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Linguistic Human Rights:

A Sociolinguistic Introduction

 by Prof. Peter. L Patrick

Dept. of Language & Linguistics

University of Essex

Asylum

Summary: English-Only Rules and Cases in the US Workplace

[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 US federal government executive (i.e. not the judiciary – not a court). Its guidelines and decisions are not legally binding on the courts, though they are intended to establish a basis for judicial reference.]

 

Legal Theories for Discrimination Cases

o       The US federal courts have adopted two general theories about how to decide discrimination cases brought under Title VII: Disparate Impact and Disparate Treatment.

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

o      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.

 

o      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 California radio station, was fired from his position when he violated the station’s policy to broadcast only in English.

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:

    1. The United States is an English-speaking country and California is an English-speaking state,
    2. Spanish spoken among co-workers disrupts the workplace,
    3. The English-only rule promoted racial harmony, and
    4. 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.

 

o      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.

o        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

      1. Title VII does not protect workers’ expression of their culture at work,
      2. Privileges in employment are legitimately controlled by the employer, and
      3. 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.

o       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.

o       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.”

o       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.

o       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.

o       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.

o       In sum: Language is providing a means for national-origin discrimination.

 

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Last revised 2 November 2005