Educational materials © for/by Peter L. Patrick. May contain copyright material used for educational purposes. Please respect copyright.
Linguistic Human Rights:
A Sociolinguistic
Introduction
Dept. of Language & Linguistics
University of
Essex
Summary:
English-Only Rules and Cases in the
[This material was developed by Katie
Thomas Trites in 1997, and lightly edited by PLP]
o
English-only rules in US
workplaces typically require that employees speak no other language other than
English at any time while at work/on the job. The consequence for speaking
another language is often immediate firing.
o
Employers often give one or both
of these 2 reasons for instituting English-only rules:
§
Ease of comprehension, and
§
to promote a friendly work
environment
o
English-only cases are usually brought
under Title VII of the Civil Rights Act of 1964.
o
Title VII prohibits
discrimination “against any individual with respect to his compensation, terms,
conditions or privileges of employment because of such individual's race,
color, religion, sex or national origin.”
o
English-only cases are brought under the national origin prong of Title VII. Plaintiffs
claim that because of the inextricable link between foreign language and
foreign origin, these rules unfairly impact people of foreign origin.
o
1980 EEOC* guideline
states that discrimination on the basis of national origin includes:
§
" denial
of equal employment opportunity because of an individual’s, or his or her
ancestor’s, place of origin; or because an individual has the
physical, cultural or linguistic characteristics
of a national origin group."
[*
The EEOC is the Equal Employment Opportunity Commission, a branch of the
Legal
Theories for Discrimination Cases
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The
o
Claims that fall under the Disparate Impact theory involve cases where the employer’s rule or practice
is facially neutral (meaning that on the surface, it looks innocent and not
meant as discrimination) but affects a particular group of people more harshly
than it affects other groups.
o
So far, most English-only in the
workplace cases have been brought and decided under the disparate impact theory
because English-only rules appear facially neutral
because the employer says that EVERYONE has to speak only English.
o
Claims that fall under the Disparate
Treatment theory involve cases where the employer deliberately intends to
treat a particular group differently from another. Here, the plaintiff must prove that
the employer intended to discriminate.
o
Also under Disparate Treatment fall
cases where the plaintiff alleges that the rule creates a “hostile work environment.”
Five case summaries
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Saucedo v. Brothers Well
Services, Inc. 1979
The employer of an oil drilling
company informed his employee, Saucedo, that the company would not tolerate any
“Mesican” talk. Saucedo was then fired for speaking 2 words of Spanish to a
fellow employee while on a break. The courts recognized the company’s
requirement that the employees speak only English, because drilling was
dangerous and everyone needed to understand each other. They ruled, however,
that because the plaintiff was on a break, that the rule was unjust. The Court found for the plaintiff.
o
Garcia v. Gloor, 1980
Garcia was a Mexican-American
salesman at a lumber company, where there was a company rule that employees
speak only English. Garcia was fired when he responded in Spanish to another Mexican-American
employee’s question, which was asked in Spanish. Garcia argued that the
privilege of speaking one’s native language whenever one wanted was a privilege
that was enjoyed by the native English speakers, and therefore the rule
impacted only those of foreign origin. He further argued that his language was
inherently tied to his national origin, therefore was covered under Title VII.
The court
found for the employer,
stating that because the plaintiff was bilingual, he could easily have complied
with the rule and choose not to. The court found that because
he could comply, the rule had no discriminatory impact on him.
Note: Just after this case, the EEOC revised its
guidelines to include language in its
definition of national origin.
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Jarado v. Eleven-Fifty
Corp, 1987
This is the only case that applied the Disparate treatment theory for English-Only rules. Jarado, a
disk-jockey at a
The Court found for the employer for two reasons:
1.
the radio station had a legitimate business justification for implementing
the English-only rule (marketing, ratings, etc...) and
2.
because Jarado was bilingual,
he could easily have complied with the instructions.
o
Gutierrez v. Municipal
Court, 1988
An Hispanic
woman was fired from her job in a Municipal Court for speaking Spanish after
the office had instituted an English-only rule. Gutierrez
argued that the policy was discriminatory under the national origin prong of
Title VII, and followed the same arguments that had been used in Garcia. The
employer, the Municipal Court, argued 4 main points in defense of their
English-Only policy:
- The
- Spanish spoken among co-workers
disrupts the workplace,
- The English-only rule promoted
racial harmony, and
- The English-only rule ensured
efficient supervision.
The Court followed
the EEOC guidelines that linguistic characteristics should be considered part
of the national origin prong of Title VII, and found that the employer’s
justifications for the English-only policy were insufficient and that the rule
had a discriminatory impact. The Court found for
the Plaintiff.
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Garcia v. Spun Steak Co.,
1993
The employer had instituted an English-only
rule after some employees complained that their co-workers were insulting them in
Spanish. Two Spanish-speaking employees and their union challenged the rule,
taking the company to court.
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The Court found for the
plaintiffs,
finding that the rule violated Title VII.
o
The appeals court overturned the
decision,
again finding that the rule had no adverse impact on bilingual employees
because they could speak in either language.
o
The Court also stated in response to the
plaintiffs' adverse effects that
- Title VII does not protect workers’
expression of their culture at work,
- Privileges in employment are
legitimately controlled by the employer, and
- Speaking a language that you could
speak did not make a hostile work environment.
Main Legal Issues
EEOC v. the courts
o
The EEOC has generally sided with the
plaintiffs in these cases, and even written guidelines which included
“linguistic characteristics” as one component of national origin
discrimination. The courts, however, have made it very difficult for the
plaintiffs, and have generally sided with employers.
o
In most of these cases, the employees were
actually hired because they were bilingual, and
then fired for the same reason. In other words, the employers are more or less
saying, “You can speak your language when it suits me, but not when it suits
you.”
Linguistic Issues
o
One theory behind bringing such cases
postulates an inextricable link between language, culture and ethnicity, and
therefore to national origin. Courts are not recognizing such a link in the
situations described above.
o
See discussion on language analysis and
national origin in asylum cases here
– in such cases, many government agencies do postulate such a link, and
many linguists deny it.
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What is the nature of bilingualism? What does
it mean for Hispanic Americans and others immigrants or descendants of
immigrants to be bilingual? The courts seem to be assuming that being bilingual
means being fully comfortable and competent in both languages. For many
speakers that is simply not an adequate description of the experience of
bilingualism.
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William F. Mackey, in The Description of
Bilingualism (1968), describes bilingualism as “a spectrum of abilities in
a second language ranging from minimal ability to communicate in a second
language to equal facility in two languages.”
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Overwhelmingly these cases have been brought
by Spanish-speaking bilinguals, but their situation bears similarities to many
other immigrant groups. However, cases involving African Americans have not
been brought under Title VII national origin claims – instead they are brought
as claims involving racial discrimination. Language is thus not necessarily
explicitly thematized either in claim or decision.
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What analysis should really be used here,
and why? Possibly Disparate Treatment,
rather than Disparate Impact. This is English-only rules
almost exclusively affect people of foreign origin, and are therefore not
facially neutral. To say that English-Only rules affect native English speakers
as much as they affect non-native speakers is absurd.
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The idea that other, English-monolingual
employees feel like the Spanish speakers are making fun of them every time they
speak in Spanish, is a product of a monolingual linguistic ideology – a
worldview in which trust and understanding are restricted to interactions in a
single language.
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In sum: Language
is providing a means for national-origin discrimination.
Linguistic Human
Rights homepage
- Peter L Patrick
homepage
Last revised 2 November
2005