Published by Husson College Bangor, Maine For the NORTH ATLANTIC REGIONAL BUSINESS LAW ASSOCIATION EDITOR IN CHIEF William B. Read Husson College ASSOCIATE EDITOR Marie E. Hansen Husson College BOARD OF EDITORS Robert C. Bird Stephen D. Lichtenstein University of Connecticut Bentley College Gerald R. Ferrera Gerald A. Madek Bentley College Bentley College Stephanie M. Greene Carter H. Manny Boston College University of Southern Maine William E. Greenspan Christine N. O’Brien University of Bridgeport Boston College Anne-Marie G. Hakstian Lucille M. Ponte Salem State College Florida Coastal School of Law Chet Hickox Margo E.K. Reder University of Rhode Island Boston College Marianne DelPo Kulow David Silverstein Bentley College Suffolk University David P. Twomey Boston College i GUIDELINES FOR 2009 Papers presented at the 2009 Annual Meeting and Conference will be considered for publication in the Business Law Review. In order to permit blind refereeing of manuscripts for the 2009 Business Law Review, papers must not identify the author or the author’s institutional affiliation. A removable cover page should contain the title, the author’s name, affiliation, and address. If you are presenting a paper and would like to have it considered for publication, you must submit two clean copies, no later than March 27, 2009 to: Professor William B. Read Husson College 1 College Circle Bangor, Maine 04401 The Board of Editors of the Business Law Review will judge each paper on its scholarly contribution, research quality, topic interest (related to business law or the legal environment), writing quality, and readiness for publication. Please note that, although you are welcome to present papers relating to teaching business law, those papers will not be eligible for publication in the Business Law Review. This subject matter should be submitted to the Journal of Legal Studies Education. Also note that the Board of Editors will consider only one paper per person, including co-authored papers. Only papers presented at the Annual Meeting will be considered for publication. FORMAT 1. Papers should be no more than 20 single-spaced pages, including footnotes. For fonts, use 12 point, Times New Roman. Skip lines between paragraphs and between section titles and paragraphs. Indent paragraphs 5 spaces. Right-hand justification is desirable, but not necessary. 2. Number pages in pencil on the back in the lower right corner. Do not number the front of the page. Please do not fold or staple your paper. 3. Margins: left—1-1/2 inches, right, top, bottom (except first page)—1 inch. 4. Upon acceptance, the first page must have the following format: the title should be centered, in CAPITAL LETTERS, on line 10. On line 12, center the word “by” and the author’s name, followed by an asterisk (*). Begin text on line 15. Two inches from the bottom of the first page, type a solid line 18 spaces in length, beginning from the left margin. On the second line below, type the asterisk and the author’s position or title and affiliation. 5. Headings: FIRST LEVEL (caps, flush with left margin) Second Level (center, italics) Third Level: (flush with left margin, italics, followed by a colon [:]) Fourth Level: (flush with left margin, italics, followed by a colon [:], with text immediately following). 6. Endnotes should conform to the Uniform System of Citation, 18th edition and should begin 3 lines after the end of the text. 7. A compact disc with only the final version of your paper, in Microsoft Word, must accompany your paper. ii The Business Law Review is published once each year. Its purpose is to encourage scholarly research in Business Law and the Legal Environment of Business. Publication is made possible by gifts and grants from: Andover IP Law, Andover, MA. Bentley College, Waltham, MA. Husson College, Bangor, ME. North Atlantic Regional Business Law Association Simmons College, Boston, MA. Suffolk University, Boston, MA. University of Bridgeport, Bridgeport, CT. University of Southern Maine, Portland, ME. West Educational Publishing THANK YOU Next Annual NARBLA Meeting April 4, 2009 University of Massachusetts Dartmouth North Dartmouth, MA Please contact: Adam J. Sulkowski Assistant Professor of Business Law University of Massachusetts Dartmouth Charlton College of Business 285 Old Westport Road North Dartmouth, MA 02747 Phone: 508-999-8037 [email protected] iii TABLE OF CONTENTS Speaking English Only Policies in the Workplace Malcolm Abel ..................................... 000001 Automatic Reassignment of Disabled Persons under the ADA: Huber v. Wal-Mart Stores Widens the Circuit Split Robert C. Bird and Jeannine Lawlor DePhillips ......... 000015 The Jordan’s Furniture “Monster Deal”: Illegal Gambling? Taxable Income? Eli C. Bortman .................................... 000031 Stoneridge v. Scientific-Atlanta: Pulling Another Tooth from Private Party Litigation under Section 10(b) of the Securities Exchange Act of 1934 Brian Elzweig and Bo Ouyang ....................... 000045 Up in Smoke: The Erosion of Employee Privacy David A. Goodof and Andrew G. Christensen ............ 000063 Computation of Statutory Damages for Willful Copyright Infringement of Sound Recordings and Motion Pictures: “Sue Me. I Am Never Going to Join.” William E. Greenspan .............................. 000075 Multi-State Taxation and Captive REITS: Wal-Mart’s “Rollback” of Taxes John F. Robertson and Patricia Q. Robertson ........... 000089 Strengthening State Dog Fighting Laws in the Wake of the Michael Vick Case Louis Alfred Trosch, Sr. ............................. 000109 To “Dismiss at Pleasure”: An Examination of Implied Preemption of State-Law Based Discrimination Claims under Federal Banking Statutes Joel C. Tuoriniemi ................................. 000133 To Live, to Work, to Prosper: Do Illegal Aliens Have Legal Rights? Bruce W. Warren and Leonid Garbuzov ................ 000147 v Employer Credit Checks and the Potential for Disparate Impact Discrimination under Title VII Lorrie Willey and Debra Burke ....................... 000167 What to Do about “me-too”? Supreme Court Rules in Sprint/United Management Co. v. Mendelsohn on Recurring Evidentiary Issue in Employment Discrimination Cases Dexter R. Woods, Jr. ................................ 000189 © Copyright 2008 North Atlantic Regional Business Law Association vi SPEAKING ENGLISH ONLY POLICIES IN THE WORKPLACE by MALCOLM ABEL* I. INTRODUCTION Speaking English-only in the business workplace became more difficult in the latter part of the 20th Century, and all indications are that it will become even more difficult in the 21st Century. There has been, apparently, a significant increase in the number of workers who prefer to speak a language other than English. Spanish speaking employees have increased in the past two decades, and now constitute the largest minority group in the workforce.1 For various reasons, employers have responded, ever more increasingly, by requiring English to be spoken on the job at differing times and places. While some courts seem to be in agreement on the limitation of speaking another language in the workplace other than English, there is not a complete agreement as to how English-only cases should be handled. Although language is not protected under "human rights" legislation, many employers are finding themselves vulnerable to discrimination * Assistant Professor, Business Law, Western Carolina University, Cullowhee, NC 28723, [email protected] 1 See “Hispanics Now Largest U.S. Minority,” CBS News, Washington, January 21, 2003, http://www.cbsnews.com/stories/2003/01/21/national/main537369.shtml (last accessed 26 March 2006). 2 / Vol. 41 / Business Law Review lawsuits, generally in the form of national origin discrimination.2 Many believe that diversity in the workplace brings many benefits to business, including a greater variety of skills and life experiences, however, it also brings with it many problems. These problems are varied and can include safety, customer relations, and employee harmony. Clearly, all employees need to understand each other, especially in emergencies or when handling dangerous equipment, but the extent to which an employer can require the speaking, understanding, and comprehension of English is somewhat limited. Some English speaking customers may feel uncomfortable with employees who are not speaking English, but accommodating customers’ linguistic insecurities cannot be accomplished by discrimination in employment practices. There is some effective segregation of employees in the workforce by ethnic group when separate languages are spoken, but expressions of culture and ethnicity necessarily require language, and language is necessary in the social context of business and employment. II. ENGLISH ONLY, YES Garcia v. Spun Steak is the leading case on speaking English-only policies in the workplace. 3 Spun Steak did not require “applicants to speak or to understand English as a condition of employment.”4 Over 70 percent of Spun Steak’s employees spoke Spanish, and spoke freely during work hours until Spun Steak started receiving complaints that “some workers were using their bilingual capabilities to harass and to insult other workers in a language that they could not understand.”5 The complaints were that two Hispanics, Garcia and Buitrago, made “derogatory, racist comments in Spanish about two co-workers, one of whom is African-American and the other Chinese-American.”6 Some employees who operated machinery claimed that they were distracted when others