Reply Brief — Garcia v. Gloor

NO. 80-810

IN THE

Supreme Court of the Thiited States

OCTOBER TERM, 1980

HECTOR GARCIA,

Petitioner,

versus

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

PETITIONER'S REPLY TO RESPONDENTS’

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

JAMES A. HERRMANN

TEXAS RURAL LEGAL AID, INC.

305 E. Jackson, Suite 206

Harlingen Texas 78550

(512) 423-3111

January 9, 1981

Attorneys for Petitioner

TABLE OF CONTENTS

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Petitioners Reply... cccccccccccsccccccvel

Certificate of Service... cccccccccccceell

Appendix A..wccccccccccccesccvescccsceeelA

Appendix B..cccccccccecccesscccsceeceeeilB

CITATIONS

Cases:

Baldomero Casas v. Brittons Photo Supply

Co., B-78-202 (S. D. Tex. 1978). . . m~

Dothard Rawlinson, 433 U.S. 321, 331-332. .7

EEOC v. Dairy Queen, Inc.,

CA-C-79-48 (S. D. Tex. 8/21/79). .. 1

Griggs v. Duke Power Co.,

401 U.S. 792 (1973). ° 2 - . + o . < 3

Lau v. Nichols, 414 U.S. 563 (1974)... 4

Nashville Gas Co. v. Satty,

434 ss R 136 (1977). - se ° ° a . - 4

Regulations:

45 Federal Register No. 250

PPp- 85632-85637 (12/29/80). - ° « 7 2

°° ow

Petitioner hereby submits his reply to

the Opposition of Respondents to the Peti-

tion for Writ of Certiorari:

i. At p.16 of their Opposition the

Respondents state that the cases Petitioner

has cited of pending cases involving lan-

guage discrimination are inapposite. This

is incorrect. An additional case has been

discovered since the Petition for Writ of

Certiorari was filed. EEOC v. Dairy Queen

Inc. ,CA-C-79-48 (S.D. Tex. 8-21-79). It is

Petitioner's understanding that the suit

involves a Mexican-American employee in a

fast food operation who resigned when he

was told tht he would be required to speak

English only. The person is fluent in

English but was told that he would be

prohibited from using Spanish. This case

has been held in abeyance pending final

disposition of this appeal. The case of

Baldomero Casas v. Brittons Photo Supply Co.,

B-78-202 S.D. Tex. 1978) cited on p.18 of

the Petition also involves a bilingual

Mexican-American salesman who resigned when

told that he would be required to speak

English only. The Resendez case involved a

bilingual Mexican-American employee who was

discharged for speaking Spanish in viola-

tion of a speak English only rule.

2

26 In addition the EEOC has finalized it

proposed guidelines on a national origin

discrimination which are reprinted as

proposed guidelines in Appendix E of the

Petition for Writ of Certiorari. See 45

Fed. Reg. No. 250 pp.85632-85637 (12-29-80).

See also Appendix B herein for the pertinent

new guidelines on speak English-only-rules.

3. The Respondent states at Page 2 that

Petitioner:

"has an easy command of the terms and

usage of the English language, uses

good grammar and syntax, and has no

difficulties in being understood when

speaking in English."

Nowhere in the record does any court hold

this and in fact the Respondent's attorney

stated that Petitioner was not very profi-

cient in the English language. Appendix 2A.

The Respondents argue that being fired

for speaking ones' national origin langvage

is not a curb on cultural expression or a

hardship if one is able to speak both

languages but Respondents admit that lan-

guage is a national origin characteristic.

The Respondent's analysis begins and ends

with this assumption. Petitioner testified

that it was hard for him to comply with the

rule and that he always slipped. Appendix

3

1-2A. Professor Chavira testified that the

rule would be hard to deal with and even

the District Court stated that the rule was

arbitrary.

Respondents also state that the Court

made it clear that it was not considering a

situation where an employee "inadvertently

slips" into a more familiar tongue or did

not have the ability to speak English or in

which the rule might impose a hardship on

the employees. Even ALTON V. W. GLOOR, the

Defendant who discharged the Petitioner,

testified that he did not think that the

Petitioner was intentionally violating the

English-only-rule on the occasion giving

rise to the Petitioner's discharge. Appen-

dix 2-3A.

The Respondents persist in refusing to

apply applicable legal analysis to this

case. Respondents argue that language is a

condition like pregnancy, i.e., pregnancy

is voluntarily undertaken and absent a

showing that refusal to accommodate the

voluntary condition is a pretext for discrimi-

nation against women there is no duty on

the part of the employer to accommodate.

Res. Brief pp.8-9. Under Griggs v. Duke

Power Co., 401 U.S. 792 (1973), this should

be the end of the analysis and not the

4

beginning. It requires the pregnant em-

ployee to disprove the employer's business

pretext before the employer is required to

show that he did not discriminate. While

pregnancy and even the habit of smoking are

often voluntarily undertaken and _= even

desired conditions, the Spanish language

for many Mexican-Americans, like the Peti-

tioner, is something that is given to them

without their being asked. It is also a

condition about which many Mexican-Americans

are proud as are other language minorities

about their national origin language. As

Professor Chavira ig language is a

badge of ethnic or national origin identity

that is prized by many and without which

those national origin minority persons

which have lost the language are at a

distinct social and perhaps economic disad-

vantage as are Mexican-Americans who are

unable to speak English. Language does not

have to be a "deficiency" to be a protected

characteristic. |

Respondents cite Nashville Gas Co. v.

Satty, 434 U.S. 136 (1977) at page 8 of

their brief for the proposition that Griggs

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

provide a sharp contrast to cases such as

this one where an employer's refusal to

=

‘

5

accommodate employee preference has formed

the basis for discrimination charges. This

is incorrect.

In Satty, the Court, while stating

that the seniority policy appeared to be

neutral in its treatment of male and female

employees, found the policy to be discrimi-

natory when unjustified by business neces-

sity. The Court was very careful to follow

the steps of Griggs and did not leap first

to a determination of whether or not the

plaintiff had dispelled any theoretical

pretextual defenses which the defendant

might have. The Court considered first

whether there was discriminatory impact on

women who became pregnant. Satty, supra.

at p.140. If we compare the seniority rule

in Satty to the Respondent's language rule

in this case the English-only-rule could

appear to be neutral in that it requires

compliance by both Mexican-American and

Anglo-American employees. But just as in

Satty where the policy only affected preg-

nant females, the policy here only affects

Spanish speaking Mexican-Americans.

Also, just as the employer in Satty

apparently argued that the employee was not

injured or harmed by the seniority rule,

the Respondent in this case argues that the

*s

6

Petitioner was not harmed in terms of Title

VII. But, Petitioner was denied specific

employment opportunities because he used

Spanish in violation of the employer's

rule, i.e., employment itself. Even if he

had not been discharged for using Spanish

but had been reprimanded and banished to

the lumber yard as a laborer, the policy

would have adversely affected him because

of his use of Spanish. No Anglo-American

had a chance at this sort of downgrading.

As the Court stated in Satty:

Here by comparison, Petitioner has

not merely refused to extend to women

a benefit that men cannot and do not

receive, but has imposed on women a

substantial burden that men need not

suffer. The distinction between

benefits and burdens is more than

one of semantics... But that holding

does not allow us to read §703(a)(2)

to permit an employer to burden female

employees in such a way as to deprive

them of employment opportunities

because of their different role.

Satty, supra. at 142.

Like the women in Satty, the Mexican-Ameri-

can employees here are treated differently

because of their role as bilingual employees

in spite of the fact that the employer must

have bilingual employees.

After the Court in Satty determined

that the facially neutral seniority policy

. »

7

was discriminatory, the Court took the next

appropriate step in the analysis. The

Court states:

Recognition that Petitioner's facially

neutral senority system does deprive

women of employment opportunities

because of their sex does not end the

inquiry under §703(a)(2) of Title VII.

If a company's business’ necessitates

the adoption of particular leave poli-

cies Title VII does not prohibit the

company from applying these policies to

all leaves of absence including pregnan-

cy leaves Title VII is not violated even

though policies may burden female em-

ployees. Griggs, supra. at 431; Dothard

v. Rawlinson, 433 U.S. 321, 331-332.

But we agreed with the District Court in

this case that since there was no proof

of any business necessity adduced with

respect to the policies in question,

that Court was entitled to "assume no

justification exists". Satty, supra

at 143.

This is the correct analytical proce-

dure. There must be a determination first

of whether or not there is disparate treat-

ment or disparate impact, i.e., discrimina-

tion, before there is any discussion of

whether or not the employer has to accommo-

date or ignore a particular trait or cha-

racteristic.

The Respondents and the panel of the

Fifth Circuit leaped over the first level

of Griggs and focused initially on Peti-

tioner's assumed preference for Spanish.

But the Petitioner was not discharged be-

cause of his preference or because his pri-

mary language was either Spanish or English.

He was discharged because he broke the rule

against speaking English only. Whatever

the Petitioner's day to day preference, the

burden is still on the employer to show

that his rule is justified. Just as it

would make no difference whether a black

employee enjoyed being black or despised

the fact of being black, an employer would

still be required to justify a rule which

placed employment restrictions on black

employees.

If this Court is of the opinion that

an English-only-rule which results in the

discharge of a Mexican-American Spanish

speaker for violation of the rule is not an

injury cognizable under Title VII then

there is no need to go further. If this

Court is of the opinion that there is

potential for unlawful discrimination in

such a rule then the Court should advance

to analyze whether or not the employer

proved a business necessity for the rule.

Petitioner proved more than that he has a

preference for speaking Spanish, if indeed

a preference it can be called. Even if we

deem it a facially neutral rule, Petitioner

9

proved that the English-only-rule impacts

only on i :xican-American employees, the

Petitioner's preference not withstanding.

Many traits or characteristics are

voluntary and preferential to the indivi-

dual such as religion or the decision to

bear children. Employment criteria influ-

enced by national origin characteristics

which affect job opportunities may obviously

be in violation of Title VII or may appear

to be neutral even though questionable such

as a job criteria based on _ language.

"Refusal to accommodate employee preferences

which have been influenced by national

origin" is Respondent's’ syllogism for

"discharging a Mexican-American employee

for speaking Spanish is not national origin

discrimination because the rule is not

discriminatory and language is not a pro-

tected characteristic and even if it is

Respondent haS~a valid business reason for

the rule." Petitioner submits that this

position cannot be maintained under appro-

priate analysis.

Respectfully submitted,

TEXAS RURAL LEGAL AID, INC.

305 E. Jackson, Suite 206

- Harlingen, Texas 78550

(512) 423-3111

LAttorney of Record

CERTIFICATE OF SERVICE

I hereby certify that on this the 12th

day of January 1981, I have mailed three

true and correct copies of the foregoing

Reply to Counsel of Record Neil Norquest,

Ewers,Toothaker, Ewers, Abbott, Talbot,

Hamilton & Jarvis, P. O. Box 3670, McAllen,

Texas 78501, Certified Mail No.: OG30G57_

Return Receipt Requested; Mr. Jerry Nugent,

221 Sixth Street, Austin, Texas 78701,

Certified Mail No.: 0930650

Return Receipt Requested; Mr. William H.

Ng, EEOC, 2401 E. St., N. W. Washington D.

C. Certified Mail No.: O9306597

Return Receipt Requested; Ms. Edna _ €E.

Canino, LULAC, 12631 S.W. 10th Terrace,

Miami, Florida 33184, Certified Mail

No.: 930 d0/ Return Receipt Requested; Mr.

Joel G. Contreras, 800 Capital Mall, Sacra-

mento, California Certified Mail No.:

0730060 Return Receipt Requested,

by depositing said copies in the U. S. Mail

at Harlingen, Texas 78550.

. PAN, A. | GADD

/JAMES A. HERRMANN

1A

EXCERPTS FROM RECORD OF

PROCEEDINGS IN DISTRICT COURT

[43] QUESTION: In terms of your own ability

to comply with the rule, was it difficult

for you?

[43] THE WITNESS HECTOR GARCIA: Yes,

sir, because in order to speak English, I

have to think before what I am going to

say.

[43] QUESTION: Did you feel like you had to

be on your toes to avoid being caught?

[43] ANSWER HECTOR GARCIA: I had to be on

my toes in order not to be caught, and I

had to be on my toes whenever I was speak-

ing English, whenever, I speak English,

Since I can give the wrong impression at

times, because I cannot express myself

fluently at times.

[44] QUESTION: Do you think you could

realisticaNy follow a rule like the one

that--at Gloor Lumber Company ' against

speaking Spanish?

2A

[44] ANSWER HECTOR GARCIA: It is a very

hard rule.

[45] QUESTION: Why do you say it is a hard

rule?

[45] ANSWER HECTOR GARCIA: Because I tend

to fall to speaking Spanish. fThat is why

it is a hard rule to have.

[154] QUESTION BY DEFENSE COUNSEL: OK.

This hypothetical man that Mr. Herrmann is

telling you about is the Plaintiff in this

lawsuit, Mr. Hector Garcia. He is a young

man that went to the 10th grade in high

school, had 6 or 7 jobs within a period of

18 months before he went to work for the

Gloor Lumber Company, these people right

here.

[154] DEFENDANT ANSWER DEFENDANT GLOOR: uh

huh.

[154] QUESTION DEFENSE COUNSEL: , And

admittedly he was not very proficient in

the English language.

[206] QUESTION: Did he (Hector Garcia) ap-

pear at the same time to be intentionally

3A

violating your rule (English-only) in your

presence?

[206] ANSWER DEFENDANT GLOOR: No, sir,

not necessarily, no.

APPENDIX B

This section 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, approximately 28 million persons

in the United States (about 13% of the

total U.S. population) have non-English

language backgrounds and may be

affected by an employer's speak-

English-only rule. The survey identifies

persons with non-English language

backgrounds as persons whose mother

tongue is not English, who normally use

languages other than English, or who

live in households where languages

other than 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 of these language

backgrounds: Spanish, 10.6 million;

Italian, 2.9 million; German, 2.7 million;

French, 1.9 million; Chinese, Japanese,

Korean and Vietnamese, 1.8 million;

Polish, 1.5 million. Approximately 2.4

million persons in the United States do

not speak any English at all.*

An employer’s rule requires

employees to speak at all times,

including during their work breaks and

lunch time, is one example of an

employment practice which

discriminates against persons whose

primary language is not English.

* See U.S. Department of Health, Education and

Welfare, National Center for Education Statistics,

Bulletin 78 B-5, August 22, 1978, “Geographic

Distribution, Nativity, and Age Distribution of

Language Minorities in the United States: Spring

1976"; Waggoner, Dorothy, “Non-English Language

Background Persons: Three U.S. Surveys”, TESOL

Quarterly, vol. 12, No. 3 at 247-262, September, 1978.