The president of a Connecticut-based sheet-metal manufacturing company in 2006 informed his predominantly Latino work force that he would no longer tolerate them speaking Spanish on the job.
The new policy, written in English and Spanish, was pinned to bulletin boards and informed the workers “that there [would] be one language spoken during working time at all plants and facilities of GCI and that language is English.”
The notice, written by company president Thomas Abella, stated that the new policy was intended to ensure “safety, quality of product and efficiency” and promised that violations could lead to dismissal.
Andres Moran, a packer in the plant, immediately complained to his supervisor. Shortly thereafter, he was transferred to the position of hanger, a more strenuous and less desirable job. Moran continued to complain, and two weeks later he was laid off, despite the fact that there had been no downturn in work at the plant.
Twenty months later, Moran and four other plant workers sued in U.S. District Court in Connecticut, claiming the “English-only” policy violated Title VII on the grounds that it discriminated against them due to their national origin. Each plaintiff is seeking $100,000 in compensatory damages.
As a wide-ranging debate about immigration policy continues to rage in the U.S., new data from the EEOC suggest that conflicts of this sort may be on the upswing.
The EEOC reports that the number of charge filings alleging national origin discrimination based on English-only rules jumped from 125 in 2006 to 190 last year.
EEOC spokesman David Grinberg cautioned against drawing too great a conclusion from the spike because there were 194 English-only allegations in 2004 and 236 in 2002, a minuscule portion of the EEOC’s workload.
But he did acknowledge that “there’s certainly been a lot of focus on it.”
One reason is that the issue has become politicized. In March, the Senate adopted an amendment introduced by Sen. Lamar Alexander, R-Tenn., to redirect funds allocated to the EEOC to fight national origin discrimination claims to the Department of Education to expand English-language training. The measure, which is an amendment to the Senate’s budget resolution, will go into effect if it gets through a House-Senate conference committee.

EEOC sues

Last year, the EEOC filed suit on behalf of two Salvation Army workers in Framingham, Mass., who were fired for failing to comply with a workplace policy ordering employees to learn English within one year or lose their jobs.
This galvanized Alexander into action.
At a Senate hearing in May 2007, Alexander told EEOC Chair Naomi Earp, “I find this to be an astonishing waste of your time and taxpayer money to … by your lawsuit – require every single employer in America to worry that they will face litigation if they require English to be spoken in the workplace.”
But Grinberg contends the EEOC’s position on English-only rules is clear and fair, allowing employers to adopt them when they can show a necessity to do so.
While an English-only policy may be warranted for customer communication or safety, in the Salvation Army case, “we’re talking about two people who were isolated in a back room,” he said.
Despite the heavy criticism over the Salvation Army suit, the EEOC’s record on bringing English-only suits is sparse. Over the last 10 years, Grinberg said, the agency has brought 28 such suits. The Salvation Army suit was one of two last year and in 2006, the agency also filed just two.
But there have been several significant EEOC settlements involving English-only policies in recent years.
In 2006, the former Melrose Hotel New York and Berwind Property Group, Ltd. agreed to pay $800,000 to 13 former employees who claimed that they had been discriminated against based on their national origin, including an English-only requirement.
Also in 2006, Highland Hospital of Rochester, Inc. and Strong Health agreed to pay $200,000 to a class of Hispanic housekeeping employees who were ordered to speak only English.
In another settlement involving the EEOC, Central Station Casino in Colorado agreed in 2003 to pay $1.5 million to a class of Hispanic employees who worked in the housekeeping department and were required to speak English.

Courts are split

While the EEOC has guidelines about English-only policies in the workplace, federal courts are not required to follow them and appear to go both ways on the issue.
The 5th and 9th Circuits have upheld English-only workplace rules. (Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980); Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993).)
Last year, a U.S. District Court in New York held that a taxi company’s English-only policy was a justifiable business necessity.
And in 2005, another U.S. District Court in New York found that a retail company had a justifiable reason for implementing an English-only policy to curb hostility among employees and to assist supervisors in understanding what was being said in the workplace.
But the 10th Circuit has allowed employees to sue over an English-only policy that allegedly created a hostile work environment. (Maldonado v. City of Altus, 433 F.3d 1294 (2006).)
In the GC Industries case, no justifiable reasons to have an English-only policy are evident, according to the plaintiffs’ lawyer, Steven D. Jacobs, a partner at Jacobs, Jacobs & Shannon in New Haven, Conn.
“The company claims that [the policy] promotes safety, efficiency and quality of product,” he said. “We’re saying it’s not only offensive, but that it would … have the opposite effect” of what the company claims.
Jacobs argues that 80 percent of the employees at GC Industries are Spanish speakers and that forcing them to speak – or try to speak – English would harm efficiency.
“We don’t dispute the fact that there may be legitimate reasons to institute a policy like this,” he said. “We’re saying those reasons don’t exist in this case.”

Employers must show cause

Lawyers who counsel employers agree that English-only policies must have reasons to exist – or they will be targeted for legal action.
Barbara J. Moss, counsel in the business litigation service group at Stites & Harbison in Nashville, Tenn., said if an employer asked her advice on creating such a policy, “I would ask why. I’d ask, ‘Is there really a problem right now? Is there a safety issue?’”
Her advice to any employer is: “Don’t adopt these policies unless you have a good reason for it.”
Jonathan T. Hyman, an associate who practices in the labor and employment law practice group at Kohrman Jackson & Krantz in Cleveland, agreed.
“I would tell them blanket prohibitions are bad because that’s what draws the attention of the EEOC, which considers them per se national origin discrimination,” he said. “You shouldn’t prohibit people from speaking in their native languages at the lunch table. And if you can tie it worker safety, that’s a good thing to do.”
Lawyers should also be aware, as Jacobs suggested, that if they do get involved in an English-only case, they may find themselves public figures in a contentious debate about immigration.
Jacobs said he filed his suit against GC Industries on a Friday, and when he came to work on Monday morning his voice mail and e-mail box were full of angry respondents. The story about five legal Spanish-speaking workers suing an employer who wanted them to speak English had been reported and widely distributed over the weekend.
“Most were from what I would call the right wing,” he said. “They basically said this was emblematic of their belief that the country is going in the wrong direction.”
Most people close to the issue doubt that it will go away any time soon.
Said Hyman: “I think that as we get closer to Nov. 4, it will be even more of a hot-button issue than it is now.”