Garcia v. Spun Steak Co. : the Ninth Circuit Requires That Title Vii Plaintiffs Prove the Adverse Effect of a Challenged English-only Workplace Rule

• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 2WINTER 1994

NOTE

Garcia v. Spun Steak Co. : The Ninth Circuit Requires That Title VII Plaintiffs Prove the Adverse Effect of a Challenged English-Only Workplace Rule

Dan Clawson(fn*)

I. Introduction

As increasing numbers of immigrants who speak a variety of languages enter the work force across the United States, some employers have attempted to force their employees to speak English on the job.(fn1) These employers argue that English-only policies are necessary to keep the workplace from becoming a "Tower of Babel" in which safety, productivity, and worker harmony suffer.(fn2) In response, employees have challenged the English-only rules under federal employment discrimination laws on the grounds that the rules constitute national origin discrimination. These employees concede that English-only policies may be applied to all employees without animosity on the employer's part toward any national origin group. However, they contend that such policies disparately impact employees of non-Anglo origin in violation of Title VII of the Civil Rights Act of 1964.(fn3)

In Garcia v. Spun Steak Co.,(fn4) the Ninth Circuit identified the evidentiary burden that employees challenging English-only workplace policies must meet to make a prima facie case of disparate impact discrimination under Title VII. The Ninth Circuit panel held that employees challenging English-only rules cannot establish a violation of Title VII through mere assertions that the rule has caused them harm.(fn5) Rather, the plaintiffs must actually show that the application of the English-only policy has a significant adverse effect on the working conditions of the plaintiffs that is not felt to the same degree by the employee population as a whole.(fn6)

This holding explicitly rejects an Equal Employment Opportunity Commission (EEOC) guideline, under which English-only rules are per se discriminatory.(fn7) The decision allocates the burdens of production and proof in accordance with Congressional intent and with the Supreme Court's interpretation of Title VII, and fairly balances employees' need for protection from employment practices that are "built-in headwinds" against protected employees with employers' need to manage today's culturally diverse work force without fear of unwarranted litigation.

The Spun Steak court correctly resisted the temptation to expand Title VII's reach beyond that intended by Congress, holding that the statute does not protect an employee's right to cultural expression through the language of the employee's national origin. The court retained a cause of action for those employees who do not speak English fluently and who can establish that English-only rules deny them the right to converse on the job. The court also reaffirmed the right of employees to maintain a Title VII action when English-only rules are harshly applied or create a hostile environment.(fn8) By limiting the group of potential plaintiffs to those actually harmed by the policy, the decision wisely allows employers discretion to manage the inevitable problems that arise in a multilingual work force without having their decisions subject to unnecessary judicial scrutiny. Although the decision recognizes that English-only rules may impact Title VII in some circumstances, the court held that an employer's good-faith imposition of these rules on fully bilingual employees does not violate Title VII.

Section II of this Comment presents an overview of the substantive law and the enforcement mechanisms of Title VII. Section III outlines the development of federal discrimination law regarding English-only rules. Section IV examines the Spun Steak decision, and Section V analyzes the implications of this decision and its effect on discrimination law in the Ninth Circuit.

II. Title VII: The Law and Its Enforcement

The text of Title VII specifies certain groups, or protected classes, who may claim relief under Title VII.(fn9) Title VII prohibits discrimination by private employers,(fn10) labor organizations,(fn11) and employment agencies(fn12) with respect to hiring, promotion, and terms of employment.(fn13) The imposition of burdensome terms and conditions of employment on a protected class is also prohibited.(fn14)

A. Filing a Charge with the EEOC

Title VII requires aggrieved employees to seek mediation and conciliation of their charge through the EEOC or a qualified state agency before bringing court action against the employer.(fn15) The EEOC investigates the complaint and either dismisses the complaint under a "no-cause" finding or attempts to negotiate a settlement between the employer and the employee.(fn16)

If attempts at conciliation fail, the EEOC may bring suit against the employer(fn17) or it may intervene in a suit brought by the employee.(fn18) If the EEOC does not file suit within 180 days, it must issue a "right-to-sue" letter to the complaining employee upon demand,(fn19) and the employee may bring suit within 90 days.(fn20)

Decisions of the EEOC are not binding on courts, which try charges de novo.(fn21) Investigative files of the EEOC can be obtained by the opposing parties for purposes of litigation,(fn22) but the records of reconciliation hearings are sealed and cannot be used in a later lawsuit.(fn23)

B. Judicial Relief

Title VII empowers courts to grant injunctive relief, orders requiring reinstatement to employment, declaratory relief, back pay, and attorneys' fees.(fn24) Plaintiffs must prove discrimination under either of two theories of discrimination: disparate treatment or disparate impact. The Supreme Court defined the two theories in International Bros. of Teamsters v. United States(fn25) as follows:

"Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII . . . .

Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.(fn26)

The rules of proof in each theory are derived from Title VII and decisions of the United States Supreme Court. These rules specify what an employee must prove to establish a prima facie case.(fn27) The rules similarly specify the evidence an employer may present to rebut the prima facie case, thereby disentitling the employee to a judgment.(fn28) Each theory requires a three-step process of allegation and rebuttal.

1. Rules of Proof for Disparate Treatment

A facially discriminatory employment policy can only be justified where the classification is a bona fide occupational qualification (BFOQ). For example, a nursing home policy that only female nurses are hired to care for its female patients to satisfy concerns for personal privacy and modesty has been found to meet the BFOQ exception.(fn29) Where a policy turns on a characteristic that is so closely identified with one of the prohibited classifications that the characteristic is synonymous with protected status, the policy is also unlawful unless justified as a BFOQ. Employment distinctions based on pregnancy, for example, constitute unlawful sex discrimination unless a BFOQ exception applies because only women can become pregnant.(fn30) When a prohibited classification determines an employee's treatment, no animus toward the protected class affected by the policy must be shown to prove disparate treatment.(fn31)

Where employment discrimination is covert, however, a plaintiff must prove that the employment practice objected to was motivated by discriminatory intent or animus to prevail on a disparate treatment claim.(fn32) Unless the employer's intent to discriminate is self-evident, it may be very difficult for the plaintiff to prove the employer's subjective state of mind.(fn33) The rules of proof for disparate treatment aid plaintiffs by allowing rebuttable presumptions of intent to be made based on circumstantial evidence.(fn34) To make a prima facie case of disparate treatment, the plaintiff need only present sufficient evidence to give rise to an inference of discrimination.(fn35) The burden of production is then shifted to the employer, who must offer some legitimate, nondiscriminatory reason for the employment decision to avoid summary judgment for the plaintiff.(fn36) If the employer carries this burden, the plaintiff is given the opportunity to prove that the reason offered by the employer was mere pretext for discrimination.(fn37) The ultimate burden of persuasion that there was intentional discrimination remains with the plaintiff at all times.(fn38)

2. Rules of Proof for Disparate Impact

The disparate impact theory was judicially created by the United States Supreme Court in Griggs v. Duke Power Co.,(fn39) and was recently sanctioned by Congress in the Civil...