Language, national origin, and employment discrimination: the importance of the EEOC guidelines.

• Author: Robinson, Andrew J.

INTRODUCTION I. THE EVOLUTION OF ENGLISH-ONLY JURISPRUDENCE: FROM GLOOR TO MALDONADO A. Gloor and the EEOC Guidelines B. The 1991 Amendments and Garcia v. Spun Steak C. Maldonado v. City of Altus D. District Court Decisions Since Spun Steak II. EXPLORING THE FRAMEWORK OF ADMINISTRATIVE LAW A. The Powerful Impact of Rules B. The Level of Deference Due to Agency Rules 1. Deference Required by Supreme Court Precedent 2. Deference Required by Analogy III. THE WISDOM OF THE EEOC GUIDELINES: POLICY AND PRACTICE A. Following the EEOC Guidelines Is Both Practical and Good Policy B. A Comparison to Race and Sex Discrimination Claims CONCLUSION INTRODUCTION

Title VII of the Civil Rights Act of 1964 prohibits, among other things, discrimination on the basis of national origin. (1) Over the past several decades, numerous individuals have challenged English-only language policies by claiming that they are discriminatory and have a disparate impact on certain national origin groups. (2) These individuals argue that English-only policies create a hostile work environment, which constitutes discrimination with respect to conditions of employment. (3) Since the Equal Employment Opportunity Commission (EEOC) (4) guidelines on national origin discrimination state that the mere existence of

an English-only policy is sufficient to establish a prima facie case of discrimination, (5) bilingual employees rely on these guidelines to establish a claim of disparate impact discrimination. (6) Under the guidelines, the employees do not have to prove that the policy has any substantial adverse impact in order to shift the burden to the employer; they simply must show that the employer has an English-only policy in place to establish the adverse impact. Courts, however, have been divided on whether to grant deference to these guidelines. (7)

Although national origin claims are not as common as those made under many other Title VII protected class categories, (8) they are likely to become increasingly important. Immigration is an extremely salient political topic, (9) and as the number of bilingual employees in the country continues to expand, the legality of English-only policies will continue to gain importance. (10) In addition, committees in both the Senate and the House are considering amendments to Title VII, including proposals specifically targeted to "[p]rovide relief for workers, regardless of immigration status, who are victims of labor and employment law violations." (11) Such bills would only further increase the reach of Title VII to bilingual employees and reaffirm the topic's growing importance. In light of the disagreement between circuit courts in their national-origin-discrimination jurisprudence and the likelihood of a continued increase in such complaints, it is time for the Supreme Court to determine both the scope of national origin discrimination under Title VII as well as the level of deference that is due to the EEOC guidelines on the subject.

This Comment focuses specifically on the application of the EEOC guidelines to bilingual employees, as it is in these cases that plaintiffs rely most heavily on the guidelines to demonstrate an adverse impact. Part I examines the jurisprudence of national origin discrimination against bilingual speakers. Part II then addresses the level of deference due the EEOC guidelines under standard administrative law. Finally, Part III analyzes the advantages of following the EEOC guidelines from both a theoretical and a practical standpoint, and it compares the treatment of national origin discrimination claims to those of race and sex discrimination. The EEOC guidelines represent a thoughtful and well-reasoned approach to national origin discrimination and should receive the standard deference granted to interpretative rules issued by administrative agencies.

1. THE EVOLUTION OF ENGLISH-ONLY JURISPRUDENCE: FROM GLOOR TO MALDONADO

   Workplace discrimination under Title VII can take two forms: disparate treatment or disparate impact. (12) Disparate treatment is generally thought of as the more standard, straightforward type of discrimination; a showing of disparate treatment requires the plaintiff to demonstrate that there has been unequal treatment (uneven pay or different conditions of employment, for example) that is based on protected-class status (race, color, religion, sex, or national origin). (13) In disparate treatment cases, it is necessary to prove that the employer acted with a discriminatory animus. (14)

   Most cases that challenge English-only language policies, however, are disparate impact cases. To establish a prima facie case, the plaintiff must show that a seemingly neutral policy or practice has a significant adverse impact on a protected class of employees. (15) If the plaintiff makes that showing, the burden is shifted to the employer to demonstrate a business necessity for the alleged practice. (16) Importantly, under the disparate impact theory it is not necessary to prove that the employer intended the discriminatory impact. (17)

   The major federal circuit court cases dealing with English-only policies--and the district courts' application of these decisions--were decided over a period of several decades, and they are interspersed with the issuance of the EEOC guidelines and congressional amendments to Title VII. Overall, courts range in their treatment of the guidelines from those that have held that the guidelines deserve no deference (18) to those that have held that they must receive "great deference." (19) A brief chronological summary of the evolution of the English-only jurisprudence is helpful in shedding light on the issues that courts face today.

   1. Gloor and the EEOC Guidelines

      In 1980, the Fifth Circuit became the first federal appellate court to address the issue of English-only policies and national origin discrimination, and it did so in the context of a disparate treatment claim. (20) In Garcia v. Gloor, the court addressed whether national origin discrimination was broad enough to encompass language discrimination such as English-only policies in the workplace. (21) Garcia, who was fluent in both English and Spanish, worked at Gloor Lumber and Supply, Inc., in Texas. (22) As an employee, he was subject to a rule against speaking Spanish unless with a Spanish-speaking customer. (23) When asked a question by a fellow employee, Garcia responded in Spanish in the presence of a company officer, and was subsequently discharged. (24) Garcia claimed that his language was a defining characteristic of his national origin, so that being denied the right to speak in his preferred language qualified as discrimination on the basis of his national origin. (25)

      The Fifth Circuit rejected Garcia's argument, asserting that "[n]either the statute nor common understanding equates national origin with the language that one chooses to speak. Language may be used as a covert basis for national origin discrimination, but the English-only rule was not applied to Garcia by Gloor either to this end or with this result." (26) While the Gloor court did leave open the possibility that language could be used as a proxy for national origin, and therefore that policies dealing with language could violate Title VII, it did not believe that any such policy automatically had the adverse impact required to establish a national origin discrimination claim. (27) Since Garcia had not shown that the language policy was intended to eliminate members of a certain national origin from the workplace, he did not establish the discriminatory animus necessary to maintain his disparate treatment claim. (28)

      The EEOC responded to Gloor by issuing guidelines on the topic of national origin discrimination on December 29, 1980. (29) Although not complying exactly with the Administrative Procedure Act, the EEOC generally followed formal notice-and-comment rulemaking procedures in adopting these guidelines, receiving over 250 public comments. (30) Two sections of the guidelines in particular are noteworthy. First, in section 1606.1, the EEOC stated that "[t]he Commission defines national origin discrimination broadly as including, but not limited to, the 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." (31) This section directly responded to the decision in Gloor and makes clear that "national origin discrimination" covers discrimination on the basis of language. The second important section is 1606.7, which specifically addresses "Speak-English-Only" rules. Under this provision, if the rule only applies to part of the sphere of employment, the presence of the language policy will shift the burden and require the employer to show a business necessity for the policy. (32) If, however, the rule applies at all times, including on breaks, courts should presume that the policy is burdensome and scrutinize it closely. (33)

      When these sections are read together, they set forth a much more stringent standard for language policies and national origin discrimination than did the Fifth Circuit's decision in Gloor. Under the EEOC guidelines, any employer who wants to implement a language policy could be required to provide a business justification for doing so, even without the plaintiffs proving that the language was being used as a proxy for national origin (for a disparate treatment case) or that the specific policy at issue has a significant adverse impact on the group (for a disparate impact case).

   2. The 1991 Amendments and Garcia v. Spun Steak

      In 1991, Congress amended Title VII to address several cases that had been decided by the Supreme Court following the Civil Rights Act of 1964. (34) Most notably, these amendments required that the employer bear the burden of proving that the alleged discriminatory conduct was justified...