# Petition — Garcia v. Gloor

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1113

## Text

—_—

rng |
Supreme Court, U.S,

FILED
HOV 18 1980

“JR, CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

HECTOR GARCIA,
Petitioner,
v.

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

ii
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,
17

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

iv

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 _ * . + * . . :.
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.

19

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:

3A
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

4A

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.

7%

5A

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

6A

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

ee

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

2B

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.

3B

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.

4B

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%

2C

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-

~

3c

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

4c

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

5C

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

6C

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,

7C

§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
=

8C

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

9C

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.

7%

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

2D

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.

3D

te

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

4D

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

5D

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-

6D

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.

eo

[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

7D

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.

ge

Although the trial judge concluded that
Mr. Garcia was fired for a number of reasons,
including deliberately speaking Spanish on the

8D

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

9D

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 naor 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

6E

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
the rule. The principles set forth in ©
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

7E

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.

8E

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.

9E

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.

1

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).

7

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.

2

3
4

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 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.

(c) An employer is responsible for its
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0813%3A1. Public record. Not legal advice.