Written by Nick Stratouly
Introduction
“How are you?” asked one worker.
“I’m very well; you?” responded the other.
“Very good, very good, thanks.”
Many of us overlook the common conversations that we engage in every day in the workplace. The workplace, while possibly not as enjoyably social as the local bar or restaurant, is a very important social setting for most employees. The cooperative workplace of today’s economy simply could not function if speech were quelled or prohibited.
The irony, though, is that, for some, speech is actually quelled and prohibited. In workplaces across the United States, policies called “English-Only policies” limit or at times outright ban certain workplace speech. These policies essentially mandate that employees speak English at all times (except for breaks), even though some employees may not be close to fluent in English.
If this scenario seems inherently unfair, the legal situation only further compounds the unfairness. The law of workplace discrimination, Title VII, does very little to redress claims of language discrimination in the workplace. Courts and the Equal Employment Opportunity Commission (EEOC) seesaw back and forth between progressive pro-employee and regressive pro-employer stances on English-Only policies. This legal tension has effectively left many non-English speaking employees without legal remedy; such an injustice is anathema to our modern society and must be redressed. My proposal, the Employment Language Fairness Act, will curtail many of these policies and ensure the workplace continues to progress toward a fair, open, and equally-accessible place, regardless of English fluency.
The Problems with English-Only Policies
The negative social and economic consequences that stem from these English-Only policies reverberate through the workplace, the home, the government, and the economy. The very first effect that comes to mind is individual: Non-English speakers who are prohibited from speaking their native language feel inferior, isolated, and intimidated. Their workplace essentially deems them “second class,” and forces them to speak a language that they may not be comfortable speaking. Such a situation is both stressful and inhumane.
Further, because of the deep connection between language and culture, these policies have penumbral effects on the individual outside the workplace. The “second-class” mentality breeds feelings of inferiority that leech into the employee’s home life; this leeching causes the destruction of communities by stamping out language identity, a crucial component to culture. Without language identity, the unity of a community as expressed through a collective culture is diminished. The diversity that these languages and cultures provide disappears; while proponents of these policies advocate for this sort of “assimilation,” monolingualism and monoculturalism enclose us in our own culture.
Americans who speak a language other than English: 18%
Europeans who speak a second language: 53%
Number of weeklyjobs posted
on the recruiting website
Indeed.com that require
bilingualism: 12,000+
The monolingualism that stems from these policies leads to economic effects that many proponents of English-Only policies fail to take into account. By both ensuring the English speaker has a “safe harbor” at the workplace (that is, the English speaker need not learn a second language), and requiring the non-English speaker to learn and speak English, English-Only policies contribute to the dearth of bilingualism in the United States. This lack of bilingual citizens may not seem like a problem at first, but, considering the ever-globalizing economy and the ever-growing thirst of multinational employers to hire bilingual employees, these English-Only policies are in fact decreasing America’s competitiveness abroad.
In addition to the negative social and economic effects of these policies, the law is helping to eliminate the diversity and fairness that have become an important, unique, and valuable part of American culture and progress.
The Problems with the Law
The main law governing workplace discrimination is Title VII. Aimed at ensuring the basic equality of economic opportunity for all, Title VII prohibits certain employer actions based on “race, color, religion, sex, or national origin.” Congress protected these five characteristics because many employers had been discriminating against various “socially salient groups,” usually minority groups that shared the same race, color, religion, sex, or national origin. This list of protected characteristics, while broad and important, is in fact a huge part of the problem non-English speakers face today: Language is not an enumerated protected characteristic. Because language is often a shared characteristic between the members of “socially salient” minority groups, it should be included in Title VII’s protected characteristics.
Because language is not an enumerated characteristic, though, non-English speakers have had to jerry-rig their legal claims into a “national origin” claim under Title VII. These non-English speaking plaintiffs, unfortunately, have not been successful and have actually contributed to the quagmire that is the law in this field today. The earliest case, Garcia v. Gloor, fell squarely on the side of the employer, stating that language is not a protected characteristic and that Title VII does not support an interpretation that language is the equivalent of national origin.
“Neither the statute nor common understanding equates national origin with the language that one chooses to speak.”
– Garcia v. Gloor
The EEOC, post-Gloor, swung the pendulum toward the aggrieved employee in its regulations on English-Only policies. In these regulations, the EEOC deems English-Only policies presumptively invalid (a “burdensome term” of employment) because “the primary language of an individual is often an essential national origin characteristic.” Thus, the EEOC’s regulations require employers to show a “business necessity” to override the presumption of invalidity. If employers have a valid “business necessity,” their English-Only policy is acceptable under Title VII.
“The primary language of an individual is often an essential national origin characteristic.”
– EEOC, 29 C.F.R. § 1606.7
Despite the progress made under the EEOC’s new guidelines, the pendulum of legality quickly swung back toward the employer. First, a pro-employee case applying the EEOC’s new guidelines — Gutierrez v. Municipal Court — was vacated as moot by the United States Supreme Court, meaning the case lost all precedential value. The Ninth Circuit, which had issued the decision in Gutierrez, seized upon the void left by the vacated decision and issued its ruling in Garcia v. Spun Steak. There, the Ninth Circuit followed the Fifth Circuit in Gloor and upheld the English-Only policy. Further, the Ninth Circuit expressly rejected the EEOC guidelines, stating “nothing in the plain language of [Title VII] supports [the] EEOC’s English-only rule guideline.” Thus, back the pendulum swung toward the employer.
The most recent circuit case, Maldonado v. City of Altus, provided some hope for the discriminated-against employee. While not a “home run” for employees, Maldonadoreinstated court respect for the EEOC guidelines, finding them useful and authoritative. The court also recognized that the English-Only policies in place could reasonably be seen as “expressing hostility” toward a linguistic minority. Because the case only reached summary judgment, though, Maldonado was not as precedentially influential as earlier cases like Gloor and Spun Steak.
The legal quagmire left by the line of cases dealing with English-Only policies, coupled with the numerous negative consequences that stem from these policies, illustrate that a solution is direly needed.
The Solution
The Employment Language Fairness Act
– language becomes a protected characteristic
– existence of employer’s policy satisfies employee’s burden of proof
– employer must show “business necessity” to justify the rule
The solution I propose is the Employment Language Fairness Act, or ELFA. The ELFA will do two things: First, it will amend Title VII to add language as an enumerated protected characteristic; second, it will codify the EEOC guidelines as substantive law. By codifying the guidelines, courts will no longer be at liberty to disregard them (e.g., Spun Steak), and will have to treat English-Only policies as presumptively invalid. Because the policy an employee seeks to attack is viewed as presumptively invalid, the employee will only have to show that the policy exists in order to satisfy his burden of proof. The burden of proof then shifts to the employer to show business necessity as a justification for its policy.
This statutory scheme sets up a clarified process for attacking English-Only rules in the workplace; by disassembling the currently-obfuscated legal regime of today, the ELFA will make it easier for aggrieved employees to bring claims. With more legal claims, ideally the policies in place today will be dismantled by the courts of tomorrow, allowing for a more progressive society that is open and tolerant of diversity, linguistic differences, and multiculturalism. After all, this sort of tolerance and diversity was Congress’ goal in promulgating Title VII — by ensuring “equal economic opportunity” for all, regardless of race, color, religion, sex, national origin, or language, the workplace will continue to progress toward equality.