr.gov, and by request from the Publications