Petition — Garcia v. Gloor

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Supreme Court, U.S,

FILED

HOV 18 1980

“JR, CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

HECTOR GARCIA,

Petitioner,

ALTON V. M. GLOOR, W. H. HAUBOLDT, JR.,

WILBURN F. GLOOR and GLOOR LUMBER & SUPPLY, INC.

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES A. HERRMANN

TEXAS RURAL LEGAL AID, INC.

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

November 18, 1980

Attorneys for Petitioner

a ——

INDEX

Questions presented. . .... .. -« 1

Ouidion eas «SS +e eee ae 1

CUS SREACCAOR. 5 -4%s eo 8 8 ae 8 2

Statutory provisions involved. .. . 2

Statement of the cise. . ...- « e« s« 3

Reasons for granting the writ. ... 6

ia This Petition Presents An

Issue of Significant Public

Importance to Millions of Language

Minority Persons Whose Dominant

Language is Spanish... .. . 6

2 It is Essential That This Court

Positively Settle the Status of

Language As a National Origin

Characteristic. . . .«.e«« e 9

3. The Decision Below Conflicts With

Decisions of this Court Interpre-

ting Title VII and Raises Impor-

tant Questions of Statutory

COMBTEUBEION, «1 & « 6 6a ee

COD IGGLOR. 64 a ee eS Oe ee oe eee

Appendix (EEOC Determination). . . .App.A

Appendix (Findings of Fact and Conclusions

of Law ) o e e e e e e ee e ° . e App.B

Appendix (First Opinion and Judgment of the

Court of Appeals). « « « « «.« « « AppeC

Appendix (Substituted Opinion of the

Court of Appeals. .. +. +e «+e « App.D

Appendix (EEOC Proposed Regulations App.E

Appendix (Letter advising of denial of

petition for rehearing and_ rehearing

i. - © © « © 6 ©. & 0,06 App.F

CITATIONS

Cases:

Berke v. Ohio Dept. of Pub. Wel., 24 E.P.D.

q31,217 (6th Cir. 9/4/80. .. . 17

Casas v. Britton's Photo Supply Co.,

B-78-202 (S.D. Tex. e785) .. 18

Castaneda v. Partida, 430 U.S. 482

(1977). a . . . . a : 7 7 . + 10

Furnco Constr. Corp. v. Waters, 438 U.S.

567 (1978). . o . . - ° o - . 13

Garcia v. Gloor, 609 F.2d 156

Sen Cir. 1980). . « © © @ « 1,6

Garcia v. Gloor, 618 F.2d 264

(5th Sale 1980). + - . . 7 - 1,6,

Rhea?

Griggs v. Duke Power Co., 401 U.S. 424

(1971). . 7 >. 7. . * . * . — — . i2,13

14,15,

Hernandez v. Providence Mem. Hosp.,

EP-78-CA-179 (W.D. Tex. El Paso

Div. 1978) - . . . . . . . . . . 18

Hernandez v. Texas, 374 U.S. 475 (1954) 7

iii

Katzenbach v. Morgan, 384 U.S. 641

(1966). ° * . . . * . * aa * * > ts

Lau v. Nichols, 414 U.S. 563 (1974). 7,10

McDonald v. Santa Fe Trail Transp. Co.,

Bat: Gets ATE LROTORS a ee 8 8 16

McDonnell-Douglas v. Green, 411 U.S. 792

(1973). . ° + + o o . . - - 7,14,

Meyer v. Nebraska, 262 U.S. 399

(1923). o ~ - . . o . - . : 7 . 10

Nashville Gas Co. v. Satty,

S24. Gees: Bae CEPT hs 8 @ Oe ef 12

Resendez v. State Nat. Bank,

No. EP-78-CA-60 (W.D. Tex. 1978) 13

Saucedo v. Brothers Well Service,

464 F.Supp. 919 (S.D. Tex. 1979) 17

Vasquez v. McAllen Bag and Paper,

B-78-135 (S.D. Tex. 1978). 7 . . 18

Statutes:

28 U.S.C. §1254(1). - - . . . . > - - 2

28 UchiC. Gases &. 4M Oe ee 8 8 7

SS OU. G2. Saves 0 ee 8 OR Re 6

Of. UibsC. BESRSI IIe ee ww ee ce 6

42 U.S.C. §2000e et srg... « «© © « « 4 te

42 U.S.C. §2000e-2(a)(L)(2). .. . 2,11

2 U.8.6. “SROCCEStE ic se 6 Ee 6

Regulations:

29 ry ee §1606.1(1). 7 7 7 . . 7 . . 17

45 Fed. Reg. No. 184, p. 62728

(9/19/80). 7 _ . . . > - . . - 17

Administrative Decisions:

EEOC Dec. No. 71-446 (Nov. 5, 1970). . 17

EEOC Dec. No. 72-0281 (Aug. 9, 1971). . 17

Miscellaneous:

The Chicano Worker (Univ. Texas Press

1977). a. i _ * . + * . . < 7 . . 8

118 Congressional Record, 4909 (1972). 11

El Lenguaje De Los Chicanos: Regional and

Social Characteristics of Language

Used by Mexican-Americans, Hernandez,

Center for Applied Linguistics,

Bets 8 8 RE Re ea oe oe, ee ae ee

Hearings before the U.S. Comm. on

Civil Rights, San Antonio,

ZO SEE Ss ce Pee 6 ae 8

The Mexican-American People: The Nations

Largest Minority, Grebler (Free

PEees, WOW YOR, ASTORc 2s « ce c PF

National Center for Ed. Stats., UJ. S.

Dept. H.E.W. Bull., Georgraphic

Distribution Nativity and Age

Distribution of Language

Minorities in the United

States: Spring 1976. . . « « « « 7

On the Cost of Beiny a Mexican-American,

Some

53 Social Science Quar. 697

(March, 1973). . . - . . . - + 8

Cultural Implications of a

Mexican-American Dialect of American

English, Studies in Linguistics, Vol.

21 1969-70 Pp- tie~e . 7 . . . . . 10

Bureau of Census: 1970 Detailed

Characteristics Final Report. . . 7

The Petitioner, Hector Garcia, respect-

fully prays that a Writ of Certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

Fifth Circuit entered in this proceeding on

May 22, 1980.

QUESTIONS PRESENTED FOR REVIEW

i. Whether language is a protected

characteristic of national origin under

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000e et. seq.

2 Whether language use restrictions

applied to national origin language minori-

ties constitute per se adverse impact under

Title VII which must be justified by a

business necessity.

3: Whether prohibitive language

rules which have a demonstrated adverse

impact require a shift in the burden of

proof.

OPINION BELOW

The opinion of the Court of Appeals

for which a writ is sought is found at 618

F.2d 264 (5th Cir. 1980) attached hereto as

Appendix D. The first opinion of the

circuit panel which was withdrawn can be

found at 609 F.2d 156 (5th Cir. 1980) which

is attached as Appendix C. The Findings of

Fact and Conclusions of Law of the District

Court are attached as Appendix B and the

finding of probable cause for discrimina-

tion by the EEOC is attached as Appendix A.

Proposed Guidelines of the Equal Employment

Opportunity Commission are attached as

Appendix E.

JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was entered on

January 4, 1980. A timely Petition for

Rehearing was granted on May 22, 1980 and a

timely Petition for Rehearing En Banc was

denied on August 20, 1980 and this Petition

for Writ of Certiorari was filed within

ninety days of that date. This Court's

jurisdiction is invoked under 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS

Title VII, Civil Rights Act of 1964,

§703(a), 42 U.S.C. §2000e-2(a) It shall be

an unlawful employment practice for an

employer - (1) to fail or refuse to hire or

otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employ-

ment, because of such individual's race,

color, religion, sex, or national origin;

(2) to limit, segregate, or classify

his emp’oyees or applicants for employment

in any way which would deprive or tend to

deprive any individual of employment oppor-

tunities or otherwise adversely affect his

status as an employee because of such

individual's race, color, religion, sex, or

national origin. |

STATEMENT OF CASE

Plaintiff, a Mexican-American born in

Brownsville, Texas whose dominant language

is Spanish, was discharged from his employ-

ment for speaking Spanish to another

Mexican-American employee in violation of

the employer's "English only" rule. The

employer's rule states:

ALL PERSONNEL

"Some time ago a letter was circulated

concerning employees speaking Spanish

instead of English between themselves

here at work. It has become necessary

to again remind you to speak English.

This may be a hard habit to break, but

it nust be done.

SPEAKING SPANISH

The company realizes you have to speak

Spanish to some of our customers. Per-

sonnel will not speak Spanish between

themselves. The only exception would

be that one individual is asking about

a transaction concerning a Spanish

speaking customer and the customer is

standing there, then the transaction

can be in Spanish. If one of the

salesmen or yard men are waiting on an

individual that speaks only English and

should be approached by Spanish speaking

customers, he should excuse himself prior

to answering in Spanish."

BY: Wilburn F. Gloor

Assistant Manager

ALL PERSONNEL

"Some time ago a letter was circulated

concerning employees speaking Spanish

instead of English between themselves

here at work.

It has become necessary to put out

another reminder as the situation

has gotten out of hand. This may be

a hard habit to break, but it must be

done.

We realize you have to speak Spanish

to some of our customers and a few

yard employees do not speak English.

The people that we are talking about

are office and permanent yard personnel."

By W.H. Hauboldt, Jr.

Vice President

At the time of trial, Plaintiff was 24

years of age and spoke Spanish in his own

household. Two of his grandparents were

born in Mexico. Because his parents spoke

only Spanish, the Plaintiff did not learn

English until he started grade school in

Brownsvi lle.

Glcor Lumber and Supply, Inc. is a

corporation doing retail business in Browns-

ville, Texas. The population of Brownsville

is approximately 85% Mexican and Mexican-Amer-

ican, reflecting the composition of the

Defendant's clientele and work force.

Thirty-one of thirty-nine of the Defendant's

employees are Mexican-Americans. All of

the Me:ican-American, but none of the

Anglo-American employees, speak Spanish.

Hector Garcia was employed as a retail

salesperson by the Defendants in their

hardware store from September, 1973 until

his discharge on June 10, 1975. His duties

included stocking his department, keeping

it in order, assisting other department

sales p2rsons, and selling hardware and

building supplies.

On June 10, 1975, Hector Garcia was

overheard by Alton V. W. Gloor responding

in Spanish to a question which had been

asked of him, in Spanish, by a fellow

Mexican-American employee. Hector Garcia

was terminated on the spot by Alton Gloor

for violation of the speak "English only"

rule. A charge of discrimination was filed

with the Equal Employment Opportunity

Commission alleging that the "English only"

rule was in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §200e.

The EEOC found probable cause for discrimi-

nation on December 2, 1975 (Appendix A). A

suit was filed in the United States District

Court for the Southern District of Texas

under the Equal Emplcyment Opportunity Act

and the Civil Rights Acts, 42 U.S.C. §§1981

and 1985(3). Jurisdiction was invoked

under 28 U.S.C. §1343 and 42 U.S.C.

§2000e-5(f). Final judgment was entered on

January 27, 1977, dismissing the Plaintiff's

case (F.ndings of Fact and Conclusions of

Law att«ched as Appendix B). The judgment

was app2aled and affirmed by the United

States court of Appeals for the Fifth

Circuit. Hector Garcia v. Alton V. W. Gloor,

609 F.2d 156 (5th Cir. 1980) (Appendix C).

The Fifth Circuit withdrew its rirst opinion

and substituted another opinion, 618 F.2d

264 (Sth Cir. 1980)(Appendix D).

REASONS FOR GRANTING THE WRIT

1. This Petition presents an issue of

Significant public importance to millions

of language minority persons whose dominant

language is Spanish. The treatment of

national origin language minorities has

been a question of national concern. \

The Petitioner, Hector Garcia, is

Spanish dominant by birth, culture and

social setting. His langiage is a charac-

teristic with which Title VII is concerned.

In McDoniell Douglas v. Green, 411 U.S. 792

(1973), this Court stated that:

Griggs was rightly concerned that

chi Ldhood deficiencies in the ed-

ucation and background of minor-

ity citizens resulting from

forces beyond their control, not

be allowed to work a cumulative

and invidious burden on _ such

citizens for the remainder of

their lives. Green, supra. at

806.

There are 10.6 million ethnic Hispanics

with Spanish language backgrounds in the

United States. U. S. Bureau of Census: 1970

Detailed Characteristics Final Report PC

(1) D-4, D-7, D-33, D-45; National Center

for Ed. Stats., U. S. Dept. of H.E.W.

1 Congress and the courts have sought to rectify

the problems caused by language differences.

Bi-lingual Education Act, Title VII Elementary

and Secondary Education Act, 20 U.S.C. §880(b)

et. seq. (Supp. IV 1974); Voting Rights Act of

1975, 42 U.S.C. §1973 aa-l(a)-(e) (1975);

Lau v. Nichols, 414 U.S. 563 (1974);

Katzenbach v. Morgan, 384 U.S. 641 (1966);

Hernandez v. Texas, 374 U.S. 475 (1954).

Bulletin, Geographic Distribution, Nativity,

anc Age Distribution of Language Minorities

in the United States: Spring 1976 (8/22/78).

Language may be the most important single

element of ethnic or social identification

for linguistic minorities such as Mexican-Ame-

ricans. Language is the main characteristic

by which Mexican-Americans in the Southwest

distinguish themselves.

Supression of the Spanish language in

the Southwest has been identified as a

prime source of discrimination and tension.

Hearings before the United States Commission

on Civil Rights, San Antonio, Texas, December

9-14 (1968) pps. 126, 147, 153-158, 163-176,

600, 881-882, (U. S. Gov. Printing Office,

1969). Finally, the failure of society and

government to recognize the Spanish lan-

guage as the most salient characteristic of

Mexican-Americans has contributed to econo-

mic deprivation for Mexican-Americans.

The Chicano Worker, 19-25 (University of

Texas Press 1977); Postan and Alvires,

On The Cost of Being a Mexican-American, 53

Social Science Quarterly, 697 (March,

1973).

The decision below will determine the

extent to which other important character-

istics of Mexican-Americans and other

national origin groups will be scrutinized.

The decision may also adversely affect the

ability of over 28 million persons in the

United States whose primary language is not

English to obtain educational, social, and

housing rights and protections.

The Petition presents an issue of

exceptional, continuing public importance.

The involvement of the various amici in the

Courts below including, the Mexican-American

Legal Defense and Education Fund, League of

United Latin American Citizens, Equal

Employment Opportunity Commission and the

Lumbermen's Association of Texas, indicate

the broad public interest in this case.

x. It is essential that this Court

positively settle the status of language as

a national origin characteristic.

Language is an essential characteris-

tic of national origin. Lanquage, as a

dominant characteristic of Mexican-Americans,

has been recognized and is supported by

numerous authorities. See, The Mexican-Amer-

ican People; The Nation's Largest Minority,

Grebler, Moore, Guzman,. (Free Press, New

York 1970), p. 439; El Lenguaje De Los

Chicanos: Regional And Social Character-

istics of Language Used By Mexican-Amer-

icans, Hernandez, Coten, Beltramo, Center

for Applied Linguistics, 1975.

The primary language of an individual

used since birth, correlates closely, if

not absolutely, with his ancestry as the

Court noted in Lau v. Nichols, 414 U. S.

563 (1974). Failure to recognize and treat

fairly language differences is unacceptable

in the context of public education. Lau,

supra. Language differences have _ been

recognized as prote ted characteristics

under Constitutional analysis.

"The protection of the Constitution

extends to all those who speak other

languages as well as to those born

with English on the tongue. Perhaps

it would be highly advantageous if all

hai ready understanding of our ordi-

nary speech, but this cannot be coerced

by methods which conflict with the

Constitution - a desireable end cannot

be prompted by prohibited means."

Meyer v. Nebraska, 262 U.S. 399 (1923)

at 401.

See also, Castaneda v. Partida, 430 U. S.

482 at 485 ft. nt. 5 (1977); Philip Ortega,

Some Cultural Implications of a Mexican

American Dialect of American English,

Studies in Linguistics, Vol. 21, 1969-70 p.

Vie

A definition of national origin to

include language characteristics is necess-

ary to effectuate the remedial purposes of

Title VII. Senator Williams, the principal

author of the 1972 amendments to Title VII,

defined Hispanic Americans as _ Spanish

speaking and stated that they needed the

protection of Title VII because of their

cultural and linguistic isolation:

Those who have come from the South

from Spanish-speaking lands, also

came here for opportunity. From

depressed lands, they came to get

jobs. Their assimilation has yet to

be completed. The other [immigrants |

I have mentioned have been assimilated

quite fully, notwithstanding that they

came to a land where they were not in

a majority in terms of religion or

national origin; but those from the

South, who came with another language,

the Spanish-speaking people who came

her2, have yet to be assimilated.

118 Congressional Record, 4909 (1972).

The assertion of the Court of Appeals that

"neither the statute nor common understand-

ing equate national origin with language"

is demonstrably false and inconsistent with

precedent and Congressional intent. Garcia,

618 F.2d at 268.

a4 The decision below conflicts with

decisions of this Court interpreting Title

VII and raises important questions of

statutory construction.

This is a case of first impression

involving prohibatory language rules as

national origin discrimination under Title

VII. The Petitioner raises the issue of

whether a work rule prohibiting the speak-

ing of Spanish constitutes discrimination

on the basis of national origin when applied

to a Mexican-American employee who speaks

English as a second language and who was

discharced after he spoke a few words of

Spanish to a Mexican-American co-worker.

Title V.I, §703(a)(1)(2) is the statutory

basis for the Supreme Court's decision in

Griggs v. Duke Power Co., 401 U.S. 424

(1971) which held that Title VII proscribes

practices which are fair in form but discri-

minatory in operation. Nashville Gas Company

v. Satty, 434 U.S. 136, 140-141 (1977).

In Griggs, it was established that

where a condition of employment adversely

impacts on a protected class, the employer

must show that the practice is justified by

business necessity. Intent on the part of

the employer or the employee is irrelevant.

Title VII and Griggs are concerned

with nevtral criteria which have an adverse

impact. Griggs, supra. at 429. A high

school diploma is no less of a choice than

language useage but the question to be

answered is not that of choice but of

impact on a protected group. The Court

below ruled that as a matter of law there

is no discriminatory effect arising from

the discharge of a language minority who

does not speak English when capable of

doing so, i.e., if it is possible for a

language minority to speak English then the

use of his native language can be penalized

without reason by the employer. In addi-

tion, the Court below required the Peti-

tioner to justify his violation of the

employer's "English only" rule before the

employe1 was required to assume his burden

of proof under Griggs. By so doing the

decision interjected an evidentiary burden

which is not proper and which is a signifi-

cant departure from the standards estab-

lished by this Court in Griggs and

Furnco Construction Corporation v. Waters,

438 U.S. 567, 574-575 (1978).

The Fifth Circuit substituted its own

ideas about the significance of language as

a national origin characteristic rather

than apply the appropriate legal test under

Griggs. This Court has admonished lower

courts to choose the appropriate standard

for analysis and follow through with it.

Furnco, supra. at 574-575. The problem

addressed by the Court in Furnco was:

Whether the Court of Appeals had gone

too far in substituting its own judg-

ment as to proper hiring practices in

the case of an employer which claimed

the practices it had chosen did not

violate Title VII.

The error of the Court of Appeals in

this case is similar to the error of the

Court of Appeals in Furnco. In Furnco the

Court of Appeals based its decision on its

assumption of discriminatory impact before

requiriny the parties to complete the

proper «rder of proof, ignoring standards

of Griggs and McDonnell-Douglas. Here, the

Court below imposed a new burden on the

Plaintif£ to prove that he had a legal

right to exercise what the Court deemed a

"mere preference for his native language"

regardless of the impact of the rule on

national origin and the absence of a showing

of busin2ss necessity. By substituting its

Own opinion of language as a national

origin «haracteristic and by changing the

burden end order of proof, the Court below

precluded any chance thit the Plaintiff

could establish a prima facie case under

Griggs end obviated the necessity of the

employer having to prove a business justi-

fication for its rule.

The decision below departs radically

from Griggs in two important respects. 1)

The Court below would require that before a

prima fecie case of adverse impact can be

made, the employee nust show that the rule

is one that he or she cannot somehow avoid

regardless of its discriminatory implica-

tions. Any language minority who can speak

some English will have to walk the linguistic

tightrope on pain of discharge. 2) The

decision also appears to 1equire the employee

to find some intent, motive or purpose on

the par’ of the employer to discriminate.

This requirement is foursquare counter to

the prirciples of Griggs. The ability of

other minorities to prove their claims of

employment discrimination may also _ be

adversely affected because the decision

substantially changes the burden of proof

in an impact case.

This case is somewhat unique in that

the condition of employment about which the

Petitioner complains is directly related to

a naticnal origin characteristic, i.e.,

language. The employer's acts or rule

giving rise to the claim of discrimination

is closely tied to national origin status

itself. The burden must not be shifted to

the emp:oyee to justify his own national

origin ciaracteristics but must remain with

employer to justify his actions. The

Griggs plaintiffs did not have to excuse

the fact that they had not acquired a high

school diploma. A high school diploma is

logically more attenuated from race than

language from national origin.

Just as in a case of retaliation under

§704 of the Act, an employer should not be

allowed to use an employee's complaints or

legitimate actions in response to an em-

ployer's discriminatory conduct as an

excuse for retaliation against the employee.

There are limits to the extent to which an

employer may rebutt or defend a claim of

discrimination, i.e , there are some de-

fenses ind rebuttal arguments that may be

impermissible as a matter of law. The

Plaintiff's conduct in the instant case

certainly does not rise to the level of

felony theft described in McDonald v.

Santa Fe Trail Transportation Company, 427

U.S. 273 (1976) or the public disorder

described in McDonnell-Douglas v. Green.

Even Defendant Alton Gloor testified that

he did not think that the Plaintiff was

intentionally violating the "English only"

rule on the occasion giving rise to the

Plaintifs's discharge. In both Santa Fe

Trail and McDonnell-jouglas, the employer

was requ. red to justiiy its reliance on the

alleged misconduct of the employee as a

rebuttal to a prima facie case of discri-

mination.

The EEOC has reviewed other cases of

language discrimination and has uniformly

ruled tiat prohibitions o1 language use by

nationa; origin persons are prohibited.

EEOC Decision Number 71-446, Nov. 5, 1970;

EEOC De:ision Number 72-0281, August 9,

1971. P1rior to the events which gave rise

to Plaiitiff's complaint, the EEOC had

promulgated a general policy gui:ieline on

language rules. 29 C.F.R. §1606.1(1). The

Court below would have required a formal

regulation and gave no deference to the

guidelires or EEOC decisions contrary to

the admonitions of this Court. Griggs,

Supra. a: 433-34.

The EEOC has presently promulgated

proposed revisions of its guidelines on

discrimination because of national origin.

45 Fed. Reg. No. 184, p. 62728. Frida’’,

September 19, 1980 (Appendix E) The::e

guidelines have been published partly in

response to the Fifth Circuit decision in

Garcia v. Gloor.

There are presently three reported

cases involving language discrimination.

Garcia v. Gloor, 618 F.2d 264 (5th Cir.

1980); Berke v. Ohio Department of Public

Welfare, 24 E.P.D. 9%31,217 (6th Cir.

9/4/198C); and, Saucedo v. Brothers Well

Service, 464 F.Supp. 919 (S.D. Tex. 1979).

In the B2rke case, the Sixth Circuit applied

‘“~

a McDormnell-Douglas disparate treatment

analysis and upheld a finding of discrimi-

nation «gainst a language minority. Thece

is an urreported decision from the Western

District of Texas in which a holding was

arrived at through yet another rout>:.

Resendez v. State National] Bank, No.

EP-78-CA-60 ( Judgment 11/28/78) (bank

teller). There are pres«ntly three known

cases pending in the Southern and Western

Districts of Texas. Hernandez v. Providence

Memorial Hospital, EP-78-CA-179 (W.D. Tex.

El Paso Div. 1978)(nurse's aid = case

submitted) ; Baldomero Casas v. Britton's

Photo Supply Company, B-7&=-202 (S. D. Tex.

1978)(retail salesman and delivery person -

cas2 sutmitted on motion ‘for summary judy-

ment); Natividad Vasquez v. McAllen Bag

and Paper, B-78-135 (S.D. Tex. 1978) (truck

driver - case submitted . In addition,

pending the decision of the Fifth Circuit

on Plaintiff's Petition for Rehearing En

Banc, counsel for the Petitioner and amicus

were apprised of three instances in which

the opinion below was used as an excuse for

promulgating discriminatory language rules

in such far away places as_ Anchorage,

Alaska and San _ Francisco, California.

Every new decision aids to the confusion.

Given the restrict. ve decision of the Court

below and the generally broad language of

the proposed EEOC Guidel:nes, this Court

should move to resolve the inconsistencies

and doubt in the area beiore further time

and resources are expended.

CONCLUSION

For these reasons, a Writ of Certio-

rari should issue to review the judgment

and opinion of the Fifth Circuit.

Respectfully submitted,

TEXAS RURAL LEGAL AID,

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

BY :-

AMES A. HERRMANN

Attorney for Petitioner

November 18, 1980

APPENDIX

APPENDIX A

Control No. TSA6 0096-8

Date Filed: July 18, 1975

Date Served: September 26, i975

Mr. Hector Garcia

134 E. 10th Street, Apt. 2

Brownsville, Texas 78520 Charging

Party

Certified No. 396643

Gloor Lumber & Supply, Inc.

1900 Price Road

Brownsville, Texas 7852¢ Respondent

Certified No. 396642

DETERMINATION

Under the authority vested in me by Section

1601.19B of the Commission's Procedural

Rules, 37 Fed. Reg. 20165 (September 27,

1972), I issue, on behalf of the Commission,

the following determination as to the

merits of the subject charged.

The timeliness and all other requirements

have been met; the Respondent is an employ-

er within the meaning of Title VII.

The Charging Party alleges that the Respon-

dent violated Title VII ky discharging him

because of a discriminatoiy language policy,

failing to promote, and condoning degrading

working conditions to Mexican-American en-

ployees because of their national origin,

Spanish Surnamed Americans. The record

evidence supports the discharge allegation

only.

The Restondent was served with a copy of

the charge of discrimination on the instant

charge juring a personal conference with

the Respondent's attorney and other Res-

pondent officials on September 26, 1975.

On this date, the Respondent was asked to

submit certain investigative documents with

which the Respondent failed to comply

fully. Yurther, tie Respondent was giv=2n

the oppcrtunity to submit a written Stat2-

ment of Position regarding the allegation;.

Respondent failed to do so.

Record evidence demonstrated that tie

Respondeit enforces an employee policy/rule

which reads as follows:

RULE

SPEAKING SPANISH: "The company

realizes you have to speak Span-

ish to some of our customers.

Personnel will not speak Spanish

between themselves. The only

exception would be that one

individual is asking about a

transaction concerning a Spanish

speaking cust>mer and the custo-

mer is standing there, then the

transacton should be in Spanish.

If one of the salesmen or yardmen

are waiting on an individual that

speaks only English, and should

he be approached -by a Spanish

speaking customer, he should

excuse himself prior to answering

in Spanish."

Further, the record evidence demonstrated

that the Charging Party was employed on

September 27, 1973 through June 10, 1975 at

which time he was discharged. The Charging

Party received periodic merit wage increases

during this employment period, and a §$20C.00

cash "Bcnus" on or about June 1, 1975, for

which the Respondent's President explained

the "Bonus" plan as one ciiven to employees

with one or more years of satisfactory work

performance. No documer ted evidence was

found or produced by th: Respondent that

indicated that Charging Party's work per-

formance was not Satisfactory. The record

evidence further demonstrated that the

Charging Party's claim for unemployment

benefits through the Texas Employment

Comission was Sustained in favor of the

Charging Party after the first and final

Appeals Hearing. It indicates that Charg-

ing Party's discharge "was not of such

nature or reoccurence as to constitute

misconduct connected with the work".

This Commission has held that the enforce-

ment of a rule that prohibits or restricts

the use of the Spanish language during

working hours which has a direct affect on

Spanish Speaking employees has the unlawful

effect of discriminating on the basis of

national origin by denying to such employees

as a class, a condition, or privilege of

employment enjoyed by other employees. The

use of a policy which in fact, discrimi-

nates between classes because of ethnic

grouping is prohibited by Title VII. Here,

the Respondent has denied the Spanish

Surnamed American employees the opportunity

to converse in their native language with

which they are most familiar and has failed

to show a business need for the policy/rule.

There is reasonable cause to believe that

Respondent committed an unlawful employment

practice in violation of Title VII of the

Civil Rights Act of 1964, as amended, by

promulgating a policy/rule' restricting

Respondent's Spanish Surnamed American

employees from speaking and conversing in

Spanish without prejudice to their work

performance and for which Charging Party

was discriminatorily discharged.

With reference to the promotion of Spanish

Surnamed American's to Management Positions,

and degrading working conditions allega-

tions, there was no evidence discovered

which supports these allegations.

Having examined the entire record, I con-

clude that there is reasonable cause to

believe that Title VII of the Civil Rights

Act of 1964, as amended, has been violated

in the following manner: The Charging Party

was discharged because of a discriminatory

language policy. However, there is not

reasonable cause to believe that Title VII

has been violated regarding: The promotion

and working conditions allegation.

Having determined that there is reasonable

cause to believe that the law has been

violated, I now invite the parties to join

with the Conmission in a collective effort

toward joint resolution of the matter and

to eliminat«: unlawful employment practices.

An information sheet title "Notice of

Conciliation Process" is attached to this

letter of determination for the information

of all parties. A representative of the

Commission will contact each party in the

near future to begin the conciliation

process; until then, no action is required

of any party.

On behalf of the Commission:

ALVARO GARZA

District Director

Date: December 2, 1975

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR [HE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

HECTOR GARCIA,

INDIV:DUALLY AND ON

BEHALF OF ALL OTHEFS

SIMILARLY SITUATED

VS CIVIL ACTION NO.

75-B-130

ALTON V. W. GLOOR,

ET AL.

FINDINGS OF FACT

- Hector Garcia was an employee of

Gloor Lumber and Supply Co., Inc. from

September, 1973 until the date of his

firing June 10, 1975.

ae Gloor Lumber and Supply Co.,

Inc., a Brownsville, Texas corporation, is

in the business of selling hardware and

building materials, land development and

building construction.

3. In 1975 Gloor Lumber and Supply

had thirty-nine employees, thirty-one of

whom were Spanish surnamed Mexican-Ameri-

cans.

4. Gloor Lumber and Supply had a

language policy which permitted Spanish to

be spoken while waiting on a Spanish speaking

customer, but otherwise, English was to be

spoken. However, this policy, was only

limited to sales personnel and was only in

effect during working hours.

5. This requirement was made a

policy for valid business reasons, namely,

to improve customer relations, to aid an

employee in improving his English so that

he would be a mcre valuable member of the

business communit:y, and to improve inter-

office relationships, and was not made to

discriminate against their employees.

6. Hector Garcia was fired for

failure to update his inventory, for failing

to replenish merchandise with inventory on

hand, for failing to keep area clean, for

failing to respond to numerous reprimands,

and for failing to follow the language

policy.

7, The language policy was. not

strictly enforced since Hector Garcia had

violated the language policy at every

opportunity since the time of his hiring

according to his own testimony.

8. Hector Garcia was not discri-

minated against due to the language policy

of the defendant.

9. The firing of Hector Garcia was

on an individual basis and not because he

was a member of a class.

10. There is n> reason to certify

this case as a class action as the Court

finds the language policy as_ enforced

non-discriminatory.

CONCLUSIONS OF LAW

he This Court has jurisdiction under

42 U. S. C. §2000e-2.

as Gloor Lumber and Supply Company's

firing of Hector Garcia was neither a

violation of 42 U. £. C. §2000e-2 nor a

violation of 42 U. S. C. §§1981 and 1985

(3).

2 The language policy is a bona

fide occupational qualification.

4. Hector Garcia is not entitied:

(1) to any back pay award for

damages,

(2) to any injunctive relief,

(3) to any attorney: fees.

5. All Findings of Fat which are

more properly characterized a: Conclusions

of Law are hereby adopted a: such. All

Conclusions of Law which are more properly

characterized as Findings cf Fact are

hereby adopted as such.

6. Defendant's counsel shall submit

a proposed form of judgment consistent with

the foregoing, after approval «as to form by

plaintiff's counsel.

Signed at Laredo Texas, this 7th day

of December, 1976.

ROBERT O'CONOR, JR.

UNITED STATES

DISTRICT JUDGE

APPENDIX C

HECTOR GARCIA, etc.,

Plaintiff-Appellant,

Vv.

ALTON V. W. GLOOR, et al.,

Defendants-Appellees.

NO. 77-2358

United States Court of Appeals

Fifth Circuit

January “4, 1980

609 F.2d 156

App2al from the United States District

Court fcr the Southern District of Texas.

Before FAY, RUBIN and HATCHETT, Circuit

Judges.

ALVIN B. RUBIN, C:.rcuit Judge:

Invoking Title VII, the Equal Employ-

ment Opportunity Act, 42 U. S. C. §2000e§2

(EEO Act), Hector Garcia, a native-born

American of Mexican descent, challenges as

discriminatory his employer's rule that

prohibits employees engaged in sales work

from speaking Spanish on the job. We find

that the "speak-only-English" rule, as it

74%

was applied by Mr. Garcia's employer, does

not discriminate on the basis of national

origin. We therefore affirm the district

court's judgment that Mr. Garcia's dis-

cherge for violating the rule was not

unlawful, and, because the group of employ-

ees Mr. Garcia sought to represent was not

numerou.; enough to constitute a class, we

also affirm its denial of class action

certification.

> I.

Hector Garcia, who was’ twenty-four

years of age at the time of trial, completed

the first semester of the tenth grade in

Texas public’ schools. He speaks’ both

English and Spanish. His grandparents were

immigrants from Mexico; he is native-born,

but he has always spoken Spanish in his owh

household.

In 1975, he was employed as a salesman

by Gloor Lumber and Supply, Inc., in Browns-~-

ville, Texas. His duties included stocking

his department and keeping it in order,

assisting other department salespersons and

selling lumber, hardware and supplies. He

had received compliments from inanagement on

his work ard in May 1975 had received a

bonus cf $.:50. However, there also was

evidence thit Mr. Garcia was not a satis-

factory employee, that management's compli-

ments were bestowed as incentives to better

performance when, on occasion, his work

showed some imp)ovement and that a bonus

was awarded to all employees at year-end

without regard to merit.

Gloor had a rule prohibiting employees

from speaking Spanish on the job unless

they were communicating with Spanish speak-

ing customers. The rule did not apply to

conversation during work breaks or to

employees who worked outside in the lumber

yard.

Mr. Garcia testified that, because

Spanish is his primary language, he found

the English-only rule difficult to follow.

He testified that on June 10, 1975 he was

asked a question by another Mexican-American

employee about an item requested by a

customer and he responded in Spanish that

the article was not available. Alton

Gloor, an officer and stockholder of Gloor,

overheard the conversation. Thereafter Mr.

Garcia was discharged.

Mr. Gloor testified, and the district

court found as a fact, that Mr. Garcia's

discharge was for a combination of defi-

ciencies-failure to keep his inventory

current, failure to replenish the stock on

display from stored merchandise, failure to

keep hi; area clean and failure to respond

to nui :rous' reprimands-as well as_ for

viclation of the Enclish-only rule. The

court also found ttat the English-only

policy was not strictly enforced but that

Mr. Garcia had violated it “at every oppor-

tunity since the time of his hiring accord-

ing to 1is own testimcny."

In addition to offering this evidence

to justify firing Mr. Garciés, Mr. Gloor

testified that there vere business reasons

for the language policy: English-speaking

customers objected to communications between

employees that they could not understand;

pamphlets and trade literature were in

English and were not available in Spanish,

so it was important for employees to be

fluent in English apart from conversations

with Enyjlish-speaking customers; if employ-

ees who normally spoke Spanish off the job

were reyuired to speak English on the job

at all times and not only when waiting on

English speaking customers, they would

improve their English: and the rule would

permit supervisors, who did not’ speak

Spanish, better to oversee the work of

subordinates. The cistrict court found

that these were valid business reasons and

that they, rather than discrimination, were

the motive for the rule.

An expert witness called by the plain-

tiff testified that the Spanish language is

the most important aspect of ethnic identi-

fication for Mexican-Americans, and it is

to them what skin color is to others.

Consequently, Mr. Garcia contends, with

support from the Equal Employment Oppor-

tunity Commission (EEOC), that the rule

violates the EEO Act and the Civil Rights

Acts, 42 U. S. C. §§ 1981 and 1985(c).

Of the eight salesmen employed by

Gloor in 1975, seven were Hispanic, a

matter perhaps of business necessity for

75% of the population in that area is of

Hispanic background, and many of Gloor's

customers wish to be waited on by a sales-

man who speaks Spanish. Of its 39 employ-

ees, 31 were Hispanic, and a Hispanic sat

on the Board of Directors. There is,

therefore, no contention that Gloor discri-

minated against Hispanic-Americans in any

other way. a

The narrow issue is whether’ the

English-only rule imposes a discriminatory

condition of employment on Hispanic-Americans.

II.

[1,2] Mr. Garcia properly complains

that the court arrived at its denial of

class certification by deciding that he had

no case on the merits. The question of

class certification is a procedural one,

distinct from ‘he merits of the action.

part vv. BW. BD. Cases Co., 3 CEr. i973; (em

banc), 485 F.2d 710; Miller v. Mackey

International, Inc., 5 Cir. 1971, 452 F.2d

424 4233-28. See also Satterwhite v. City

of Greenville, 5 Cir. 1978, (en banc), 578

F.2d 987, 993-94. Whether a class should

be certified depends entirely on whether

the proposal satisfies the requirements of

Fed.R.Civ.P. 23. See generally 7 C. Wright

& A. Miller, Federal .’ractice and Procedure:

Civil §§ 1759-1770 (1''72).

[3] Although th2 reason given by the

trial judge for denying class certification

was wrong, the result reached was correct.

A prerequisite for a class act:ion is that

the class be "so numerous that joinder of

all members is impracticable." Fed.R.Civ.P.

23 (a)(i.). “The raison d'etre of the class

suit doctrine is necessity, which in turn

depends upon the qutston of number." 3B

Moore's Federal Practice 923.05, at 23-149

(2d ed. 1979). This depends on the facts of

each case and no arbitrary rules have been

established, 7 C. Wright and A. Miller,

Federal Practice and Procedure: Civil,

§1762 (1972), mor indeed should be. The

basic question is practicability of joinder

not number of interested -persons per se.

Practicability of joinder depends on size

of the class, ease of identifying its

members and determining ,their addresses,

facility of making service on them if

joined and their geographic dispersion.

See id.; 3B Moore's Federal Practice 123.05

(2d ed. 1979).

[4] Only twenty-one persons, those

Gloor employees who worked in the sales

area, could possibly have been affected by

the English-only rule. Their identity and

addresses were readily ascertainable, and

they all lived in a compact geographical

area. The suggested class therefore failed

to meet the elementary requirement that

supports the whole theory of class

action-representation by one person of a

group so numerous that joinder in one suit

would be impracticable.

III.

Although the trial judge concluded

that Mr. Garcia was fired for a number of

reasons, including speaking Spanish on the

job, the judge made no finding concerning

the substantiality of the language vio-

lation in contributing to the matrix of

motive. Perhaps under the evidence he

could not, once the omelet had been cooked,

determined what each egg had contributed to

at.

[5] Employer action does not violate

Title VII merely because a _ reprobated

reason plays some part in the employer's

decision, see Rogers v Equal Employment

Oppoitunity Commission, D. C. Cir. 1977,

179 U. S. App.D.C. 170, 551 F.2d 456; yet

the forbidden taint need not be the sole

basis for the action in order to condemn

it. The record would support a finding

that Mr. Garcia's use of Spanish was a

Significant factor and, therefore, rather

than remand for a determination by the

trial court, we will assume: for present

purposes that it was. We turn then to the

issues that appear to both parties and the

several amici to be at the core of the

case.

([6] In an employee suit for discharge

alleyed to be EEO-wrcngful, the burden is

on the employee to establish a prima facie

case of discrimination. See McDonnell

Doug. as Corp. v Green, 1973, 411 U. S. 792,

802, 93 S.Ct. 1817, 1324, 36 L.Ed. 2d 668,

677. If the English-only rule is not

discriminatory, Mr. Garcia's suit fails; if

it is shown on its face to be reprobated,

then we should next consider whether Gloor

has a lega)) defense justifying the rule.

The EEO Act sought to assure equality

of employment opportunity by making it

unlawful for an employer "to fail or refuse

to hire or to discharge any individual, or

otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employ-

ment, because of such individual's race,

color, religion, sex, or national origin."

42 U.S.C. §2000e-2(a)(1).

[7] In interpreting the statute? we

start with its plain words without pausing

to consider whether a statute differently

1 While the EEOC has considered in

specific instances whether a policy

prohibiting the speaking of Spanish

in normal interoffice contacts

discriminates on the basis of na-

tional origin, [1972] Empl.Prac.Guide

(CCH) 96293; [1972] Empl.Prac.Guide

(CCH) 96173, it has adopted neither

a regulation stating a standard for

testing such language rules nor any

general policy presumed to. be

derived from the statute, prohibiting

them. We therefore approach the

problem on the basis of the statute

itself and the case law.

10C

framed would yield results more consonant

with fairness and reason. See B. Cardozo,

The Nature of the Judicial Process 88-89

(1921). The first consideration is the

problem, not the answer, See Frankfurter,

Some Reflections on the Reading of Sta-

tutes, 47 Colum.L. Rev. 527, 529-30 (1947).

The statute forbids discrimination in

conditions of employment based on national

origin. Neither the statute nor common

understanding equates national origin with

the language that one chooses to speak.”

Moreover, Mr. Garcia's national origin is

not Mexican; he is a citizen of the United

States by birth.

Mr. Garcia and the EEOC both contend

that the English-only rule is discrimina-

tory under the statute and that it is not

justified by business necessity. We con-

sider each argument separately.

The contention that it is discrimi-

natory to prohibit speaking a _ foreign

language on the job turns on the thesis

2 The statute's legislative history

concerning the meaning of "national

origin" is "quite meager." See

Espinoza v. Farah Mfg. Co., 1973,

414 U.S. 86, 88, 94 S.Ct. 334, 337,

38 L.Ed.2d 287, 291.

11C

that, if an employee whose most familiar

language is not English is denied the right

to converse in that language, he is denied

a privilege of employment enjoyed by em-

ployees most comfortable in English; this,

necessarily, discriminates against him on

the basis of national origin because national

origin influences or determines his language

preference. To state the proposition in

those terms is virtually to expose its lack

of soundness.

No authority cited to us gives a

person a right to speak any particular

language while at work; unless imposed by

statute, the rules of the workplace are

made by collective bargaining or, in its

absence, by the employer. An employer does

not accord his employees a privilege of

conversing in English; English spoken well

or badly, is the language of our Consti-

tution, statutes, Congress, courts and the

vast majority of our nation's people.

Likewise, an employer's failure to forbid

employees to speak English does not grant

them a privilege. An employer's refusal to

hire applicants who cannot speak English

might be discriminatory if the jobs they

seek can be performed without knowledge of

that language, but the obverse is not

12C

correct: if the employer engages a bilin-

gual person, that person is granted neither

right nor privilege by the statute to use

the language of his personal preference.

Mr. Garcia was bilingual. Off the job,

when he spoke one language or another, he

exercised a preference. He was hired by

Gloor precisely because he was bilingual,

and, apart from the contested rule, his

preference in language was restricted to

some extent by the nature of his employment.

On the job, in addressing English-speaking

customers, he was obliged to use English;

in serving Spanish-speaking patrons, he was

required to speak Spanish. The English-only

rule went a step further and restricted his

preference while he was on the job and not

serving a customer.

[8] Let us assume that, as contended

by Mr. Garcia, there was no genuine business

need for the rule and that its adoption by

Gloot was arbitrary. The EEO Act does not

prohibit all arbitrary employment practices.

It ¢oes not forbid emloyers to hire only

persons born under a certain sign of the

Zodiac or persons having only long hair or

13C

short hair or no hair at all.? It is

directed only at specific impermissible

bases of discrimination-race, color, religion,

sex or national origin.* National origin

must not be confused with ethnic or socio-

cultural traits or én unrelated status,

such as citizenship or alienage, Espinoza v

Farah Manufacturing C»., 1973, 414 U. S.

86, 94,8. Ct. 334, 38 L.Ed.2d 287, or

poverty, Ybarra v. City of Los Altos Hills,

9 Cir. 1974, 503 F.2d 250, 253, or with

activities not connected with national

origin, such as labor agitation, Balderas

v. La Casita Farms, Inc., 5 Cir. 1974, 500

F.2d 195,198.

(9) Save for rejigion, the discrimi-

nations on which the /.ct focuses its laser

of prohibition are those beyond the victim's

power to alter. See Willingham v. Macon

3 Cf. NLRB v. Knuth Byothers, Inc.,

7 Cie. 1976, 537 F.2d 950, 954

(employer may discharge employee for

no reason at all sc long as the

motivation is not viclative of the

National Lalor Relations Act).

4 See generally Note, Developmeits

in the Law--Employment Discrimination

and Title VII of the Civil Rights

Act of 1964, 84 Harv.L.Rev. 1109

(1971).

14C

Telegraph Publishing Co., 5 Cir. 1975, (en

banc), 507 F.2d 1084 (employer's grooming

code that required different hair lengths

for males and females held not to consti-

tute sex discrimine tion) .> No one can

change his place of birth (national origin),

the place of birth of his forebears (national

origin), his race or fundamental sexual

characteristics. As this Court said in

Willingham, “Equal employment opportunity

may be secured only when employers are

barred from discriminating against employees

on the basis of immutable characteristics,

5 Courts have also found discrimination

in situations in which, although the

basis of discrimination was not

strictly immutable, a _ fundamental

right was involved. Willingham v.

Macon Telegraph Publishing Co., 507

F.2d at 1091. See Phillips v.

Martin Marietta Corp., 1971, 400 U.

S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613

(employment discrimination against

women with pre-school age children);

Sprogis v. United Air Lines, Inc., 7

Cir. 1971, 444 F.24. 1194 cert.

denied, 404 U.S. 991, 92 S.Ct. 536,

30 L.Ed.2d 543 (rule prohibiting

female stewardesses but not male

stewards from getting married found

discriminatory). Cf. General Electric

Co. v. Gilbert, 1976, 429 U.S. 125,

97 S.Ct. 401, 50 L.Ed.2d 343 (exclu-

sion of pregnancy from disability

benefits plan held not to be sex

discrimination).

15C

such as race and national origin. :

But a hiring policy that distinguishes on

some other ground, such as grooming codes

or length of hair, is related more closely

to the employer's choice of how to run his

business than to equality of employment

opportunity." 507 F.2d at 1091 (emphasis in

original) .°

[10] The EEO Act thus does not support

an interpretation that equates the language

an employee prefers to use with his national

origin. To a person who speaks only one

tongue, language might well be an immutable

characteristic like skin color, sex or

place of b:rth. However, the language a

person who is multi-lingual elects to speak

at a particular time is by definition a

matter of choice. No claim is made that

Garcia and the other employees engaged in

6 Some taxonomics, while ostensibly

based on mut.ble characteristics,

may be merely disguised discrimi-

nation either in intent or effect.

Thus, employing only persons who

have a high school degree when the

job can adequately be performed by

persons of lesser education can beva

concealed discrimination against

racial groups whose numbers include

fewe- high school graduates. See

Grig;;s v. Duke Power Co., 1971, 401

U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d

158.

16C. | rr

sal+s were unable to speak English. Indeed,

it is conceded that all salesmen could do

so and that this ability was an occupational

qualification because of the requirement |

that they wait on customers who spoke only

English or who used that language by their

own choice.

The rule was confined to the work

place and work hours. It did not apply to

conversations during breaks or other employee

free-tine. There is neither pretension nor

evidence that Gloor forbade speaking Spanish

to discriminate in employment or that

either the purpose or the effect of doing

sO was invidious to Hispanic-Americans:. We

do not consider rules that turn on the

language used in an employee's home, the

one he chooses to speak when not at work,

or what was spoken by his parents or grand-

parents. Tris case concerns only a require-

ment that persons capable of speaking

English jo so while on duty.

That this rule prevents some employees,

like Mr. Garcia, from exercising a preference

to converse in Spanish does not convert it

into discrimination based on national

origin. Reduced to its simplest, the claim

is “others like to speak English on the job

and do so without penalty. Speaking Spanish

17C

is very important to me and is inherent in

my ancestral national origin. Therefore, I

should be permitted to speak it and the

denial to me of that preference so important

to my self-identity is statutorily forbidden."

The argument thus reduces itself to a

contention that the statute commands employers

to permit employees to speak the tongue

they prefer. We do not think the statute

permits that interpretation, whether the

preference be slight or strong or even one

closely related to self-identity.

There is anothec foot to the statute

and to the case before us, and, lest our

opinion end while the parties wait for the

other shoe to drop, we discuss briefly the

second issue-the question of justification

for the rule.

[11] The EEO Act permits discrimi-

nation in hiring and employment "where

religion, sex, or national origin is a bona

fide occupational qualification (BFOQ) rea-

sonably necessary to the normal operation

of that particular business or enterprise."

42 U. S. C. §2000e-2(e)(1). A BFOQ thus

validates an occupational gualification

that discriminates purposively. See Dotherd

v. Rawlinson, 1977, 433 U.S. 221, 97 S.Ct.

2720, 53 L.Ed.2d 786.

18C

The trial judge, after concluding that

the Englishonly rule was not discriminatory,

also held that it was justified as a BFOQ.

This conclusion rests on a misunderst:anding

of the statute. Because the issue has been

both briefed and argued, and elucidation

may %e helpful to the EEOC and other liti-

gants, we discuss it briefly.

{[12| The BFOQ rule allows an employer

deliberately to discriminate. The

English-only rule was not deliberately

discriminatory; neither patently nor in

secret purpose did it select national

origin ¢s a qualification for employment.

Therefor2 the rule could not be said either

to have been adopted as a BFOQ or to be

legitimated by the exception.

[13] When a practice does not deli-

berately discriminate, it may be validated

as a BIOQ. A BFOQ defense is based on

business need but must be distinguished

from the “business necessity" defense [BND]

despite the semantic and evidentiary simi-

larity cf the BND. (Our use of acronyms is

deliberate so that we will not be confused

in our :liscussion by semantic similarity).

The concepts of BFOQ and BND are related in

the sense that each is founded on the

functional necessities of business operation,

19C

but the BND applies to another situation:

where an employer has utilized an employ-

ment test of ::ome other requirement not

patently discriminatory and the requirement

hs been demonstrated by the plaintiff to be

discriminatory in effect, the employer may

show in defense that the requirement is

justified by business necessity. See 42 U.

S. C. §2000e2(h); Grigg v. Duke Power Co.,

1971, 4013 U. S. 424, 91 S.Ct. 849, @&

L.Ed.2d 158. Both BFOQ and BND are defenses

but a BFOQ is a warrant for affirmatve,

deliberate discrimination while a BND is a

defense to the prima facie case made when

an apparently neutral employment practice

is shown to have discriminatory effect. 7

7 See also Board of Education v.

ye) OS ea

100 S.Ct. , 60 L.Ed.2d _, 48

USLW 4035, 4041 &4042 n.4 (relation

of "educational necessity" justifi-

cation under Emergency School Aid

Act to "business necessity" defense

under Title VII). Neither BFOQ nor

BND should be confused with defenses

available when an employer is charged

with discriminacion against an

individual on an impermissible

basis. See Board of Trustees of

Keene State College v. Sweeney,

1978, 439 U.S. 24, 99 S.Ct. 295, 58

L.Ed.2d 216; Furnco Construction

Corp. v. Waters, 1978, 438 U.S. 24,

99 S.Ct. 295, 58 L.Ed.2d 957; McDon-

n.4,

20C

This case involves neither; because

the English-only rule does not seek to

discriminate on the basis of national

origin (i.e. it does not single out national

origin for purposes of discrimination) and

has not been shown to have a discriminatory

impact on Hispanic persons, it is not

necessary to decide whether the rule would

have been warranted by either test.

[14] Mr. Garcia and the EEOC would

have us adopt a standard that the employer's

business needs must be accomplished in the

manner that appears to us to be the least

restrictive. The statute does not give the

judiciary such latitude in the absence of

discrimination. If the action of an em-

ployer 1s based on a valid, nondiscrimi-

natory motive, judges who have neither

business experience nor the problem of

meeting the employees' payroll do not have

the power to preempt an employer's business

judgment by imposing a solution that appears

Ft. nt. 7 continued: nell Douglas Corp.

v. Geen, 1973, 411 U.S. 792, 93

S.Ct.1817, 36 L.Ed.2d 668. In this

case we have assumed that Mr. Garcia

was ‘ired primarily for his use of

the English-only rule even though

Gloo: asserted legitimate, nondis-

criminatory reasons for his 4dis-

charge. See id.

21C

less restrictive. See Furnco Construction

Corp. v. Waters, 1978, 438 U.S. 531, 98

S.Ct. 2943, 57 L.Ed.2d 957.

IV.

[15] Having reached this point, it is

unnecessary for us to consider the claims

asserted under 42 U.S.C. §1981 and 42 U.

S.C. §1985(c). Section 1981, which origi-

nated in the Civil Rights Act of 1866,

assures "all persons" the same _ rights

"enjoyed by white citizens" in making and

enforcing contracts and in exercising other

described rights. "Section 1981 is a

parallel remedy against discrimination

which may deprive its legal principles from

Title VII." Blum v. Gulf Oil Corp., 5 Cir.

1979, 597 F.2d. 936, 938. ®

8 We need not, therefore, now decide

whether the provision in Section

1981 that "all persons" shall have

those described rights and benefits

accorded "white citizens" accords

protection to those who are denied

these rights because they are

Hispanic-Americans. See Manzanares

v. Safeway Stores, Inc., 10 Cir.

1979, 593 F.2d 968. cf. Guerra v.

Manchester Terminal Corp., 5th Cir.

1974, 498 F.2d 641, 653-54 (Section

1981 applies to aliens).

22C

(16) Section 1985(c), which origi-

nated with the Civil Rights Act of 1871,

gives a cause of action for damages to any

person who is a victim of a conspiracy to

deprive that person or a class of persons

of equal protection of the la\’- or of equal

privile jes and immunities under the laws.

Althougi the: statute reaches purely private

conspiracie:., Griffin v. Breckenridge,

i972, 403 JU. 8. 66, 91. B.S. 27ee, oe

L.Ed.2d 33€, because Mr. Garcia's claim

rests on a vidlation of Title VII, he may

not invoke section 1985 (c). Great Ameri-

can Federal Savings & Loan Association v.

Novotny, 1979,--U.S.---, 99 S.Ct. 2345, 60

L. Ed.24 957. Cf. Johnson v. Railway

Express Agency, Inc., 1975, 421 U. S. 454,

95 S.Ct. 1716, 44 L.Ed. 2d 295 (aggrieved

employee not limited to Title VII but may

also sue for employment discrimination

under Section 1981).

V. |

[17] Some of Mr. Garcia's evidence

was excludec by the trial judge: the

9 We do not reach the question whether

Section 1985{c) was intended to

cover only’ racial bias. See

McLellan v. Mississippi Power &

Light Co., 5 Cir. 1977, (en banc),

545 F.2d 919; Comment. A Construc-

tion of fection 1985(c) in Light of

its Origiial Purpose, 46 U.Chi.L.Rev.

402 (1979).

=*%

23C

investigative reports and determinations of

the EEOC and the transcript of proceedings

concerning Mr. Garcia's unemployment compen~

sation c]aim conducted by the Texas Employ-

ment Commissioner's (TEC) Appeals Tribunal.

If ithe exclusion of these was error, it was

harrless, for, after weighing the evidence

actually admitted, neither would have added

appreciable weight to the contention that

the rule was discriminatory. Fed.R.Evid.

103(a).

Most of the battle about the additional

evidence appears to have been fought on the

question of whether they were or were not

business records The admissibility cf

such official documents under the Federal

Rules of Evidence is not determined by

business records rules standards, but by

Rule 803(8), whic! provides for the admis 3i-

bility of the reports of public agencies.

(18) The d strict judge was, indeed,

in error in refu: ing to admit the investi-

gative report aid determinations of the

EEOC. See Peters v Jefferson chédmical Co.,

5 Cir. 1975, 51¢ F.2d 447, 450; Smith v.

Universal Services, Inc., 5 Cir. 1972, 454

F.2d 154, 157-58. That error was, as we

have said, harmless. The rule would permit

the introduction of the transcript of the

24C

TEC proceedings, which wés transcribed by

the secretary of Mr. Garcia's lawyer, only

if it were properly authenticated.

Fed.R.Evid. 901. The court's rejection of

the unauthenticated transcript of the TEC

hearing .s independent evidence was proper.

VI.

Our opinion does not, of course,

impress a judicial imprimatur on all employ-

ment rules that require an employee to use

or forbid him from using a language spoken

by him at home or by his forbears. We hold

only that an employer's rule forbidding a

bilingual employee to speak anything but |

English in public areas while on the job is

not discrimination based on national origin.

Even if we assume that the violation of the

rule war a substantial factor leading to

Mr. Gaicia's discharge, we, therefore,

affirm the district court's judgment that

Mr. Garcia was neither discharged because

of his national origin nor denied equal

conditions of employment based on that

factor; instead, he was discha) ged because,

having the ability to comp. y with his

employer's rule, he did not do so.

The judgment is AFFIRMED.

HATCHETT, Circuit Judge:

I concur in the result only.

APPENDIX D

HECTOR GARCIA, etc.

Plaintiff-Appellant,

Vv.

ALTON V. W. GLOOR, et al.,

Defendants~-Appellees.

No. 77-2358

United States Court of Appeals,

Fifth Circuit

May 22, 1980

618 F.2d 264

Mexican-American brought employment discri-

mination suit challenging his former employer's

rile prohibiting employees engaged in sales

work from speaking Spanish on the job. The

Uiited States District Court for the Southern

District of Texas, Robert O'Conor, Jr., J.,

rendered judgment for the employer.

Mexican-American appealed. After withdrawing

an earlier opinion, 609 F.2d 156, the Court of

Appeals, Alvin B. Rubin, Circuit Judge, held

that: (1) a suggested class failed to meet the

requirement that the class be so numerous that

ioinder of all members is impracticable, and

(2) the employer's rule did not discriminate on

the basis of national origin.

Affirmed.

Hatchett, Circuit Judge, concurred in the

result.

Appeal from the United States District

Court for the Southern District of Texas.

Before FAY, RUBIN and HATCHETT, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

[IT IS ORDERED that this court's opinion

reported at 609 F.2d 156 (5th Cir. 1980) be

withdrawn and the following is substituted:

(nvoking Title VII, the Equal Employment

Opportunity Act, 42 U.S.C. §2000e-2 [EEO Act],

Hector Garcia, a native-born American of Mexican

descent, challenges as discriminatory his

einployer's rule that prohibits employees engaged

in sales work from speaking Spanish on the job.

Because the group of employees Mr. Garcia

sought to represent was not numerous enough to

constitute a class, we affirm the trial court's

denial of class action certification. We

conclude that the "speak-only-English" rule, as

it was applied to Mr. Garcia by his employer,

does not discriminate on these basis of national

ocigin. We therefore affirm the district

court's judgment that Mr. Garcia's discharge

for violating the rule was not unlawful.

Hector Gircia, who was twenty-four years

of age at the time of trial, completed the

first semester of the tenth grade in Texas

Fiblic. school::. He speaks both English and

€¢2anish. His grandparents were immigrants from

Mexico; he is native-born, but he has always

spoken Spanish in his own household.

In 1975, he was employed as a salesman by

loor Lumber and Supply, Inc., in Brownsville,

‘‘exas. His duties included stocking his depart-

nent and keep2ng it in order, assisting other

department salespersons and selling lumber,

hardware and supplies. He had received compli-

ments from management on his work and in May

1975 had received a bonus of $250. However,

there also was evidence that Mr. Garcia was not

a satisfactory employee, that management's

compliments were bestowed as incentives to

better performance when, on occasion, his work

showed sore improvement and that a bonus was

awarded t: all employees at year-end without

regard to aserit.

Gloor had a rule prohibiting employees

from speaking Spanish on the job unless they

were commu)iicating with Spanish-speaking customers.

Most of G..oor's employees were bilingual, but

some who worked outside in the lumber yard did

not speak English. The rule did not apply to

those employees. It also did not apply to

conversation during work breaks.

Mr. Garcia testified that, because Spanish

is his primary lanquage, he _ found the

English-only rule difficult to follow. He

testified that.on June 10, 1975 he was asked a

question by another Mexican-American employee

about an item requested by a customer and he

responded in Spanish that the article was not

available. Alton Gloor, an officer and stock-

holder of Gloor, overheard the conversation.

Thereafter Mr. Garcia was discharged.

Mr. Gloor testified, and the district

court found as a fact, that Mr. Garcia's dis-

charge was for a combination of deficiencies--

failure to keep his inventory current, failure

to replenish the stock on display from stored

merchandise, failure to keep his area clean and

failure to respond to numerous reprimands-~as

well as for violation of the English-only rule.

The court also found that the English-only

policy was not strictly enforced but that Mr.

Garcia had violated it “at every opportunity

since the time of his hiring according to his

own testimony."

In addition to offering this evidence to

justify firing Mr. Garcia, Mr. Gloor testified

that there were business reasons for the language

policy: English-speaking customers objected to

communications between employees that they

could not understand; pamphlets and_ trade

literature wer2 in English and were not available

in Spanish, s» it was important for employees

to be fluent in English apart from conversa-

tions with English-speaking customers; if

employees who normally spoke Spanish off the

job were required to speak English on the job

at all times and not only when waiting on

English-speaking customers, they would improve

their English; and the rule would permit super-

visors, who did not speak Spanish, better to

oversee the work of subordinates. The district

court found that these were valid business

reasons and that they, rather than discrimi-

nation, were the motive for the rule.

An expert witness called by the plaintiff

testified that the Spanish language is the most

important aspect of ethnic identification for

Mexican-Americans, and it is to them what skin

color is to others. Consequently, Mr. Garcia

contends, with support from the Equal Employ-

ment Oppo tunity Commission [EEOC], that the

rule violetes the EEO Act and the Civil Rights

Acts, 42 U S.C. §§1981 and 1985(c).

Of th: eight salesmen employed by Gloor in

3975, sevei were Hispanic, a matter perhaps of

tusiness necessity, because 75% of the popula-

ition in its business area is of Hispanic back-

ground ani many of Gloor's custoners wish to be

waited on by a salesman who speaks Spanish. Of

its 39 employees, 31 were Hispanic, and a

Hispanic sat on the Board of Diiectors. There

is no contention that Gloor discriminated

egainst Hispanic-Americans in any other way.

The narrow issue is whether the

English-only rule as applied -:o Mr. Garcia

imposed a discriminatory condit:on of employ-

ment.

[1,2] Mr. Garcia properly complains that

the court arrived at its denial of class certifi-

cation by deciding that he had no case on the

merits. The question of class certification is

a procedural one, distinct from the merits of

the action. Huff v. N. D. Cass Co., 5 Cir.

1973 (en banc), 485 F.2d 710; Miller v. Mackey

International, Inc., 5 Cir. 1971 452 F.2d 424,

427-28. Whether a class shoul:| be certified

depends entirely on whether the proposal satisfies

the requiremen=s of Fed.R.Civ.P. 23. See generally

7 C. Wright & A. Miller, Federal Practice and

Procedure: Civil §§1759-1770 (1972).

{3] However, the result reached by the

trial judge was correct. A prerequisite for a

class action is that the class be "so numerous

that joinder of all members is impracticable."

Fed.R.Civ.P. 23(a)(1) "The raison d'etre of

the class suit doctrine is necessity, which in

turn depends upon the question of number." 3B

Moore's Federzl Practice 923.05, at 23-149 (2d

ed. 1979). Tais depends on the fact of each

case and no ar>ditrary riles have been estblished,

7 C. Wright and A. Miller, Federal Practice and

Procedure: Civil, §1762 (1972), nor indeed

Should be. The basic question is pract*cabi-

lity of joinder, not number of interested

persons per se. Practicability of joinder

depends on size of the class, ease of identi-

fying its members and determining their addresses,

facility of making service on them if joined

and their geographic dispersion. See id.; 3B

Moore's Federal Practice %23.05 (2d ed. 1979).

[4] Only thirty-one persons, those Gloor

employees who were Hispanic, were affected by

the English-only rule. Their identity and

addresses were readily ascertainable, and they

all lived in a compact geographical area. The

suggested class therefore failed to meet the

elementary requirement that supports the whole

theory of class action--representation by one

person of a group so numerous that joinder in

one suit would be impracticable.

Although the trial judge concluded that

Mr. Garcia was fired for a number of reasons,

including deliberately speaking Spanish on the

job in purposeful violations of Gloor's rule,

the judge made no finding concerning the substan-

tiality of the language violation in contribu-

ting to the matrix of motive. Perhaps under

the evidence he could n0t, once the omelet had

been cooked, determine what each egg had contri-

buted to it.

[5] Employer action does not violate

Title VII merely kecause a reprobated reason

plays some part in che employer's decision, see

Rogers v. Equal Emp] oyment Opportunity Commission,

D.C. Cir. 1977, 551 F.2d 456; yet the forbidden

taint need not be the sole basis for the action

in order to condemn it. The record would

support a finding that Mr. Garcia's use of

Spanish was a significant factor and, therefore,

rather than remand for a determination by the

trial court, we will assume for present purposes

that it was. We turn then to the issue that

appers to both parties and the several amici to

be at the core of the case.

The EEO Act sought to assure equality of

employment opportunity by making it unlawful

for an employer "(1) to fail or refuse to hire

or to discharge any individual, or otherwise to

discriminate 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; or (2) to limit, segregate, or

classify his employees or applicants for employ-

ment in any way which would deprive or tend to

deprive any individual of employment opportuni-

ties or otherwise adversely affect his status

as an employee, because cf such individual's

race, color, religion, sex, or national origin."

42 U.S.C. §2000e-2(a).

[6] In interpreting the statute? we start

with its plain woris without pausing to consider

whether a statute differently framed would

yield results more consonant with fairness and

reason. See B. Cardozo, The Nature of the

Judicial Process 88-89 (1921). The first

consideration is the problem, not the answer.

See Frankfurtec, Scme Reflections on the Reading

of Statutes, 47 Colum.L. Rev. 527, 529-30

(1947). The statute forbids discrimination in

employment on the basis of national origin.

Neither the statute nor common understanding

1 while the EEOC has considered in

specific instances whether a policy

prohibiting the speaking of Spanish in

normal interoffice contacts discriminates

on the basis of national orizin.

[1972] Empl.Prac. Guide (CCH) 16.93;

[1972] Empl.Prac. Guide (CCH) 96173,

it has adopted neither a regulation

stating a standard for testing such

language rules nor any general policy,

presumed to be derived from the statute,

prohibiting them We therefore approach

the problem on tlie basis of the statute

itself and the case law.

10D

equates national origin with the language that

one chooses to speak. 7 Language may be used as

a covert basis for na<ional origin discrimi-

nation, but the Engl:ish-only rule was not

applied to Garcia by Gloor either to this end

or with this result.

Mr. Garcia argues that it is discriminatory

to prohibit employees from speaking a foreign

language on the basis of a thesis that, if an

employee whose most familiar language is not

English is denied the right to converse in that

language, he is denied a privilege of employment

enjoyed by employees most comfortable in English;

this, necessarily, discriminates against him on

the basis of national origin because national

origin influences or determines his language

preference. Whether or not this argument might

have a tenable basis if made on behalf of all

employees who are bilingual or if invoked

against a rule that forbade all use of any

language but English we need not consider. Mr.

Garcia was fully bilingual. He chose delibera-

tely to speak Spanish instead of English while

actually at work. He was permitted to speak

the language he preferred during work breaks.

2 The statute's legislative history con-

cerning the meaning of "national

origin" is "quite meager." See Espinoza

v. Farah Mfg. Co., 1973, 414 U.S. 86,

88, 94 S.Ct. 334, 337, 38 L.Ed.2d 287,

291.

11D

No authority cited to us gives a person a

right to speak any particular language while at

work; unless imposed by statute, the rules of

the workplace are made by collective bargaining

or, in its absence, by the employer. An employer's

failure to forbid employees t« speak English

does not grant them a privilege. The refusal

to hire applicants who cannot speak English

might be discriminatory if the jobs they seek

can be performed without knowledge of that

language, but the obverse is not correct: if

the employer engages a bilingual person, that

person is granted neither right nor privilege

by the statute to use the language of his

personal preference. Mr. Garcia was bilingual.

Off the job, when he spoke one language or

another, he exercised a preference. He was

hired by Gloor precisely because he was bilingual,

and, apart from the contested rule, his preference

in language was restricted to some extent by

the nature of his employment. On the job, in

addressing English-speaking customers, he was

obliged to use English; in serving Spanish-speak-

ing patrons, he was required to speak Spanish.

The English-only rule went a step further and

restricted his preference while he was on the

job and not serving a customer.

[7] Let us assume that, as contended by

Mr. Garcia, there was no genuine business need

12D

for the rile and that its adoption by Gloor was

arbitrary. The EEO Act does not prohibit all

arbitrary employment practices. It does not

forbid employers to hire only persons born

under a certain sign of the zodiac or persons

having long hair or short hair or no hair at

all.? It is directed only at specific imper-

missible bases of discrimination-race, color,

religion, sex, or national origin.” National

origin must not be confused with ethnic or

sociocultural traits or an unrelated status,

such as citizenship or alienage, Espinoza v.

Farah Manufacturing Co., 1973, 414 U. S. 86, 94

S.Ct. 334, 38 L.Ed.2d 287, or poverty, Ybarra

v. City of Los Altos Hills, 9 Cir. 1974, 503

F.2d 250, 253, or with activities not connected

with national origin, such as labor agitation,

Balderas v. La Casita Farms, Inc., 5 Cir. 1974,

500 F.2d 195, 198.

[8] Save for religion, the discriminations

3 Cf. NLRB v. Knuth Brothers, Inc., 7

Cir. 1976, 537 F.2d 950, 954 (employer

may discharge employee for no reason

at all so long as the motivation is

not violative of the National Labor

Relations Act).

4 See generally Note, Developments in

the Law--Employment Discrimination and

Title VII of the Civil Rights Act of

1964, 84 Harv.L.Rev. 1109 (1971).

13D

on which the Act focuses its laser of prohibition

are those that are either beyond the victim's

power to alter, see Willingham v. Macon Telegraph

Publishing Co., |! Cir. 1975. (en banc), 507

F.2d 1084 (employer's grooming code that required

different hair lengths for males and females

held not to constitute sex discrimination),” or

that impose a burden on an employee on one of

the prohibited bases. No one can change his

place of birth (national origin), the place of

birth of his forebears (national origin), his

5 Courts also have found discrimination

in situations in which, although the

basis of discrimination was not strictly

immutable, a fundamental right was

thought to be involved. Willingham v.

Macon Telegraph Publishing Co., 507

F.2d at 1091. See Phillips v. Martin

Marietta Corp., 1971, 400 U.S. 542, 91

S.Ct. 496, 27 L.Ed.2d 613 (employment

discrimination against women with

pre-school age children); Sprogis v.

United Air Lines, Inc. 7 Cir. 1971,

444 F.2d 1194 cert. denied, 404 U.S.

991, 92 S.Ct. 536, 30 L.Ed.2d 543

(rule prohibiting female stewardesses

but not male stewards from getting

married found discriminatory). Cf.

General Electric Co., v. Gilbert, :

1976, 429 U.S. 125, 97 S.Ct. 401, 50

L.Ed.2d 343 (exclusion of pregnancy

from disability benefits plan held not

to be sex discrimination).

14D

race, or fundamental sexual characteristics.

As this court said in Willingham, "Equal employ-

ment opportunity may be secured only when

employers are barred from discriminating against

employees on the basis of immutable characteris-

tics, such as race and national origin. ...

But a hiring policy that distinguishes on some

other ground, such as grooming codes or length

of hair, is related, more closely to the em-

ployer's choice of how to run his business than

to equality of employment opportunity." 507

F.2d at 1091 (emphasis in original).

[9] The argument is made that the rule is

discriminatory in impact, even if that result

6 Some taxonomies, while ostensibly

based on mutable characteristics, may

be merely disguised discrimination

either in intent or effect. Thus,

employing only persons who have a high

school degree when the job can adequa-

tely be performed by persons of lesser

education can be concealed discrimi-

nation against racial groups whose

numbers include fewer high school

graduates. See Griggs v. Duke Power

Co., 1971, 401 U.S. 424, 91 S.Ct. 849,

28 L.Ed.2d 158. We need not here

explore the extent to which the EEO

Act forbids discrimination based on

characteristics that are not immutable.

For the purpose of this opinion, we

accept the thesis that there may be a

disparate impact based on some mutable

conditions, such as where an employee

lives. Religion is, of course, a

forbidden criterion, even though a

matter of individual choice.

15D

was not intentional, because it was likely to

be violated only by Hispanic-Americans and

that, therefore, they have a higher risk of

incurring penalties. The disparate impact test

has been applied to hiring criteria, Griggs v.

Duke Power Co., 1971, 401 U. S. 424, 91 S.Ct.

849, 28 L.Ed.2d 158, and to on-the-job policies,

Nashville Gas Co. v. Satty, 1977, 434 U. S.

136, 98 S.Ct. 347, 54 L.Ed.2d 356. It forbids

the use of any employment criterion, even one

neutral on its face and not intended to be

discriminatory, if, in fact, the criterion

causes discrimination as measured by the impact

on a person or group entitled to equal opportu-

nity. However, there is no disparate impact if

the rule is one that the affected employee can

readily observe and nonobservance is a matter

of individual preference. Mr. Garcia could

readily comply with the speak-English-only

rule; as to him nonobservance was a matter of

choice. In similar fashion, an employer might,

without business necessity, adopt a rule for-

bidding smoking on the job. The Act would not

condemn that rule merely because it is shown

that most of the employees of one race smoke,

most of the employees of another do not and it

is more likely that a member of the race more

addicted to tobacco would be disciplined.

16D

[10] We do not denigrate the importance

of a person's language of preference or other

aspects of his national, ethnic or racial

self-identification. Differences in language

and other cultural attributes may not be used

as a fulcrum for discrimination. However, the

English-only-rule, as applied by Gloor to Mr.

Garcia, did not forbid cultural expression to

- persons for whom compliance with it might

impose hardship. While Title VJI forbids the

imposition of burdensome terms and conditions

of employment as well as those that produce an

atmosphere of racial ani ethnic oppression, see

Rogers v. Equal Employment Opportunity Commission,

5 Cir. 1971, 454 F.2d 234, 238-39, cert.. denied,

1972, 406 U. S. 957, 92 S.Ct. 2058, 32 L,Ed,2d

343, the evidence does not support a finding

that the English-only rule had this effect on

Mr. Garcia.

{11] The EEO Act does not support an

interpretation that equates the language an

employee prefers to use with his national

origin. To a person who speaks only one tongue

or to a person who has difficulty using another

language than the one spoken in his home,

language might well be an immutable characteris-

tic like skin color, sex or place of birth.

However, the language a person who is multi-lin-

gual elects to speak at a particular time is by

17D

definition a matter of choice. No claim is

made that Garcia and the other employees engaged |

in sales were unable to speak English. Indeed,

it is conceded that all could do so and that

this ability was an occupational qualification

because of the requirement that they wait on

customers who spoke only English or who used

that language by choice. Nor are we confronted

with a case where an employee inadvertently

slipped into using a more familiar tongue.

The rule was confined to the work place

and work hours. It did not apply to conversa-

tions during breaks or other employee free-time.

There is no evidence that Gloor forbade speaking

Spanish to discriminate in employment or that

the effect of doing so was invidious to Hispanic

Americans. We do not consider rules that turn

on the language used in an employee's home, the

one he chooses to speak when not at work or the

tongue spoken by his parents or grandparents.

In some circumstances, the ability to speak or

the speaking of a language other than English

might be equated with national orign, but this

case concerns only a requirement that persons

capable of speaking English do so while on

duty.

That this rule prevents some employees,

like Mr. Garcia, from exercising a preference

to converse in Spanish does not convert it into

18D

discrimination based on national origin.

Reduced to its simplest, the claim is "others

like -o speak English on the job and do so

without penalty. Speaking Spanish is very

important to me and is inherent in my ancestral

national origin. Therefore, I should be permitted

to speak it and the denial to me of that pre-

ference so important to my self-

identity is statutorily forbidden." The argument

thus reduces itself to a contention that the

statute commands employers to permit employees

to speak the tongue they prefer. We do not

think the statute permits that interpretation,

whether the preference be slight or strong or

even one closely related to self-identity.

Mr. Garcia and the EEOC would have us

adopt a standard that the employer's business

needs must be accomplished in the manner that

appears to us to be the least restrictive. The

statute does not give the judiciary such latitude

in the absence of discrimination. Judges, who

have neither business experience nor the problem

of meeting the employees' payroll, do not have

the power to preempt an employer's business

judgment by imposing a solution that appears

less restrictive. See Furnco Construction

Corp. v. Waters, 1978, 438 U.S. 567, 98 §$.Ct.

2943, 57 L.Ed.2d 957.

19D

IV.

Having reached this point, it: is unnecessary

for us to consider the claims asserted under 42

U.S.C. §1981 and 42 U.S.C. §1985(c). Section

1981, which originated in the Civil Rights Act

of 1866, assures "all persons" the same rights

"enjoyed by white citizens" in making and

enforcing contracts and in exercising other

described rights. "Section 1981 is a parallel

remedy against discrimination which may derive

its legal principles from Title VII." Blum v.

Gulf Oil Co.ip., 5 Cir. 1979, 597 F.2d 936, 938.

See Johnson v. Alexander, 8 Cir. 1978 572 F.2d

1219, 1223 and n. 3, cert. denied, 439 U. S.

986, 99 S.Ct. 579, 58 L.Ed.2d 658. The facts

here that preclude relief under Title VII also

preclude a Section 1981 claim. See Blum v.

Gulf Oil Corp., 5 Cir. 1979, 597 F.2d 936,

938./

{12, 13] Section 1985(c), which originated

with the Civil Rights Act of 1871, gives a

7 We need not, therefore, now decide

whether the provisions in Section 1981

that "all persons" shall have those

described rights and benefits accorded

"white citizens" protects those who

are not denied these rights because

they are Hispanic~-Americans. See

Manzanares v. Safeway Stores, Inc., 10

Cir. 1979, 593 F.2d 968; cf. Guerra v.

Manchester Terminal Corp., 5 Cir.

1974, 498 F.2d 641, 653-54 (Section

1981 applies to aliens).

20D

cause of action for damages to any person who

is a victim of a conspiracy to deprive that

person or a class of persons of equal protection

of the laws or of equal privileges and immu-

nities under the laws. Although the statute

reaches purely private conspiracies, Griffin v.

Breckenridge, 1971, 403 U. S. 88, 91 S.Ct.

1790, 19 L.Ed.2d 338, because Mr. Garcia's

claim rests on a violation of Title VII he may

not invoke Section 1985(c). Great American

Federal Savings & Loan Association v. Novotny,

1979, 442 U. S. 366, 99 S.Ct. 2345, 60 L.Ed.2d

957.° Cf. Johnson v. Railway Express Agency,

Inc., 1975, 421 U.S. 454, 95 S.Ct. 1716, 44

L.Ed.2d 295 (aggrieved employee not limited to

Title VII but may also sue for employment

discrimination under Section 1981).

[14] Some of Mr. Garcia's evidence was

excluded by the trial judge: the investigative

reports and determinations of the EEOC and the

8 We do not reach the question whether

Section 1985(c) was intended to cover

only racial bias. See McLellan v,

Mississippi Power & Light Co., 5 Cir.

1977, (en banc), 545 F.2d 919; Comment,

A Construction of Section 1985(c) in

Light of its Original Purpose, 46

U.Chi.L.Rev. 402 (1979).

21D

transcript of proceedings concerning Mr. Garcia's

unemployment compensation claim conducted by

the Texas Employment Commissioner's (TEC)

Appeals Tribunal. If the exclusion of these

was error, it was hermless, for, after weighing

the evidence actually admitted, neither would

have added appreciable weight to the contention

that the rule was discriminatory. Fed.R. Evid.

102(a).

Most of the battle about the additional

evidence appears to have been fought on the

question of whether they were or were not

business records. The admissibility of such

official documents under the Fe:ieral Rules of

Evidence is not determined by business records

rules standards but by Rule 803(8), which

provides for the admission of re;orts of public

agencies.

[15] The district judge wis, indeed, in

error in refusing to admit the investigative

report and determinations of tie EEOC. See

Peters v. Jefferson Chemical Co. 5 Cir. 1975,

516 F.2d 447, 450; Smith v. Universal Services,

Inc., 5 Cir. 1972, 454 F.2d 154 157-58. That

error was, as we have said, harmless. The rule

would permit the introduction of the transcript

of the TEC proceedings, which wis transcribed

by the secretary of Mr. Garcia': lawyer, only

if it were properly authenticatec. Fed.R.Evid.

22D

9)1. The court's rejection of the unauthenticated

transcript of the TEC hearing as independent

evidence was proper.

[16] Our opinion does not impress a

judicial imprimatur on all employment rules

that require an employee to use or forbid him

from using a language spoken by him at home or

_by his forebears. We hold only that an employer's

rule forbidding a bilingual emplJoyee to speak

anything but English in public «reas while on

the job is not discrimination based on national

origin as applied to a person who is fully

capable of speaking English and chooses not to

do so in deliberate disregard of his employer's

rule. Even if we assume that the violation of

the rule was a substantial factor leading to

Mr. Garcia's discharge, we therefore, affirm

the district court's judgment that Mr. Garcia

was neither discharged because of his national

origin nor denied’equal condition: of employment

based on that factor; instead, he was discharged

because, having the ability to comply with his

employer's rule, he did not do so

The judgment is AFFIRMED.

HATCHETT, Circuit Judge, concurs in the

result.

APPEN))IX E

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Firt 14606, Vol. 45, No. 184,

Sertember 9, 1980 Guidelines on Discrimi-

nation Because of National Ori: in; Proposed

Revision Agency Eqial Employ: ent Opportu-

nity Commission Act on: Prop: sed Revision

SUMMARY: The E ,ual I.mployment Opportunity

Commission is proposing a revision of its

Guiielines on Discrimination Because of

National Origin to clarify them and to

spe cifically inform the public of unlawful

emp Loyment practices whick dis: riminate on

the basis of national oricin. These Guide-

lines reaffirm the Commission': position on

national origin discrimination as expressed

in Commission decisions and otler legal

interpretations. DATE: Comments must be

received on or before November 18, 1980.

ADDRESSES: Address all writter comments

to: Executive Secretariat, Eqial Employment

Opportunity Commission, 2401 E. Street,

NW., Room 4096, Washington, D. C. 20506.

All envelopes should be marked "National

Origin Guidelines" in the lower left corner.

FOR FURTHER INFORMATION CONTACT: Karen

Danart, Acting Director, or Raj K. Gupta,

Supervi: ory Attorney, Office of Policy

Implemeiitation, 2401 E. Street, NW., Room

4002, Wi.shington, D. C. 2(506, (202)

634 -7066.

SUPPLEM] NTARY INFORMATION: Th Equal

Employm nt Opportunity Conmiss. on is revising

its Guicelines on Discriminati:n Because of

Nationa: Origin to clarify thei: and to

incorpo) ate the Commission's p sition on

nationa. origin discrimination as expressed

in its «lecision and other legal interpreta-

tions. l’roposed §1606.1 is based on

§1606.1(b) of the current Guidelines on

Discrimination I} ecause of National Origin.

It cefines naticnal origin discrimination

bro:dly as including, but not limited to

employment discrimination because of an - «:.

individual's, or his or her ancestor's

country of origin, or because «f an indivi-

dual's cultural or linguistic « haracteris-

tic;. The Commission will carefully examine

cha ges involving the denial of equal

employment opportunity because of an indivi-

dual's name, marriage to a person of a

particular national origin, or association

wit.1 persons, organizations, schools or

rel.gious institutions identified with a

particular national origin.

The first sentence of proposed §

1606.2 is based on §1606.1(c) of the current

Guidelines, and has been revised to conform

with the coverage of Title VII It also

recognizes that Title VII principles of

disparate treatment ind adverse impéect

equally apply to nat.onal origia discrimi-

nation.

Proposed §1606.3 is based on the

exception in §1606.1(d) of the current

Guidelines. This Section recognizes the

national security exception as it appears

in §703(g) of Title VII.

Proposed §1606.4 reiterates the last

sentence in §1606.1(a) of the current

Guidelines and is based on the Commission's

lon: held position that the bona fide

occipational qualification exception under

§70:(e) of Title VII shall be strictly

construed.

| Proposed §1606.5 is based on §1506.1

(d) and (e) of the current Guideline:;.

imployers may have citizenship requi -ements

as long as they do not have the purp se of

effect of discriminating against an indivi-

dual on the basis of national origin. Se:

Espinoza v. Farah Mfg. Co., Inc. 414 U. S.

86, 92 (1973). Where a State law prohibiting

the employment of non-citizens is in conflict

with Title VII, it is superseded und:r §7)8

of the Title.

Proposed §1606.6 is derived from

several of the concerts stated in §1606.1(b)

of che current Guide-

lines and affirms that the principles of

the Uniform Guidelines on Employee Selection

Pro: :edure:s, 29 CFR Fart 1607, apply to

nat. onal origin discrimination.

Proposed §1606.6(b) specifically

recc ynize' three selection procedures which

tenc to ¢:xclude individuals on the basis of

national origin. Height or weight require-

ment3;, fluency-in-English requirements, and

training or education requirements which

deny employment opportunities to individuals

because cf their foreign training or educa-

tion, or which require foreign training or

educatior.. Employers must evaluate these

selection procedures for adverse impact.

Proposed §1606.7 recognizes that an

individual's primary language is often an

essential national origin characteristic.

According to estimates from the Survey of

Income and Education conducted by the U. S.

Bureau of Census in Spring 1976, approxi-

mate ly 28 millioa persons in the United

Stat 2s (about 13 percent of the total U. 3.

population) have non-English language bac<c-

grounds and may »%e affected by an employe-'s

speak-English-only rule. The survey ideni-

fies persons with non-English language

backgrounds as persons whose mother tongue

is not English, who normally us2 lar guages

other than English, or who live in house-

holds where languages other then English

are spoken. About 21 million, >or seventy

five percent of this group are above the

age of 18. The study shows the following

approximate numbers for each oi these

language backgrounds: Spanish, 10.6 mill:zon;

Italian, 2.9 million; German, Japanese,

Korean and Vietnamese, 1.8 miliion; Polish,

1.5 million. Approximately 2.4 million

persons in the Unitei States do not speak

any English at aii.” Under proposed

§1606.7(a), the Commission presumes that

totally prohibiting employees from speaking

their primary languaye, viclates Title VII

because it is a term and condition of

employment which discrimin:é.tes on the basis

of national origin by disacivantaging an

individual's employment opportunities and

by creating a discriminatory working environ-

ment. Therefore, wrere such a rule exists,

it will be closely ecrutinized. However,

proposed §1606.7(b) recognizes that 1equiring

employees to speak cnly in English at.

certain times would not be disc) imin: tory

if the employer shows that the rule is

justified by business necessity. When the

amployer believes that the rule is justified

by business necessity, proposed §1606.7(c)

equires the employer to clearly inform its

employees of the circumstances in which

they are required to speak only in English,

and the consequenses of violating th=2 rule.

Notice of the rule is necessary because it

is common for ind viduals whose primary

language is not Eiiglish to inadvertently

slip from speaking English to speaking

their primary lanquage. Any adverse employ-

ment decision agaanst an individual based

on a violation of the rule will be considered

as evidence of discrimination when an

employer has not given effective notice of

proposed §1606.7 do not conflict with the

Fifth Circuit's decision in Garcia v.

Gloor, 618 F.2d 264 (1980). Gloor did not

involve a speak-E1. glish-only rule which was

applied at all tines. Neither did the

facts in Gloor in‘olve a bilingual employee

whose primary lancuage was not English. In

the Court's view, Mr. Garcia who spoke both

English and Spanish failed to prove that

Spanish was his primary language.

Proposed §1606.8 states that harassment

on the basis of national origin is a violaton

of Title VII and that an employ2r has an

effirmative duty to mainta n a working

environment free from harassment on th

basis of national origin. Proposed ‘

§1606.8(c) applies ceneral Title VII prin-

ciples to the issue of harassment and

states that an employer is responsible for

the acts of its supervisory employees or

agents, regardless of whether the acts were

authorized or forbidden by the employer and

regirdless of whether the employer knew or

sho 1d have known of the acts. Proposed

§16 6.8(d) distinguishes the enployer's

res) onsibility for the acts of its agents

or supervisors from “he responsibility it

has for conduct between fe Llow employees.

This subsection states tha: liability for

acts of national origin ha-assnent in the

workplace between fellow e iployees exists

only when the employer, it; agents or

supervisory employees, knovs or should have

known of the conduct, and -he enployer

cannot demonstrate that it took immediate

and appropriate corrective action. Pro-

posed §1606.8(e) recognizes that in certain

circumstances, an employer may also be

responsible for the acts of non-employees

wit! respect to harassment of enployees on

the basis of national origin.

This revision of the Commission's

Guidelines cn Discrimination Because of

National Origin is a significant regulation

under Executive Order 12044, (43 FR 12661,

Mal. 24, 1978, as amended by E. O. 12221,

45 FR 44249, July 1, 1980). The Commission

has determined that these proposed Guide-

lines will not have a major impact on the

economy and that a regulatory analysis is

not necessary.

In compliance with Execut ve Order

12067 (43 FR. 28967, July 5, 19 8), the

Commission has coasulted with epresenta-

tives from the necessary federal agencies.

At the end of the 60 day commend period,

the Conmission will again cons lt with

these agencies on the issues raised through

the public comment process.

In compliances with Executive Order

12160 (44 FR 44787, Sept. 28, 979) and

with the Commission's Final Consumer Program

(45 FR 38930, June 9, 1980), the Commission

will notify members of the public of their

opportunity to comment on these Guidelines

by placing notices in periodic. ls likely to

be read by individuals affecteé@ by the

Guidelines, and also by direct] y mailing

the Guidelines to interested groups and

individuals.

Dat2d: Septembet 16, 1980.

Eleanor Holmes Norton Chair, Equal Employment

Opportuncity Comm) ssion.

Accordingly, it 1s proposed to amend

29 CFR Chapter XIV by revising Part 1606 to

read as follows: PART 1606--GUIDELINES ON

DISCRIMINATION BECAUSE, OF NATIONAL ORIGIN

Sec.

1606.1 Definition cf national origin

discrimination. 1606.2 Scope of title VII

protection:

1606.3 The national security exception.

1606.4 The bona fide occupational quali-

fication

exception.

1606.5 Citizenship requirements.

1606.6 Selection procedures.

1606.7 Speak-English-only rules.

1606.8 Harassment.

Authority: Title VII, Ci.il Rights

Act of 1964, as amended; (42 U. S. C.

2000e, et seq). §1606.1 Definition of

national origin discrimination.

The 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 country of origin; or

because an individual has the cultural or

1OF

linguistic characteristics of a pacticular

national origin. The Commission will

examine with particular concern cases where

individuals within the jurisdiction of the

Comnission have been denied equal employment

opportunity for reasons which are grounded

in national origin considerations, such as

(a) marriage to or association with persons

of a particular national origin; (b) member-

ship in, or association with, an organization

identified with or seeking to promote the

interests of national groups; (c) attendance

or participation in szhool;, churches,

temples or mosques, g2nerally used by

persons of a particular national origin;

and (d) because an ir iividual's name or

spouse's; name indicat2s a particular national

origin.

§1606.2 Scope of title VII protection.

Title VII of the Civil Rights Act of

1964, as; amended, pro-ects individuals

against employment di:crimination on the

basis of race, color, religion, sex or

national origin. The Titl2 VII principles

of disparate treatmen: and diverse impact

equally apply to nati»nal origin discrimi-

nation. The Guidelines ap>dly to all persons

covered by Title VII ‘coll actively referred

to as “employer” in tiese suidelines).

§1606.3 The national security exception.

11E

It is not an unlawful employment

practice to deny employment opportunities

to any individuai who does not fulfill the

national security requirements stated in

Section 703(g) of Title VII.

§1606.4 The bona fide occupational qualifi-

cation exception.

The exception stated in Section 703(e)

of Title VII, that national origin may be a

bone fide occupational qualification, shall

be strictly construed. §1606.5 Citizenship

requ irements.

(a) In those circumstancee, where

citizenship requirements have the purpose

or effect of discriminating against an

iridi vidual on the basis of national origin,

they are prohibited by Title vi1.?

(b) Some State laws prohibit the

emp] syment of non-citizens. Where these

laws are in conflict with Title VII, they

are superseded under Section 708 of the

Title.

§1606.6 Selecti>on procedures.

(a) The Uniform Guidelines on Employee

Selection Procedures, 29 CFR Part 1607,

See Espinoza v. Farah Mfg. Co., Inc.,

414 U.S. 86, 92 (1973).

12E

equally apply to discrimination 01 the

basis of national origin.

(b) The Commission has consistently

heli that the following are 2xamples of

sel2ction procedures that teid to exclude

individuals on the basis of national orig..n.

The -efore, the Commission expects a user of

the se selection procedures to evaluate them

for adverse impact. If any of these has an

adverse impact on the employment opportuni-

ties of members of a particular national

orijyin, the user must show that the selection

pro:edure is job related by validating it,

or otherwise justifying it, under the

Uniform Guidelines on Employee Selection

Procedures.

(1) Height or weight requirements.

(2) Fluency-in-English requirements,

such as denying enployment opportunities

because of an individual's foreign accent,

or inability to communicate well in English.

See CD 71-1529(1971), CCH EEOC Decisions

916231, 3 FEP Case: 952.

See CD AL 68-1- 55E(1969(, CCH EEOC

Decisions 6008, 1 FEP Cases 921.

See CD YAU 9-('48(1969), CCH EEOC me

Decisions 6054, 2 FEP Cases 78.

el nmmnnmnnnnies

13E

(3) Training or educat ion requirements

which deny employment oppor cunities to an

individial because of his or her foreign

training or education, or which require an

individual to be foreign trained or educated.

§1606.7 Speak-English-only rules.

(a) When applied at all Times. An

individual's primary language is often an

essential national origin characteristic.

Prohibiting employees at all times from

speiking their }rimary language, or the

lanyuage they speak most comfortably,

disadvantages an individual's employment

opportunities on the basis of national

origin. It may also create an atmosphere of

inferiority, isolation and intimidation

based on national origin which could result

in a discriminatory working environment.”

Therefore, the Commission believes that <.

rule requiring employees to speak only

English at all times in the workplace is a

burdensome term and condition of employment.

The Commission will presume that such a

rule violates Title VII and will closely

scrutinize it.

(b) When Applied Only at Certain

Times. An employer may have narrowly drewn

rules requiring that employees speak only

in English at certain times where the

TT Nee Tee ee eee

14£

employer can show th:t the rule is justified

by business necessity}.

for individuals whose prinary language is

not English to inadvertently change from

speaking English to speaking their primary

language. Therefore, if <1 employer be-

liev2s it has a busi) ess r2cessity for a

speak-English-only rule at certain times,

the employer must inform its employees of

the exact circumstances ari times when

speaking only in English is recuired and of

the consequences of violating the mle. If

an employer fails to effeccively notify its

employees of the rule and nake: an édvers=2

employment decision against an individual

basei on a violation of the rule, tte

Commission will consider the enployer's

application of the rule as evi:lence of

discrimination on the basis of naticaal

origin. § 1606.8 Harassment.

y (a) The Commission has coisisteatly

held that harassment on the basis of nati >nal

origin is a violation of Title VII. An

employer has an affirmative duty to naintain

a working environment free of harassnent on

the »asis of national origin.°®

(b) Ethnic slurs and other verbal or

phys .cal conduct relating to an individual's

15E

national origin ::onstitute:s harassment when

this conduct: (1) Has: the purpose oc effect

of creating an intimidating, hostile or

offensive working environment; (2) has the

-pury ose or effect of unreasonably i)ter-

fering with an individual's work perfor- _

mance; or (3) otherwise adverse ly affects —

an individual's employment opportunities.

acts and those of its agents ard supervisory

employees with respect to harassment on the

basis of national origin regardless of

whether the specific acts complaine:. of

were authorized or even forbidden by the

employer and regardless of whether the

employer knew or should have known of their

occurrence The Commission wi|1l ex: mine

the circumstances of the particular employment

relationship and the job funct ons } erformed

by the individual in determining whether an

individual acts in either a supervisory or

agency capacity.

(d) With respect to conduct bet ween

fellow employees, an employer is reeponsible

for acts of harassment in the workplace on

the »asis of national origin, where the

employer, its agents or supervisory employees,

16E

knows or should have known of the conduct,

unless the employer can show that it took

immediate and appropriate corective action.

(e) An employer may also be responsible

for the acts of nonemployees with respect

to harassment of employees in the workplace

on the basis of national origin, where the

employer, its agents or supervisory emplcyees,

knows or should have known of the conduct

and fails to take immediate and appropriate

corrective action. In reviewing these

cases, the Commission will consider the

extent of the employer's control and any

other legal responsibility which the employer

may have with respect to the conduct of

such nonemployees.

APPENDIX F

August 20, 1980

TO ALL PARTIES LISTED BELOW:

No. 77-2358 - HECTOR GARCIA, ETC. v.

ALTON V. W. GLOOR, ET

AL.

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition ()

for rehearing, and the Court having been

polled at the request of one of the members

of che Court and a majority of the Circuit

Judyes who are in regular active service

not having voted in favor of it, (Rule 35,

Federal Rules of Appellate Procedure; Local

Fifi:ch Circuit Rule 16) the petition () for

rehearing en banc has also beer denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mamniate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

By Sally Hayward

Deputy Clerk

cc: All Lead Counsel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.