Petition for Writ of Certiorari — Garcia v. Spun Steak Co
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In the Supreme Court
OF THE
United States
OCTOBER TERM, 1993
PRISCILLA M. GARCIA, MARICELA BUITRAGO, and
LocaL 115,
UNITED Foop AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO,
Petitioners,
VS.
SPUN STEAK COMPANY,
A California Corporation,
Respondent.
On Petition For a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
EDWARD M. CHEN
Counsel of Record
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA
1663 Mission Street, Suite 460
San Francisco, California 94103
Telephone: (415) 621-2493
CHRISTOPHER Hit WILLIAM H. Orrick, III
THE EMPLOYMENT LAW CENTER, COBLENTZ, CAHEN, MCCABE &
A Project of the Legal Aid Society BREYER
of San Francise> 222 Kearny Street, 7th Floor
1663 Missior Sweet, Suite 400 San Francisco, California 94108
San Francisco. California 94103 Telephone: (415) 391-4800
Telephone: (415) 864-8848
Counsel for Petitioners
BOWNE OF SAN FRANCISCO. INC. « 343 SANSOME ST + SF..CA 94104 + (415) 362-2300
QUESTIONS PRESENTED
1. Did the Ninth Circuit err in striking duwn a
well-reasoned, long-standing, and consistently applied EEOC
Guideline on speak-English-only rules by substituting its ~alicy
views for the EEOC’s expertise and experience?
2. Did the Nine: Circuit err in holding that one’s
ability to comply with a discriminatory term or condition of
employment forecloses a claim under Title VII?
3. Did the Ninth Circuit err in light of Harris v,
Forklift Systems in holding that a plant-wide speak-English-cnly
rule can never create a hostile working environment absent an
accompanying pattern of national origin discrimination or
draconian enforcement?
TABLE OF CONTENTS
Page(s)
GUS Tee PCD 5 he Re ees i
SA OP MU CEE 60SEC ERS PRG ees Vv
\ OPINIONS AND ORDERS BELOW .. 0... cccvccen. l
PSUS oi ea ech ¥ ee ee erk tas ceeeen l
STATUTORY PROVISIONS INVOLVED ............ 2
STATEAGEING GE TG fc tt cece eeeeweweee 2
A. How the Federal Question Was Presented. .. . 2
B. I re es oats oe lee 2
c. The Proceedings Below ............-- 5
REASONS FOR GRANTING THE WRIT ......... -
I, THE COURT SHOULD GRANT
CERTIORARI BECAUSE THE NINTH
CIRCUIT’S REFUSAL TO DEFER TO A
LONGSTANDING AND CONSISTENTLY
APPLIED GUIDELINE OF THE EEOC
CONFLICTS WITH THE DECISIONS OF
Be ee Se ee ee 9
A. The Ninth Circuit Failed to Adhere
to the Analysis of Administrative
Deference Established By
po rr eee re 9
B. Under Either ARAMCO or
Commercial Office Products, The
English-Only Guideline is Entitled
‘Wel EE 6 2 ha ww ees 11
II.
II.
TABLE OF CONTENTS - continued
Page(s)
1. The Guideline Is Entitled
To Deference Under
2. The Guideline Is Entitled
To Deference Under
Commercial Office
THE COURT SHOULD GRANT
CERTIORARI TO RESOLVE A
CONFLICT AMONG THE CIRCUITS
AS TO THE PROPER STANDARD OF
DEFERENCE APPLICABLE TO THE
CS PO ee ee ee 17
THIS COURT SHOULD GRANT
CERTIORARI BECAUSE THE NINTH
CIRCUIT’S REJECTION OF THE
LONGSTANDING EEOC GUIDELINE ON
SPEAK ENGLISH-ONLY RULES
DISRUPTS EFFECTIVE ADMINISTRATION
OF TITLE VII ON AN ISSUE OF GREAT
AND GROWING IMPORTANCE. ...... 19
A. The Guideline Addresses An
Important National Issue Which Is
Certain To Recur With Increasing
real Waele eae ae 6s 0's 19
B. The Ninth Circuit’s Rejection of the
Guideline Will Substantially Impair
the Ability of the EEOC to Enforce
Ts aa heb e446 6 608 ws 21
TABLE OF CONTENTS - continued
Page(s)
IV. THIS COURT SHOULD GRANT
CERTIORARI BECAUSE THE NINTH
CIRCUIT’S HOLDING THAT ONE
CANNOT CLAIM DISCRIMINATION IF
HE OR SHE CAN "READILY COMPLY"
WITH AN OBJECTIONABLE TERM OR
CONDITION IS AT ODDS WITH
FUNDAMENTAL ANTI-DISCRIMINATION
PRINCIPLES AND PROFOUNDLY LIMITS
THE REACH OF TITLE VII. ......... 23
V. | THIS COURT SHOULD GRANT
CERTIORARI AND REVERSE OR, AT A
MINIMUM, REMAND FOR
RECONSIDERATION IN LIGHT OF
HARRIS v, FORKLIFT SYSTEMS
BECAUSE THE NINTH CIRCUIT APPLIED
AN IMPROPER STANDARD FOR
ASSESSING HOSTILE WORKING
ENVIRONMENTS. ......0scccceees 26
eo re ee ere ee ere 29
RE ods Fay ex es Oba See eee la
oo ee ee ee er 20a
SR Er 4 626 e'cates bee e ae eu a keer aes 34a
a ie a 2 wo od ow ee ed Oe 40a
i i RE ECE CT ETE ECT SET ECS 43a
iv
Ve
TABLE OF AUTHORITIES
Page(s)
CASES
I i
Allen vy. Lovejoy,
op ee rr 24
carroll v. Tal ny ere ee
Chicago,
604 F.2d 1078 (7th Cir. 1979),
cert. denied, 445 U.S. 929 (1980)................. 24
Castro v, Beecher
334 F. Supp. 930 (D. Mass. 1971),
aff'd in part, rev’d in part, 459 F.2d 725 (ist Cir. 1972) .. 16
Chevron U.S.A, v. Natural Resources Defense Council,
TGS. GD... : «0. 0sc0ssss se 16, 17, 18
SF 20 1407 Grd Ci 19). r
626 F.2d 659 (9th Cir. 1980).................... 15
1993 WL 492340, fn.4 (10th Cir. 1993) ............. 18
715 F. Supp. 338 (C.D.Cal. 1991) ............ 20
499 U.S. 244(1991) ......... -... 9, 10, 11, 12, 17, 18
Page(s)
TABLE OF AUTHORITIES - continued
a 9
te & 9, 10, 11, 15, 17, 18
EEQC v, Sage Realty Corp.,
Sar F. Saee. FPP G.D.N.Y. 1981)... cee 24
0 OS De 7,9, 10, 11, 15
Estate of Reynolds v, Martin,
985 F.2d 470 (9th Cir. 1993)...............00004 18
Garcia, et al. v. Spun Steak Co,,
998 F.2d 1480 (9th Cir. 1993) . 1, 7, 8, 10, 16, 23, 24, 25, 26
Garcia, et al. v. Spun Steak Co,, No. 91-16733
rehearing denied, slip op. 14479,
1993 U.S. App. LEXIS 33530 .......... 1, 8, 22, 24, 25
GS 9, 17, 23
Griggs v. Duke Power Co.,
ED twee c ce eveeueees 9 18
Guti Municipal Court.
838 F.2d 1031 (9th Cir. 1988),
rehearing en banc denied, 861 F.2d 1187 (1988),
vacated as moot, 490 U.S. 1016 (1989) .......... 14, 20
__US. _, 114 S.Ct. 367,
126 L. Ed. 2d 295 (1993) ............... 9, 26, 27, 28
Page(s)
TABLE OF AUTHORITIES - continued
292 U.S. 614 (1934) ...... cae ee eee kee 27
Hernandez v. New York,
__ U.S. __ 111 S.Ct. 1859,
114 L. Ed. 2d 395 (1991) ................. 13, 14, 15
Hernandez v, Texas,
Be Ws PD on ven cweeccovccvecceseuean 15
fac} Richards Medical Co..
961 F.2d 575 (6th Cir. 1992).................... 18
John Nuveen & Co, v, Sandezs,
MP PE occ tee wwecescscue nuns 28
813 F.2d 1406 (9th Cir. 1987)................ 20, 25
Kirwan v, Romano,
GED Wie PT 5 ccc ccc ccc ccceccceepeen 28
Laffey v, Northwest Airlines, Inc.,
567 F.2d 429 (D.C. Cir. 1976) .................. 24
Laing vy. ULS.,
Oe ee TE og hk ovo ee cv ed eee emda een. 21
Lau v, Nichols,
a 15
nts,
Pe ee os oc cn we hoe edec nae. 24
477 U.S. 57 (1986) ........ EEE an Nob Pets 27
Page(s)
TABLE OF AUTHORITIES - continued
Mill Beneficial M —a
977 F.2d 834 (3d Cir. 1992) ................00.. 18
Mi Mining C — Wood Co..
IS eee ae ae ee nee ree 19
Nashville Gas Co, vy. Satty >
sn es be a 23
Philbi G | Electric Capital / bile | “a
pe ke, Le | ee 18
Reich v. Parker Fire P ton District
992 F.2d 1023 (10th Cir. 1993) .................. 18
Rogers v, EEOC,
454 F.2d 234 (Sth Cir. 1971), cert. denied,
cs Ce eucceccceecns 11, 26
Rothensies v, Electric Battery Co.,
sr eh ae ke 21
Rowe vy. Sullivan >
967 F.2d 186 th Cir. 1992)... wc cc cee 18
Saucedo v. Brothers Well Service ’
464 F. Supp. 919 (S.D. Tex. 1979) ............. 20, 21
Saxbe v, Washington Post Co. >
ee a viele ewewe 19
Silver v. KCA, Inc, >
Ee a 11
Skid Swift & Co.
ere 17, 23
Vili
Page(s)
TABLE OF AUTHORITIES - continued
sara date am) ee ee ee, 18
MAUR SUID) occ ccccccccccccceaceees ‘6
Ty ye 7
Voeel v.. Cley of C3 ,
959 F.2d 594 (6th Cir. 1992), cert. denied, U.S. _,
as cane ee 6: glee Te
STATUTES
RT RSet ew cues 1
ss ts he wa ee Pe 2
eee CTE a oe re ee 1
Civil Rights Act of 1964,
ps oa ao a ee es ee ee passim
RULES OF THE SUPREME COURT
OF THE UNITED STATES
i a re 8 el 1
ADMINISTRATIVE AUTHORITIES
45 Fed. Reg. 85632
I Ss St got 6 tee woe oa 12, 19
Page(s)
TABLE OF AUTHORITIES - continued
EEOC Guidelines on Discrimination
Because Of National Origin,
BP ae ee ED 6 or eo ob eee racaees passim
EEOC Compliance Manual, Vol. ff ................ 12
EEOC Dec. AU7-2-88 (1967) (unreported) .......... 12
EEOC Dec. 71-446 (CCH),
Pas. Gira. o Pee Ge CEaT CEP OEe 60 00:6 be EN ees 12
EEOC Dec. 72-0281 (CCH),
Para. 6293, 1971 LEXIS 8 (1971) .............-4.. 12
EEOC Dec. 73-479,
Sete es TED cc ciceveeevescéecean
EEOC Dec. 81-25, 27 FEP 1820 (1981) ............. 21
EEOC Dec. 83-7, 31 FEP 1861 (1983).............. 21
OTHER AUTHORITIES
jie 2 |). Be eee 15
137 Cong. Rec. $15437 - $15489
(daily ed. Oct. 30, 1991)
(remarks of Sens. DeConcini and Kenned*) .......... 16
Comment, "Native-Born Acadians and the Equality Ideal,"
2) ee A 14, 16
Note, "A Trait-Based Approach to National Origin Claims
Under Title VII,”
Pe et is ee DE REED 6 0.4.0 0.46 4 0 we wieie eee 15, 16, 26
a
Page(s)
TABLE OF AUTHORITIES - continued
Note, "English-Only Rules, and ‘Innocent’ Employers:
Clarifying National Origin Discrimination and Disparate
Impact Theory Under Title VII,"
74 Minn. L. Rey. 387 (1989).........--0 eevee:
Perea, "Demography and Distrust: An Essay on American
Languages, Cultural Pluralism, and Official English,"
77 Minn. L. Rey. 269 (1992)... 1... ee eee eee eee
Gall Research, Statistical Record of Asian Americans
128 (S. Gall & T. Gall eds., 1993) ..........54.--
Numbers and Needs, Ethnic and Linguistic Minorities
in the United States, (July, 1993)
22 & errr yr er Tree eee ere
O’Hare, William P., “America’s Minorities --
the Demographics of Diversity," Population Bulletin,
Vol. 47, No. 4 (Washington, D.C.: Population Reference
Boren, Ens., Wes. TRAD cc ccccccsccesccsevess
Population Division, Bureau of the Census,
Pub. No. CPH-L-133, “Language Spoken at Home and
Ability to Speak English for the United States,
Regions and States" (1990) ......... 5c eee eens
Snow, Catherine E. and Hakuta, Kenji,
"The Costs of Monolingualism” in Crawford, ed.,
Language Loyalties: A Source Book on the Official
Declaration of Guadalupe Valdés, Ph.D., in Opposition
to Defendant’s Motion for Summary Judgment, filed
September 20, 1991 in Garcia, et al. v. Spun Steak
Co,, U.S.D.C., N.D. Cal., No. C-91-1949 RHS, p.3
. 20
. 6, 13
Page(s)
TABLE OF AUTHORITIES - continued
NEWS ARTICLES
"A Month of Rancor,” Sacramento Bee,
July 19, 1993, at Al4 ....... at aPC 20
Burleson, "Taco Bell Forms Policy on Language,” The
ee ee ee 20
Dawson, "English Only at Coffee Break,” Calgary Herald,
ae tak wig Sie .0 es 9 20
"Foreign Languages - How Would You Say ‘Good Law’ in
Tagalog?” Seattle Times, September 24, 1990, atA6 ..... 20
Henry, "Fighting Words," Los Angeles Times,
a A ee ee 21
"Hispanic Rips English-only Hospital Policy,"
Houston Chronicle, July 3, 1992, atA44 ............ 20
"In Court: A Summary of Southern California-Related
Business Litigation Developments During the Past Week,"
Los Angeles Times, June 18, 1990, atD2............ 20
"In Court,” Los Angeles Times,
SO a ED cee ewe erste re teases 20
Ingwerson, "English-Only Laws: How Broad?"
Christian Science Monitor, November 29, 1988, at3 ..... 20
McLeod, “Census Finds Many Speak Foreign Language
at Home,” San Francisco Chronicle, p. A3
Se rae a ea ob wh ad) 6 ee 2% 19
Page(s)
TABLE OF AUTHORITIES - continued
Mydans, "Pressure for English-Only Job Rules Stirring
a Sharp Debate Across U.S." Los Angeles Times,
June 18, 1990, at D2... 10... eee ee ee eens 20
Nichols, "The English-Only Movement Legitimizes Attacks
on Brotherhood and Tolerance,” Mah AAT,
February 19, 1989, PartS at5 2... 0. eee eee eres 20
Perea, "Speaking Spanish Shouldn't Get You Fired,"
Legal Times, September 17, 1990, at26......---+---- 20
"Salvation Army Worker Files Discrimination Suit,”
Washington Times, December 21, 1989, ) ae ule
Sanchez, Howe, "Three Employees Allege Bias On Language;
Bank Said to Have Issued Ban on Speaking Spanish,”
Washington Post, February 23, 1993, atBl.........-. 20
"Suit Challenges English-only Rule at Vista Firm,”
Los Angeles Times, August 23, 1991, at ) oee re 20
Yang, "In Any Language, It’s Unfair," Business Week,
June 21, 1993, at 110-111 2... 1. ee ee es 20
Petitioners Priscilla M. Garcia, Maricela Buitrago, and
Local 115, United Food and Commercial Workers International
Union, AFL-CIO, respectfully petition for a writ of certiorari to
review the judgment and opinion of the United States Court of
Appeals for the Ninth Circuit in this case.
OPINIONS AND ORDERS BELOW
The opinion of the United States Court of Appeals for the
Ninth Circuit, and the dissent therefrom of Circuit Judge Robert
Boochever, is reported at Garcia, et al. v, Spun Steak Co, ("Spun
Steak"), 998 F.2d 1480 (9th Cir. 1993) and reproduced in
Appendix A, infra. Petitioners sought rehearing en banc. Over
Judge Boochever’s dissent, the panel denied the petition. The full
court was advised of the suggestion for rehearing on en banc, but
the matter failed to receive a majority of the votes of the non
recused active judges. Circuit Judge Stephen Reinhardt dissented
from the denial of rehearing en banc. The orders denying the
petition and the dissent therefrom, filed October 29, 1993, are
reported at Spun Steak, No. 91-16733, slip op. 14479, 1993 U.S.
App. LEXIS 33530 (9th Cir. 1993) and are reproduced in
Appendix B, infra. The unpublished order and judgment granting
summary judgment to petitioners in the United States District
Court for the Northern District of California (Schnacke, Robert
H., J.) are reproduced in Appendix C, infra.
JURISDICTION
The jurisdiction of this Court to review the judgment of the
United States Court of Appeals for the Ninth Circuit by writ of
certiorari is invoked under 28 U.S.C. § 1254(1). On October 29,
1993, the Court of Appeals denied a timely petition for rehearing
and suggestion for rehearing en banc of its opinion filed July 16,
1993, which reversed an order of the United States District Court
for the Northern District of California granting petitioners’ motion
for summary judgment. This petition was timely filed within
ninety days of that date as required by 28 U.S.C. § 2101(c); Sup.
Ct. R. 12, 13.
ee eres ae aa OE a TT a
STATUTORY PROVISIONS INVOLVED
The Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, and the Guidelines on Discrimination Because Of National
Origin of the Equal Employment Opportunity Commission, 29
C.F.R. §§ 1606.1-1606.8, are reproduced in relevant parts in
Appendix D, infra.
STATEMENT OF THE CASE
A. How the Federal Question Was Presented.
The jurisdiction of the district court was invoked under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e, et seg., and under 28 U.S.C. § 1331.
B. Statement of Facts.
Priscilla M. Garcia worked for 19 years as a production
line worker for Spun Steak Company ("Spun"), a meat processing
firm located in South San Francisco, California. Maricela
Buitrago has worked for Spun for nearly 10 years, also as a
production line worker. As production line workers, Garcia and
Buitrago stand before a conveyor belt, remove poultry or other
meat products from the belt and place the product into cases or
trays for resale. Their work is done individually and not in teams.
They have no contact with the public.
Local 115 of the United Food and Commercial Workers
International Union, AFL-CIO ("Local 115"),' is the collective
bargaining agent for Garcia, Buitrago, and the other production
line workers at Spun.
Spun employs approximately 30 workers, the majority of
whom are Latino and Spanish-speaking. Virtually all of the
Spanish speakers are Latino. Some speak only Spanish. While
many are bilingual in Spanish and English, Spanish is the primary
native language for most, like Buitrago.
: Since the filing of this action, Local 115 has been redesignated as Local
101.
Until the speak English-only rule at issue was imposed by
Spun, Latino employees freely spoke Spanish to their co-workers
during work hours. Spun concedes that no employee has ever
been injured at its plant because Spanish was spoken. Nor is there
any documented record of a decrease in worker productivity as a
result of employees speaking Spanish.
The use of the Spanish language amongst Spun’s Latino
workers has both practical and subjective importance. Garcia is
bilingual in Spanish and English. Buitrago is also bilingual, but is
dominant in Spanish and is more proficient in her native Spanish
than in English. Buitrago explained the importance of her native
language:
I am of Salvadoran national origin. My primary
language is Spanish. I am able to converse in
English as well; however, | am more proficient in
Spanish. The ability to speak Spanish is an
important part of my ethnic and cultural identity.
Garcia explained that "depending upon the people with whom I am
working, I will either use English or Spanish, whichever is more
efficient to communicate with them until the problem is resolved.
Most of the conversation that occurs is of a casual, non-work-
related nature in both English and Spanish.”
On October 2, 1990, Spun imposed a plant-wide policy
requiring all of its workers to speak only English while at work.
The rule was purportedly imposed because three employees had
accused Garcia and Buitrago of making offensive remarks about
them in Spanish (as well as in English).
At the same time, Spun initiated a policy prohibiting the
use of offensive speech at work (in any language). Significantly,
2 Ironically, these allegations arose in the course of an investigation of a
claim of sexual harassment made by Buitrago. Buitrago complained to the owner
about the sexually offensive conduct of a fellow employee. In response, the
employee accused Buitrago of calling him ethnically offensive names in English
and Spanish. Rather than further investigating the claim of sexual harassment,
the company conducted an investigation into the allegations of offensive speech.
Two or three other employees thereupon accused Buitrago of making other
offensive remarks.
the latter policy proved effective; it has not been violated since its
issuance. In addition, Spun physically separated Garcia and
Buitrago in their work assignments, thus minimizing conversation
between them while on duty. Despite the effectiveness of these
narrowly tailored measures, Spun insisted on the English-only rule,
a rule which applied to al] conversations by ali employees
irrespective of the content of the conversation.
In the months following, Garcia and Buitrago were
formally reprimanded on several occasions for speaking Spanish to
other co-workers. Buitrago described an instance when the rule
was enforced:
On November 30, 1990, a production problem
occurred further up the line. When the steaks
reached our area, they were stuck together and
could not be packaged in that form. My
coworkers and I discussed the problem in Spanish.
At that time, Kenneth Bertelsen [the president of
Spun and one of its owners] yelled at me in front
of my coworkers and chastised me for using
Spanish. When I complained that his treatment
was unfair, he jabbed at me with his finger and
told me to "go back to your own country” if |
wanted to speak Spanish. ...
Garcia described another incident:
On June 5, 1991, the day prior to the EEOC’s
scheduled visit, Kenneth Bertelsen reprimanded me
for using Spanish in a casual conversation with a
co-worker, Connie Salazar, whose English ability
is very limited. He yelled at me that "this is my
house, and I only want English here,” causing me
to feel nervous and stressed.
On May 6, 1991, Garcia, Buitrago, and Local 115 filed
charges of national origin discrimination with the Equal
Employment Opportunity Commission ("EEOC"). The EEOC
subsequently found there was reasonable cause to believe that
Spun’s English-only policy and retaliatory actions against Garcia
4
and Buitrago violated Title VII of the Civil Rights Act of 1964.
Spun refused to conciliate the charges.
Cc. The Proceedings Below.
On June 26, 1991, Garcia, Buitrago and Local 115 filed a
complaint in the U.S. District Court alleging, inter alia, that
Spun’s English-only policy constituted national origin
discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2 under disparate impact theory.’
Plaintiffs relied in the first instance upon § 1606.7 of the
EEOC Guidelines on Discrimination Because of National Origin,
29 C.F.R. § 1606.1, ef seg. to establish their prima facie case.
Under § 1606.7, entitled “Speak-English-only rules" (the
"Guideline" ), a rule requiring that employees speak only in English
must be shown by the employer to be justified by business
necessity.* The Guideline, in effect, presumes that a speak
English-only rule — by prohibiting employees from speaking their
primary language or the language they speak most comfortably,
and thereby creating an atmosphere of inferiority, isolation and
intimidation — constitutes a burdensome term and condition of
employment which has a disparate adverse impact upon national
> The complaint also alleged sexual harassment of Buitrago, various
pendent state claims, including a claim of employment discrimination on the basis
of national origin under cognate provisions of California state law, and various
tort claims. The District Court refused to assert pendent jurisdiction over tie
state tort law claims, and dismissed without prejudice Buitrago’s sexual
harassment claim.
: Section 1606.7(a) states, “A rule requiring employees to speak only
English at all times in the workplace is a burdensome term and condition of
employment. The primary language of an individual is often an essential nationai
origin characteristic. Prohibiting employees at all times, in the workplace, from
speaking their primary language or the language 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 will presume that such a rule violates
Title VII and will closely scrutinize it." Section 1606.7(b) states, “An employer
may have a rule requiring that employees speak only in English at certain umes
where the employer can show that the rule is justified by business necessity.”
5
Origin minorities.
Plaintiffs additionally argued that irrespective of the
Guideline, Spun’s English-only rule in fact had an adverse impact
upon its Latino workers. Plaintiffs presented percipient witness
testimony and expert evidence that the rule impaired expression
and communication between Latino employees whose native and
dominant language is Spanish, as well as that of those who are
fully bilingual. The evidence also described the importance of
language to ethnic and cultural identity, particularly within the
Latino community.’
In response to plaintiffs’ prima facie case, Spun argued the
English-only rule was necessary to prevent offensive speech by
Spanish speakers. This was despite the fact that the allegations of
the misuse of Spanish concerned only two employees, that the
allegedly offensive speech had taken place in English as well as
Spanish, and that any problem was effectively remedied by the
implementation of a rule prohibiting the use of offensive remarks
in any language against co-workers. Spun also asserted that its
English-only rule was necessary for safety reasons even though
Spanish had been spoken for years without incident and production
workers have little need to converse in teams. Spun presented no
evidence that casual conversations between workers in their
primary language creates a greater safety problem when that
primary language is Spanish rather than English.
The parties filed cross-motions for summary judgment. On
October 4, 1991, the District Court granted summary judgment in
’ Guadalupe Valdés, Professor of Education at the Graduate School of
Education at the University of California, Berkeley, explained:
[S}tudies of the relationship between Spanish language and ethnic
identity among Hispanics have clearly shown that Hispanics view
lariguage as an intrinsic aspect of their ethnicity. Denying individuals
from those communities the right to use their primary language or the
native language of their ancestors deprives them of their right to affirm
their culture, express their identity, and inevitably demeans their ethnic
heritage.
Declaration of Guadalupe Valdés, Ph.D., in Opposition to Defendant's Motion
for Summary Judgment, filed September 20, 1991 in Garcia, et al. v. Spun Steak
Co. U.S.D.C., N.D. Cal., No. C-91-1949 RHS, p.3.
6
favor of plaintiffs, finding that Spun’s English-only rule had a
discriminatory impact upon Latino workers which could not be
justified by business necessity, and thus violated Title VII.
Describing the English-only rule as overbroad and unnecessary, the
District Court likened it to “hitting a flea with a sledge hammer."
Spun timely filed a notice of appeal to the United States
Court of Appeals for the Ninth Circuit. The EEOC filed an
amicus curiae brief in support of Garcia, Buitrago and Local 115,
as it did in the District Court, and participated in oral argument.
The matter was argued aud submitted on November 3, 1992. In
its opinion on July 16, 1993, the Ninth Circuit, in a two-to-one
decision, reversed the District Court’s grant of summary judgment,
and ordered that summary jud,ment be entered in defendant's
favor except as to those employees who spoke no English.
Acknowledging that the effect of the rule was felt
disproportionately by those of Hispanic origin, the Ninth Circuit
held the policy had no “significant” adverse effect upon bilingual
Hispanic employees, rejecting plaintiffs’ prima facie showing as a
matter of law. The court found that the English-only rule did not
impair expression and communication, even by those whose
primary language is Spanish, because bilingual employees with
even minimal English proficiency “can readily comply with the
English-only rule and still enjoy the privilege of speaking on the
job, . . ." Spun Steak, 998 F.2d at 1487. According to the
Court, the English-only rule “merely inconvenienced” bilingual
employees. Spun Steak, 998 F.2d at 1488.
Furthermore, the Ninth Circuit overturned the Guideline,
noting that deference is not afforded to the EEOC’s “administrative
construction of a statute where there are ‘compelling indications
that it is wrong."” Spun Steak, 998 F.2d at 1489, quoting
Espinoza v. Farah Mfg. Co,, Inc., 414 U.S. 86, 94 (1973).
However, unable to cite anything in the specific language of Title
VII or legislative history constituting such a “compelling
indication,” the Ninth Circuit reasoned conclusorily that the
Guideline’s presumption of a disparate impact contravened the
general balance struck by Congress between “preventing
disc,imination and preserving the independence of the employer."
Spun Steak, 998 F.2d at 1490.
Judge Boochever dissented from the panel majority's
rejection of the Guideline, praierting to defer to the EEOC’s
7
expertise in its conclusion that English-only rules may "create an
atmosphere of inferiority, isolation and intimidation based on
_ national origin which could result in a discriminatory working
environment.” Spun Steak, 998 F.2d at 1490 (Boochever, J.,
dissenting in part), quoting 29 C.F.R. § 1606.7(a).
On July 30, 1993, plaintiffs timely filed a petition for
rehearing and suggestion for rehearing en banc. On October 29,
1993, the Ninth Circuit issued an order denying the petition for
rehearing over Judge Boochever’s dissent. The suggestion for
rehearing en banc was also denied. Judge Reinhardt filed a
lengthy dissent therefrom (jee Appendix B), concluding that the
decision
disrupts the uniform national application of an
important EEOC Guideline, drastically handicaps
the agency’s ability to adopt other Guidelines,
distorts or ignores Ninth Circuit caselaw in a
highly sensitive area, and allows two of its judges
to substitute their policy views regarding the
subject of national-origin discrimination for the
EEOC’s experienced, reasoned and expert
judgment.
Garcia et al. v. Spun Steak, No. 91-16733, slip op. 14479, 14492-
14493, 1993 U.S. App. LEXIS 33530 (9th Cir. 1993) (Reinhardt,
J., dissenting from denial of rehearing en banc).
REASONS FOR GRANTING THE WRIT
Certiorari is warranted because of the Ninth Circuit's
erroneous refusal, contrary to this Court’s precedents, to defer to
a longstanding Guideline of the EEOC relating to “speak-English-
only” rules. This Court’s guidance is also necessary to resolve the
conflict between the circuits on the deference question -- a conflict
which gave rise to the error in question ~— and to ensure the
effective administration of Title VII on an issue of growing
national importance. Furthermore, the court below radically
rewrites established Title VII jurisprudence so as to legitimate al!
employer practices, no matter how discriminatory, so long as an
employee can “readily comply” therewith. Finally, this Court
should grant certiorari to correct the Ninth Circuit’s misconception
of “hostile working environment” analysis in light of Harris v.
Forklift Systems, U.S. __, 114. S.Ct. 367, 126 L.Ed.2d 295
(1993).
I. THE COURT SHOULD GRANT CERTIORARI
BECAUSE THE NINTH CIRCUIT’S REFUSAL TO
DEFER TO A LONGSTANDING AND
CONSISTENTLY APPLIED GUIDELINE OF THE
EEOC CONFLICTS WITH THE DECISIONS OF
THIS COURT.
A. The Ninth Circuit Failed to Adhere to the
Analysis of Administrative Deference
Established By This Court.
It is axiomatic that guidelines of the EEOC “constitute ‘the
administrative interpretation of [Title VII] by the enforcing
agency,’ and consequently they are ‘entitled to great deference.’”
, 422 U.S. 405, 431 (1975),
quoting Griggs v. Duke Power Co,, 401 U.S. 424, 433-434
(1971). The standard relating to the degree of deference due has
been stated variously by the Court. See, ¢.g., Espinoza v. Farah
Mfg. Co. ("Espinoza"), 414 U.S. 86, 94 (1973) (EEOC guideline
entitled to deference unless “there are compelling indications that
it is wrong"); EEOC v, Associated Dry Goods Corp., 449 U.S.
590, 600 n.17 (1981) (particular deference due to contemporaneous
and stable construction by EEOC); EEOC v, Commercial Office
Products Co, ("Commercial Office Products”), 486 U.S. 107, 1!5
(1988) ("EEOC’s interpretation of Title VII, for which it has
primary enforcement responsibility, need not be the best one by
grammatical or any other standards. Rather, the EEOC’s
interpretation of ambiguous language need only be reasonable to
be entitled to deference"); EEOC y, Arabian American Oil Co,
(“ARAMCOQ"), 499 U.S. 244, 257 (1991) (deference to EEOC
interpretation depends upon the “thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those actors which give
it power to persuade . . ."), quoting General Electric Co, v,
Gilbert ("Gilbert"), 429 U. S. 125, 142 (1976).
9
In rejecting the Guideline herein, the Ninth Circuit failed
to adhere to either of the court’s most recent decisions on the
subject, ARAMCO and Commercial Office Products. The panel
majority disregarded virtually every factor articulated by this Court
as germane to the analysis of deference to an EEOC Guideline.
The court did not find that the Guideline conflicted with the plain
language of Title VII,° nor did it follow a “long-standing
principle of American law" supplying a rule of statutory
construction contrary to the result reached by the EEOC. (Cf.
ARAMCO, 499 U.S. at 248. It did not find that the Guideline
conflicted with specific Congressional intent on the subject as
found in the legislative history or related statutes, as it conceded
there was none.’ Cf. Espinoza, supra, 414 U.S. at 91. Nor did
it find that the position embodied in the Guideline was
"inconsistent with earlier and later pronouncements” of the EEOC,
or that the EEOC’s consideration of the matter lacked
"thoroughness". ARAMCO, supra, 499 U.S. at 257.
Instead, the Ninth Circuit simply stated that "Congress
intended a balance be struck in preventing discrimination and
preserving the independence of the employer,” citing in support the
general remark made on the House floor during the debate on Title
VII by a single Representative that:
management prerogatives, and union freedoms are
to be left undisturbed to the greatest extent
possible. Internal affairs of employers and labor
Organizations must not be interfered with except to
the limited extent that correction is required in
discrimination practices.
Spun Steak, 998 F.2d at 1489-90 (Statement of William M.
McCulloch, et al., H.R.Rep. No. 914, 88 Cong., 2d Sess (1964)).
Based solely on this general remark -- hardly reflective of “an
. It merely found that "[nJothing in the plain language of section 703(a)(1)
[of Title V°I] supports EEOC’s English-only rule Guideline.” Spun Steak, 998
F.2d at 1429.
7 "Indeed, nowhere in the legislative history is there a discussion of
English-only policies at all.” Spun Steak, 998 F.2d at 1490.
10
obvious Congressional intent" to the contrary, Espinoza, 414 U.S.
at 94 — the Ninth Circuit leapt to the conclusory holding that the
Guideline’s presumption of adverse impact somehow contravenes
that balance.
This Court has never relied on such grossly general, let
alone nonexistent, expressions of legislative intent to reject
wholesale an established Guideline of the EEOC. In contrast to
the careful treatment of deference that has characterized this
Court’s decisions, the Ninth Circuit’s analysis is wholly
standardless, anchored to nothing in the specific language,
structure, or legislative history of Title VII. The panel majority’s
reasoning gives carte blanche to any federal court to reject any
guideline of the EEOC - or that of any other agency — through
the exercise of undisciplined judicial fiat.
B. Under Either ARAMCO or Commercial Office
Products, The English-Only Guideline Is
Entitled To Deference.
Had the Ninth Circuit properly applied this Court’s most
recent pronouncements in either ARAMCO or Commercial Office
Products, it would have deferred to the English-only Guideline.
1. ideli itl fi
ARAMCO.
The Guideline more than satisfies the test for deference
under the criteria articulated in ARAMCO. First, there is great
"thoroughness evident in its consideration." ARAMCO, supra,
499 U.S. at 257. In 1980, the EEOC engaged in a comprehensive
review and revision of its Guidelines on Discrimination Because of
National Origin. As part of that revision, the proposed Guideline
on Speak-English-only rules was subject to public notice and
* Its cramped interpretation of Title VII contravenes the well-established
principle that Title VII "must be construed liberally in order to effect the broad
remedial purpose of Congress ‘to eliminate the inconvenience, unfairness, and
humiliation of ethnic discrimination."” Silver vy. KCA, Inc., 586 F.2d 138, 141
(9th Cir. 1978), guoting Rogers v, REOC, 454 F.2d 234, 238 (Sth Cir. 1971),
cert. denied, 406 U.S. 957 (1972).
11
i
comment prior to its issuance. 45 Fed. Reg. 85632 (December 29,
1980) (to be codified at 29 C.F.R. pt. 1606). During the comment
period, the Commission received and considered approximately
250 comments from individuals, civil rights organizations, business
associations, educational institutions, and public and private
employers. Many of them focused specifically on the English-only
Guideline. [bid.
The thoroughness of the EEOC’s consideration of the issue
is underscored by the fact that, subsequent to its issuance of the
Guideline, then-EEOC Chairman Clarence Thomas issued a
comprehensive compliance manual to facilitate its enforcement.
See “EEOC Compliance Manual, Vol. I], EEOC Order 915:
Section 623, Speak-English Only Rules and Other Language
Policies” (attached as Exhibit C to Appellees’ Brief to the Ninth
Circuit). The Compliance Manual provided thorough analysis as
to the particular circumstances under which English-only rules are
permissible.
Second, the Guideline is "consisten[t] with earlier and later
pronouncements.” Since 1967, shortly after the passage of Title
VII, the EEOC has taken the position in its administrative
decisions, as well as its Guideline and Compliance Manual, that
English-only rules have a discriminatory impact on national origin
minorities and thus must be justified by business necessity.”
Finally, the EEOC’s reasoning that English-only rules in
particular have a disparate adverse impact upon national origin
minorities is eminently “valid.” ARAMCO, supra, 499 U.S. at
257. English-only rules disproportionately affect national origin
% In an unreported decision in 1967, the Commission found that such
rules may constitute a form of national origin discrimination. EEOC Dec. AU7-
2-88 (1967) (unreported). In a subsequent reported decision, the Commission
found an English-only rule “has the obvious and clear effect of denying
Respondent's Spanish surnamed American employees (as well as other minority
groups, if any there be), who converse in a familiar language with which they are
most comfortable,” and thus violates Title VII unless a business necessity is
shown for the policy. EEOC Dec. 71-446 (CCH) Para. 6173, 2 FEP Cases
1127, 1128 (1970). The Commission's position that English-only rules have a
discriminatory impact upon national origin minority workers was reaffirmed in
subsequent decisions. See EEOC Dec. 72-0281 (CCH) Para. 6293, 1971 EEOC
LEXIS 8 (1971); EEOC Dec. 73-479, 1973 EEOC LEXIS 3, 41 (1973).
12
minorities.” Indeed, unlike magy facially neutral devices
challenged under disparate impact thewry (such as the requirement
of a high school diploma or a minimum height), English-only rules
burden national origin minorities almost exclusively and thus
arguably facially discriminate on the basis of national origin."
The Guideline reasonably finds such rules are burdensome
for two independently sufficient reasons. First, by definition,
English-only rules disadvantage national origin minority workers
by preventing them “from speaking their primary language or the
language they speak most comfortably,” as the EEOC properly
found. 29 C.F.R. § 1606.7(a). It consigns these minorities to a
second language in which they are less articulate, their vocabulary
is limited, and their ability to express ideas, concepts, and feelings
are significantly restricted. Fully bilingual individuals are also
adversely affected.'"? In Hernandez v. New York, U.S. _,
111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), Justice Kennedy, writing
for the Court, observed:
0 Latinos, for instance, comprise 97% of those individuals who usually
speak Spanish. Perea, “"Demogrephy and Distrust: An Essay on American
Languages, Cultural Pluralism, and Official English,” 77 Minn. L. Rev. 269, 359
(1992). For Asian Americans the correlation between language and ethnicity is
also very high. As of 1989, 72.5% of Chinese Americans speak a language other
than English (presumably their native language) at home. Comparable figures for
other Asian American groups are Cambodian (81.9%), Vietnamese (80.7%),
Laotian (77.4%), Thai (72.5%), Korean (69.7%), Filipino (59.9%), Indian
(55.3%), and Japanese (40.5%). Gall Research, Statistical Record of Asian
Americans 128 (S. Gall & T. Gall eds., 1993).
‘| See Perea, supra, 77 Minn. L. Rev. at 357-360.
"Two languages together constitute the linguistic repertoire of bilinguals, and
“code switching” (L.¢, changing languages in the course of a conversation) has
expressive value, occurring for instance to signal greater intimacy or reference
to values associated to ethnic language, to reflect a change in role relationship
with regard to one another, or as a metaphoric device by means of which a
speaker gives emphasis to a particular segment of his/her speech. Declaration of
Guadalupe Valdés, Ph.D., supra, pp. 3-4. Moreover, “[flluent bilinguals often
report having different personalities in their two languages, and studies have
suggested that bilinguals show different responses in projective psychological tests
. depending on which language is used." Snow, Catherine E. and Hakuta,
Kenji, "The Costs of Monolingualism” in Crawford, ed.,
A Source Book on the Official English Controversy (1992), pp. 388-89.
13
Language permits an individual to express both a
personal identity and membership in a community,
and those who share a common language may
interact in ways more intimate than those without
this bond.
Hernandez, 111 S.Ct at 1872.
Second, English-only rules tend to “create an atmosphere
of inferiority, isolation and intimidation based on national origin
which could result in a discriminatory working environment.” 29
C.F.R. § 1606.7(a). A rule prohibiting ethnic minority workers
from conversing with their co-workers in their native tongue
directly suppresses a fundamental aspect of ethnicity and national
origin identity.
Although an individual may learn English and
become assimilated into American society, his
primary language remains an important link to his
ethnic culture and identity. The primary language
not only conveys certain concepts, but is itself an
affirmation of the culture.
Gutierrez v, Municipal Court ("Gutierrez") 838 F.2d 1031, 1039
(9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989) (citations
omitted). As one commentator has noted: “Language is the
lifeblood of every ethnic group. To economically and
psychologically penalize a person for practicing his native tongue
is to strike at the core of ethnicity." Comment, “Native-Born
Acadians and the Equality Ideal,” 46 La. L. Rey. 1151, 1167
(1986). The Guideline is particularly reasonable since a broad
company-wide rule is “sweeping in nature and has a direct effect
on the general atmosphere and environment of the workplace."
Gutierrez, supra, 838 F.2d at 1041.
14
2. The Guideline Is Entitled To Deference Under
Commercial Office Products.
The English-only Guideline constitutes a “reasonable”
interpretation of “ambiguous” statutory language and is thus
entitled to deference under Commercial Office Products, supra.
The scope of Title VII’s injunction against discrimination on the
basis of “national origin"” is “sufficient[ly] ambigu[ous] . . . to
warrant deference to the agency’s construction.” Commercial
Office Products, 486 U.S. at 125 (O’Connor, J., concurring in
part). National origin is often identified by a variety of traits such
as surname, given name, cultural customs, or linguistic
characteristics. Cf. Hernandez y, Texas, 347 U.S. 475, 480 n.12
(1954) (Spanish surname indicative of national origin).
This Court and other courts and commentators have
specifically noted or assumed that language is a key identifier of
national origin.'* “The primary language of an individual is often
'' Congress left the term “national origin” undefined:
The only direct definition given the phrase “national origin” is the
following remark made on the floor of the House of Representatives by
Congressman Roosevelt, Chairman of the House Subcommittee which
reported the bill: “It means the country from which you or your
forebears came... . You may come from Poland, Czechoslovakia,
England, France, or any other country.” 110 Cong. Rec. 2549 (1964).
Espinoza, supra, 414 U.S. at 89. The term “national origin” was used
infrequently prior to the adoption of Title VII. See Note, “A Trait-Based
Approach to National Origin Claims Under Title VII," 94 Yale L. J. 1164, 1170
(1985).
“ Cf. Lau v. Nichols, 414 U.S. 563 (1974) (interpreting Title VI’s ban
on national origin discrimination as encompassing discrimination on the basis of
limited English proficiency); Hernandez v, New York, 111 S.Ct at 1872-73, 114
L.Ed.2d at 413) ("It may well be, for certain ethnic groups and in some
communities, that proficiency in a particular language, like skin color, should be
treated as a surrogate for race under an equal protection analysis”); Espinoza,
supra, 414 U.S. at 293-294 n.5 (in finding no evidence of discrimination against
persons of Mexican national origin, this Court noted there was "no suggestion,
for example, that the company refused to hire aliens of Mexican or Spanish-
speaking background while hiring those of other national origins” (emphasis
added)); Craig v. County of Los Angeles, 626 F.2d 659, 661 n.1 (9th Cir. 1980)
15
an essential national origin characteristic” (29 C.F.R. §
1606.7(a)). The EEOC’s position that English-only rules which
punish the use of that primary language fall within the purview of
Title VII is not inconsistent with the plain language of the statute.
Nor is the Guideline inconsistent with the "unambiguously
expressed intent of Congress.” Chevron U.S.A, vy. Natural
Resources Defense Council ("Chevron"), 467 U.S. 837, 843
(1984). The Ninth Circuit correctly observed that “nowhere in the
legislative history is there any discussion of English-only policies
at all.” Spun Steak, 998 F.2d at 1490. Since the EEOC’s
promulgation of § 1606.7 in 1980, Congress has amended Title
VII on several occasions. Not once has Congress chosen to
overrule or alter the EEOC’s interpretation in respect to English-
only rules. "[DJeference is particularly appropriate where, as
here, an agency’s interpretation involves issues of considerable
public controversy, and Congress has not acted to correct any
misperception of its statutory objectives.” U.S, v. Rutherford, 442
U.S. 544, 554 (1979).
In fact, Congress has specifically endorsed the Guideline.
In the congressional debate over the Civil Rights Act of 1991,
Pub.L. No. 102-166, Sen. DeConcini expressed concern about "an
increasing problem with non-job related discipline and termination
of people for speaking languages other than English in the
workplace.” In response, Sen. Kennedy, co-author of the Civil
Rights Act of 1991, assured Sen. DeConcini that the EEOC’s
Guideline addressed the situation, confirmed that § 1606.7 "has
worked well during the past 11 years it has been in effect,” and
opined that it was consistent with Title VII as amended by the
1991 legislation. 137 Cong. Rec. $15489 (daily ed. Oct. 30,
1991) (remarks of Sens. DeConcini and Kennedy) (attached as
Appendix E hereto).
(plaintiff class defined by district court as “Spenish-surnamed” or “Spanish
language” persons); Castro v. Beecher, 334 F. Supp. 930 (D. Mass. 1971), aff'd
in_part, rev'd in part, 459 F.2d 725 (ist Cir. 1972) (definition of class of
"Spanish surnamed persons” encompassed those “whose primary language is
Spanish"). See also Note, "A Trait-Based Approach to National Origin Claims
Under Title VI], supra; Comment, "Native Born Acadians and the Equality
Ideal,” supra.
16
II. THE COURT SHOULD GRANT CERTIORARI TO
RESOLVE A CONFLICT AMONG THE CIRCUITS
AS TO THE PROPER STANDARD OF DEFERENCE
APPLICABLE TO THE EEOC.
Petitioners additionally urge this Court to grant certiorari
to resolve a conflict between the circuits as to which of this
Court’s decisions should be applied in questions of deference to the
EEOC Guidelines. The lack of clear guidance as to the
appropriate standard, reflected in this inter-circuit conflict, was
conducive to the Ninth Circuit’s rejection of the Guideline based
solely on its own tenuous extrapolation of the philosophy
underlying Title VII.
In Gilbert, this Court held that deference due to an EEOC
Guideline would depend “upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade .. .” 429 U.S. at 142 (quoting Skidmore vy,
Swift & Co,, 323 U.S. 134, 140 (1944).
Eight years after Gilbert, however, the Court returned to
a simple two-step method for judicial review of administrative
agencies’ interpretations of statutes they administer: Is the statute
ambiguous, and if so, has the agency adopted a reasonable
construction? Chevron, 467 U.S. at 842-43 (1984). In
Commercial Office Products, this Court applied Chevron’s analysis
to the EEOC’s administrative interpretations, stating "the EEOC’s
interpretation of ambiguous language reed only be reasonable to
be entitled to deference.” 486 U.S. at 115.
Nonetheless, in 1991, this Court again applied Gilbert in
ARAMCO, rejecting EEOC’s interpretation of Title VII without
even mentioning Chevron or Commercial Office Products, much
less purporting to modify them. As Justice Scalia observed, after
ARAMCO, "the state of the law regarding deference to the EEOC
is left unsettled” as between ARAMCO and Commercial Office
Products. 499 U.S. at 260 (Scalia, J., concurring).
Since ARAMCO, the circuits have applied two different
standards of deference to EEOC guidelines: (1) the “power to
persuade” standard of ARAMCO; and (2) the “reasonable”
standard of Commercial Office Products. The Fifth, Sixth,
Seventh and Tenth Circuits have applied Chevron or Commercial
17
Office Products in deferring to EEOC interpretations. See Vogel
y. City of Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992), cert.
denied, U.S. , 113 S.Ct. 86 (1992); Rowe vy, Sullivan, 967
F.2d 186, 194 (Sth Cir. 1992); Philbin v, General Electric Capital
Auto Lease, Inc,, 929 F.2d 321, 324 (7th Cir. 1991); Crozier v.
Howard, _ F.3d ___, 1993 WL 492340 n.4 (10th Cir. 1993).
The Ninth Circuit, on the other hand, has criticized the Sixth
Circuit’s failure to apply ARAMCO. Estate of Reynolds v.
Martin, 985 F.2d 470, 476 n.5 (9th Cir. 1993). The Third Circuit
has refused to defer to an EEOC regulation regarding time
limitations under the Age Discrimination in Employment Act,
relying on ARAMCO. Colgan v, Fisher Scientific Co,, 935 F.2d
1407, 1421 n.11 (rd Cir. 1991). Cf. Reich v. Parker Fire
Protection Dist,, 992 F.2d 1023, 1026 (10th Cir. 1993) (applying
“power to persuade” standard rather than Chevron to
“nonregulatory guidelines of the Secretary of Labor").
To further confuse matters, the Sixth Circuit has suggested
that ARAMCO applies to “substantive” EEOC regulations whereas
greater deference is due to “procedural” regulations. Jackson vy.
Richards Medical Co,, 961 F.2d 575, 581 (6th Cir. 1992). The
Seventh Circuit has suggested another distinction — that ARAMCO
rather than Chevron applies "in an interpretation involving the very
scope of an agency’s authority” (United States v. 25 Cases, 942
F.2d 1179, 1182-83 (7th Cir. 1991)), a result seemingly
inconsistent with Commercial Office Products.
In the context of the unsettled state of the law, and the
resultant inter-circuit conflict described above, it is unsurprising
that the panel majority below did not believe itself obliged to refer
to this Court’s recent statements on deference. In the absence of
clear, definitive guidance on the deference issue, the decision
below iliustrates that the lower courts are in effect left free to pick
and choose from a plethora of variously articulated standards
drawn from over two decades, inviting situations in which the
analysis of deference is — as was the case below — left virtually
standardless. Cf. Miller v, Beneficial Management Corp., 977
F.2d 834, 843 (3d Cir. 1992) (applying Griggs v. Duke Power
Co., supra, in deferring to EEOC regulation without referring to
Commercial Office Products or ARAMCO).
Accordingly, this Court should grant certiorari in order to
clarify and settle the question of deference to the EEOC, and to
18
secure uniformity and consistency of decision lacking in the lower
courts, a situation made only worse by the Ninth Circuit’s ill-
conceived decision below. See e.g. Saxbe v. Washington Post
Co., 417 U.S. 843, 846 (1974); Minnesota Mining Co, v, New
Jersey Wood Co,, 381 U.S. 311, 314 (1965).
Ill. THIS COURT SHOULD GRANT CERTIORARI
BECAUSE THE NINTH CIRCUIT’S REJECTION OF
THE LONGSTANDING EEOC GUIDELINE ON
SPEAK ENGLISH-ONLY RULES DISRUPTS
EFFECTIVE ADMINISTRATION OF TITLE VII ON
AN ISSUE OF GREAT AND GROWING
IMPORTANCE.
A. The Guideline Addresses An Important National
Issue Which Is Certain To Recur With
Increasing Frequency.
The subject of the Guideline ~ speak English-only rules —
is of great and growing importance. In rejecting the validity of the
Guideline, the Ninth Circuit has needlessly deprived the courts of
uniform guidance on their treatment at a time when such rules are
increasingly prevalent.
National origin discrimination in the form of workplace
language policies, of noted significance in 1980 when the EEOC
promulgated § 1606.7, is even more significant today as
America’s workforce becomes more ethnically and linguistically
diverse. According to the 1990 Census, approximately 32 million
U.S. residents over the age of five speak a foreign language at
home. In California alone, one out of three residents over the age
of five speaks a foreign language at home. The number of
'S The Commission noted that a 1976 study revealed approximately 28
million persons in the United States (about 13% of the population) have non-
English language background. 45 Fed. Reg. 85632, supra, at 85634.
‘© — McLeod, "Census Finds Many Speak Foreign Language at Home,” San
Francisco Chronicle, p. A3 (April 28, 1993). See Population Division, Bureau
of the Census, Pub. No. CPH-L-133, "Language Spoken at Home and Ability to
Speak English for the United States, Regions and States” (1990).
19
residents who speak Spanish at home increased by 56% from 1980
to 1990. The number of Chinese speakers increased 109% during
that same period.”
While no direct statistics are available as to the number of
complaints filed with the EEOC about speak English-only rules
specifically, claims of national origin discrimination in the
workplace are increasing. The EEOC reports that 14,394
complaints of national origin discrimination were filed with the
Commission in 1992, a jump of 30% over the number filed in
1989." There is evidence that English-only rules are increasingly
common.’? Review by this Court is particularly warranted
‘7 Numbers and Needs, Ethnic and Linguistic Minorities in the United
States, Vol. 3, No. 4, p.1 (July, 1993), citing William P. O'Hare, “America's
Minorities — the Demographics of Diversity,” Population Bulletin, Vol. 47, No.
4 (Washington, D.C.: Population Reference Bureau, Inc., Dec. 1992).
* Yang, “In Any Language, It’s Unfair,” Business Week, June 21, 1993,
at 110-111.
" See, ¢.g., Gutierrez v. Municipal Court, 838 F.2d 1031 (9h Cir.
1988); Jurado v, Eleven-Fifty Corp,, 813 F.2d 1406 (9th Cir. 1987); Saucedo v.
Brothers Well Service, 464 F.Supp. 919 (S.D. Tex. 1979); Dimaranan v.
Pomona Valley Hospital Medical Center, 775 F.Supp. 338 (C.D.Cal. 1991). See
also "A Month of Rancor,” Sacramento Bee, July 19, 1993, at Al4; Sanchez,
Howe, "Three Employees Allege Bias On Language; Bank Said to Have Issued
Ban on Speaking Spanish,” Washington Post, February 23, 1993, at Bl;
"Hispanic Rips English-only Hospital Policy,” Houston Chronicle, July 3, 1992,
at A44; Dawson, “English Only at Coffee Break,” Calgary Herald, October 18,
1991, at Al; "Suit Challenges English-only Rule at Vista Firm,” Los Angeles
Times, August 23, 1991, at B7; “In Court,” Los Angeles Times, September 24,
1990, at B4; “Foreign Languages —- How Would You Say ‘Good Law’ in
Tagaiog?” Seattle Times, September 24, 1990, at A6; Perea, “Speaking Spanish
Shouldn't Get You Fired,” Legal Tunes, September 17, 1990, at 26; Mydans,
"Pressure for English-Only Job Rules Stirring a Sharp Debate Across U.S.” Los
Angeles Times, June 18, 1990, at D2; “In Court: A Summary of Southern
California-Related Business Litigation Developments During the Past Week,” Los
Angeles Times, June 18, 1990, at D2; “Salvation Army Worker Files
Discrimination Suit,” Washington Times, December 21, 1989, at B8; Nichols,
"The English-Only Movement Legitimizes Attacks on Brotherhood and
Tolerance,” Los Angeles Times, February 19, 1989, Part 5 at 5; Ingwerson,
"English-Only Laws: How Broad?” Christian Science Monitor, November 29,
1988, at 3. See generally Burleson, "Taco Bell Forms Policy on Language,” The
Californian Sept. 25, 1992, at 1; Yang, “In Any Language, It’s Unfair,” Business
20
because the question as to the validity of the English-only
Guideline is likely to recur. See, e.g., Laing v. U.S., 423 U.S.
161, 167 (1976); U.S. v, Standard Oil Co,, 332 U.S. 301, 302 n.2
(1947).
B. The Ninth Circuit’s Rejection of the Guideline
Will Substantially Impair the Ability of the
EEOC To Enforce Title VII.
The Ninth Circuit’s unprecedented rejection of the EEOC’s
long-standing policy on English-only rules seriously hinders the
effective administration of Title VII on an issue of great and
growing importance and thus warrants certiorari. See e.g,
Rothensies v, Electric Battery Co,, 329 U.S. 296 (1946). The
decision undermines the clarity and guidance provided by the
Guideline and implementing Compliance Manual, and disrupts
national uniformity in the enforcement of Title VII.
The breadth of the Ninth Circuit’s decision — holding that
English-only rules generally do not constitute even a prima facie
case of discrimination, and thus obviating the need by employers
to demonstrate a business justification for such rules — is
particularly debilitating. It places virtually all challenges to
English-only rules beyond scrutiny, removing from the EEOC and
the courts the ability to examine on a case-by-case basis the
permissibility of English-only rules as measured against their
business purpose. Cf. Saucedo vy, Brothers Well Service, 464
F.Supp. 919 (S.D. Tex. 1979) (English-only rule on oil drilling rig
permissible); EEOC Dec. 81-25, 27 FEP 1820 (1981) (English-
only rule in tailor shop not justified); EEOC Dec. 83-7, 31 FEP
1861 (1983) (English-only rule applicable to refinery employees
working in laboratory and processing areas while actually
performing a job duty permissible).
Moreover, the Ninth Circuit’s holding, that the EEOC can
never presume a given practice has a disparate impact because
"lin,
Week, June 21, 1993, at 110-111; Heary, “Fighting Words,” Los Angeles Times,
June 10, 1990, at 10; Note, "English-only Rules and ‘Innocent’ Employers:
Clarifying National Origin Discrimination and Disparate Impact Theory Under
Title VII," 74 Minn. L. Rev. 387, 387-394 (1989).
21
Title VII requires that each prima facie case of discrimination be
established factually in every case, cannot be confined to the
Guideline. As Justice Reinhardt noted in his dissent from the
Ninth Circuit’s denial of rehearing en banc:
The majority apparently believes that the question
of the validity of a widespread discriminatory
practice must be decided over and over again on
a case by case basis in a private lawsuit each time
a new employer adopts it.
Spun Steak, slip op. at 14487-88.
Under the majority’s unique approach, an EEOC
Guideline stating, for example, that rules requiring
employees to be at least six feet tall are presumed
to have a disparate impact on women would be
held invalid even though the Supreme Court had
held that eight and weight requirements have a
disparate impact on women and the factual or
Statistical issue is the same in all cases.
Spun Steak, slip op. at 14487 n.7.”
*” — Preventing the EEOC from ever presuming a disparate impact (thereby
shifting the burden to the employer to show a business justification for the
challenged practice) is particularly detrimental to the enforcement of Title VII
where, as here, the prima facie case turns on an analysis of subjective factors
(¢.g. whether such rules impose a cognizable burden and whether they create a
hostile working environment) which less susceptible to proof on a case by case
basis. Judge Boochever aptly observed in his dissent from the panel opinion:
As the majority indicates, proof of such an effect of
English-only rules [of creating a discriminatory working
environment] requires analysis of subjective factors. It is
hard to envision how the burden of proving such an effect
would be met other than by conclusory self-serving statements
of the Spanish-speaking employees or possibly by expert
testimony of psychologists. The difficulty of meeting such a
burden may well have been one of the reasons for the
promulgation of the guideline. On the other hand, it should
not be difficult for an employer to give specific reasons for
22
This Court has never held that the EEOC cannot presume
a given practice has a disparate impact. For instance, the Court
did not reject the EEOC’s Guideline on pregnancy discrimination
in Gilbert because it effectively presumed that denial of disability
benefits for pregnancy constituted gender discrimination. Rather,
this Court engaged in a detailed consideration of the “power to
persuade” analysis pursuant to Skidmore v, Swift & Co,, 323 U.S.
134, 140 (1944), and found that the EEOC’s position had been
inconsistent and conflicted with related statutes and regulations.
See 429 U.S. at 140-143. Indeed, in Nashville Gas Co, v, Satty,
434 U.S. 136, 142 n.4 (1977), this Court subsequently upheld the
EEOC Guideline which presumes that the denial of seniority rights
arising out of pregnancy leaves constitutes gender discrimination.
IV. THIS COURT SHOULD GRANT CERTIORARI
BECAUSE THE NINTH CIRCUIT’S HOLDING
THAT ONE CANNOT CLAIM DISCRIMINATION IF
HE OR SHE CAN "READILY COMPLY" WITH AN
OBJECTIONABLE TERM OR CONDITION IS AT
ODDS WITH FUNDAMENTAL ANTI-
DISCRIMINATION PRINCIPLES AND
PROFOUNDLY LIMITS THE REACH OF TITLE
Vil.
Plaintiffs’ prima facie showing of disparate impact was
based in part upon the fact that Spun’s English-only rule
disproportionately burdened Latino workers by prohibiting them
from speaking in the language in which they are most proficient
and comfortable — their primary language, Spanish. As noted
above, that burden also provided a rationale for the EEOC’s
English-only Guideline.
The Ninth Circuit rejected this rationale, finding that
English-only rules as applied to bilingual employees (even
employees who are far more proficient and comfortable in their
primary language rather than in English) are not burdensome, but
the policy, — such as the safety reasons advanced in this case.
Spun Steak, 998 F.2d at 1490 (Boochever, J., dissenting in part).
23
"merely inconvenience” those employees because they can "readily
observe” the rule and “nonobservance is a matter of individual
preference.” Spun Steak, 998 F.2d at 1487 (quoting Garcia v.
Gloor, 618 F.2d at 270). According to the Ninth Circuit, "Title
VII is not meant to protect against rules that merely inconvenience
some employees, even if the inconvenience falls regularly on a
protected class." Spun Steak, 998 F.2d at 1488.
The court’s holding that one’s ability to comply with an
objectionable term or condition vitiates a claim of discrimination
is totally at war with fundamental anti-discrimination principle, and
represents a view which has never been countenanced by this
Court. As Judge Reinhardt observed:
This analysis demonstrates a remarkable
insensitivity to the facts and history of
discrimination. Whether or not the employees can
readily comply with a discriminatory rule is by no
means the measure of whether they suffer
significant adverse consequences. Some of the
most objectionable discriminatory rules are the
least obtrusive in terms of one’s ability to comply:
being required to sit in the back of a bus, for
example; or being relegated during one’s law
school career to a portion of the classroom
dedicated to one’s exclusive use. See McLaurin y.
Oklahoma State Regents, 339 U.S. 637, 70 S.Ct.
851 (1950).
Garcia et al. v. Spun Steak Co,, No. 91-16733, slip op. 14479,
14483 (9th Cir. 1993) (Reinhardt, J., dissenting from denial or
rehearing en banc).
The Ninth Circuit’s rationale finds no place in Title VII
jurisprudence. Rules requiring women to wear uniforms (Carroll
F.2d 1078 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980)) or
sexually revealing outfits (EEOC vy, Sage Realty Corp., 507
F.Supp. 599 (S.D.N.Y. 1981)), to abandon their unmarried name
(Allen v, Lovejoy, 553 F.2d 522, 524 (6th Cir. 1977)), or not to
wear eyeglasses (Laffey v, Northwest Airlines, Inc,, 567 F.2d
429, 443 (D.C. Cir. 1976)) are not immune under Title VII simply
24
because female employees can “readily comply” with the rule.”
Taken to its logical conclusion, a rule requiring employees
to abandon Spanish-surnames or ethnic given names while at work,
Or requiring dark complected employees to eat in a separate
cafeteria, or barring workers from joining particular ethnic
Organizations would be immune from scrutiny under Title VII
simply because the individual employee could, as a practical
matter, readily comply with the rule. The panel majority’s focus
on one’s practical ability to comply misconceives the guiding
principles of Title VII:
Thus, the Spun Steak majority’s emphasis
on the practical effects of English-only rules is
misplaced. Whether or not an individual is, in
practice, capable of speaking only English is not
the important consideration here by any means.
What is far more important is the impact of the
prohibition itself. As the EEOC correctly
determined, being forbidden under penalty of
discharge to speak one’s native tongue generally
has a pernicious effect on national origin
minorities.
Garcia et al. v. Spun Steak Co,, No. 91-16733, slip op. 14479,
14484 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of
rehearing en banc).
The Ninth Circuit’s rationale will substantially undermine
Title VII's enforcement against national origin discrimination in
particular. Unlike gender or race discrimination, which are
1 The Ninth Circuit's rationale cannot be confined to disparate impact
analysis. Under the court’s reasoning, if the objectionable term or condition
imposes a mere “inconvenience”, there is no cognizable claim whether the
“inconvenience falls regularly on a protected class” (\.¢. disparate impact) or
exclusively on a protected class (j.¢. disparate treatment). Stated otherwise, the
panel majority would uphold an employer's right to consciously and purposefully
single out members of protected classes for adverse treatment as long as the
objective burdens visited on those employees were merely an “inconvenience.”
In fact, the Ninth Circuit has applied the “readily comply” rationale to a disparate
treatment claim in Jurado v. Eleven Fifty Corp. See Jurado, 813 F.2d at 1406,
1411 (9th Cir. 1987).
25
commonly based on obvious and immutable physical
characteristics, discrimination on the basis of national origin
typically is not based on physical traits. Rather, national origin
minorities are identifiable by their surname, given name, cultural
customs and clothing, associations, and/or language — factors
which in general are not immutable. See Note, “A Trait-Based
Approach to National Origin Claims Under Title VII," 94 Yale L.
J. 1164, 1164-1167 (1985).
Vv. | THIS COURT SHOULD GRANT CERTIORARI AND
REVERSE OR, AT A MINIMUM, REMAND FOR
RECONSIDERATION IN LIGHT OF HARRIS V.
FORKLIFT SYSTEMS BECAUSE THE NINTH
CIRCUIT APPLIED AN IMPROPER STANDARD
FOR ASSESSING HOSTILE WORKING
ENVIRONMENTS.
Plaintiffs’ prima facie case of disparate impact and the
EEOC’s English-only Guideline are based in part upon the fact that
plant-wide English-only rules, such as that imposed by Spun Steak,
which prohibit national origin minorities from speaking their
primary language and suppress a core aspect of their ethnic
identity, tend to create an "atmosphere of inferiority, isolation and
intimidation based on national origin", thus fostering a
discriminatory and hostile working environment. 29 C.F.R. §
1606.7(a).
The Ninth Circuit rejected this theory, holding that
plaintiffs’ evidence did not raise even a triable issue of material
fact and that the EEOC could not presume English-only rules have
such an effect. The court effectively held that English-only rules
can ever create a hostile working environment absent
extraordinary circumstances — j,e, where they “combine[] with
other discriminatory behavior" and contribute to an overall
environment of discrimination or are “enforced in such a draconian
manner that the enforcement itself amounts to harassment." Spun
Steak, 998 F.2d at 1489.
The Ninth Circuit’s holding was predicated on its
application of a legal standard erroneously discerned from the
language of the Fifth Circuit’s decision in Rogers vy. EEOC, 454
F.2d 234, 238 (Sth Cir. 1971), cert. denied, 406 U.S. 957 (1972),
26
quoted in Meritor Savings Bank v. Vinson, 477 U.S. 57, 66
(1986):
[T]he phrase ‘terms, conditions or privileges of
employment’ in [Title VII] is an expansive concept
which sweeps within its protective ambit the
practice of creating a working environment heavily
charged with ethnic or racial discrimination. . . .
One can readily envision working environments so
heavily polluted with discrimination as to destroy
completely the emotional and psychological
stability of minority group workers.
Spun Steak, 998 F.2d at 1488, quoting Rogers, supra, 454 F.2d at
238. But as this Court subsequently held in Harris v. Forklift
Systems, __—*U.S. _, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993),
Meritor and Rogers “merely present some especially egregious
examples of harassment. They do not mark the boundary of what
is actionable." All that is required is conduct severe or pervasive
enough to create "an environment that a reasonable person would
find hostile or abusive." Harris, 114 S.Ct. at 371, 126 L.Ed.2d
at 302 (emphasis added).
Under the proper “reasonable person" standard, the EEOC
could rationally presume that English-only rules create an
environment that a reasonsble person would find hostile or
abusive. Unlike cases involving sexual or racial harassment by an
individual supervisor or co-worker where the range of possible
unwelcome behavior necessarily admits of a wide spectrum of
severity, the intimidating and oppressive impact of an
institutionalized, company-wide English-only rule is pervasive and
invariably disadvantages a protected class of employees.
In any event, plaintiffs’ substantial evidence in the instant
case, describing the intimidating manner in which the English-only
rule was enforced and the oppressive effect of the rule upon their
psychological and emotional well-being, certainly created a triable
issue of fact as to whether the rule was severe or pervasive enough
to create “an environment that a reasonable person would find
hostile or abusive.”
The Court should grant certiorari and reverse in light of
this Court’s intervening decision in Harris. See e.g. Helvering v,
27
Wiese, 292 U.S. 614 (1934). At a minimum, the Court should
grant certiorari and remand the case to the Ninth Circuit for
reconsideration in light of Harris. See e.g., Kirwan v. Romano,
425 U.S. 929 (1976); John Nuveen & Co. v. Sanders, 425 U.S.
928 (1976).
CONCLUSION
For the reasons stated above, Petitioners respectfully
request that this Court grant the Petition for Writ of Certiorari
prayed for herein. At a minimum, Petitioners respectfully suggest
that the Court invite the views of the United States, given the
importance and effect of the Ninth Circuit’s decision invalidating
a long-standing Guideline of the EEOC.
Respectfully submitted,
EDWARD M. CHEN
Counsel of Record
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA
1663 Mission Street, Suite 460
San Francisco, California 94103
Telephone: (415) 621-2493
CHRISTOPHER HO
THE EMPLOYMENT LAW CENTER,
A Project of the Legal Aid
Society of San Francisco
1663 Mission Street, Suite 400
San Francisco, California 94103
Telephone: (415) 864-8848
WILLIAM H. ORRICK, III
COBLENTZ, CAHEN, McCABE & BREYER
222 Kearny Street, 7th Floor
San Francisco, California 94108
Telephone: (415) 391-4800
Counsel for Petitioners
29
INDEX TO APPENDICES
Opinion of the United States Court of
Appeals for the Ninth Circuit in Garcia,
et al. v. Spun Steak Company, Case
No. 91-16733, filed July 16, 1993
(subsequently published at 998 F.2d
DCT Weel ad eee sereeeses
Orders and Dissent of the United States
Court of Appeals for the Ninth Circuit
in Garcia, et al. v. Spun Steak
Company, Case No. 91-16733, filed
COUSOT Ze, TPS ccc cccccccces
Order and Judgment of the United States
District Court for the Northern District
of California in Garcia, et al. v. Spun
Steak Company, Case No. C-91-01949-
RHS, filed October 11, 1991 ......
Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, and EEOC
Guidelines on Discrimination Because of
National Origin, 29 C.F.R. § 1606.1-
a
Congressional Record, Wednesday,
October 30, 1991, pp. $15437-15489
CC EO er
Page
la
20a
34a
40a
43a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 91-16733
D. C. No. CV-91-01949-RHS
PRISCILLA GARCIA; MARICELA BUITRAGO; UNITED
FOOD AND COMMERCIAL WORKERS INTERNATIONAL
UNION, AFL-CIO,
Plaintiffs-Appellees,
v.
SPUN STEAK COMPANY, a California corporation,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
Robert H. Schnacke, Senior Judge, Presiding
Argued and Submitted
November 3, 1992 — San Francisco, California
Filed July 16, 1993
Before: Robert Boochever, John T. Noonan, Jr., and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge O’Scannlain; Dissent by Judge
Boochever
la
COUNSEL
James A. Carter, Hendrickson, Higbie & Carter, San Francisco,
California, for the defendant-appellant.
Edward M. Chen, American Civil Liberties Union Foundation of
Northern California, San Francisco, California, for the plaintiffs-
appellees.
Jennifer S. Goldstein, Equal Employment Opportunity
Commission, Washington, D.C., for the amicus.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether an employer violates
Title VII of the Civil Rights Act of 1964 in requiring its bilingual
workers to speak only English while working on the job.
Spun Steak Company ("Spun Steak") is a California
corporation that produces poultry and meat products in South San
Francisco for wholesale distribution. Spun Steak employs thirty-
three workers, twenty-four of whom are Spanish-speaking.
Virtually all of the Spanish-speaking employees are Hispanic.
While two employees speak no English, the others have varying
degrees of proficiency in English. Spun Steak has never required
job applicants to speak or to understand English as a condition of
employment.
Approximately two-thirds of Spun Steak’s employees are
production line workers or otherwise involved in the production
process. Appellees Garcia and Buitrago are production line
workers; they stand before a conveyor belt, remove poultry or
other meat products from the belt and place the product into cases
or trays for resale. Their work is done individually. Both Garcia
2a
EE aS...
and Buitrago are fully bilingual, speaking both English and
Spanish.
Appellee Local 115, United Food and Commercial
Workers International Union, AFL-CIO ("Local 115"), is the
collective bargaining agent representing the employees at Spun
Steak.
Prior to September 1990, these Spun Steak employees
spoke Spanish freely to their co-workers during work hours. After
receiving complaints that some workers were using their bilingual
capabilities to harass and to insult other workers in a language they
could not understand, Spun Steak began to investigate the
possibility of requiring its employees to speak only English in the
workplace. Specifically, Spun Steak received complaints that
Garcia and Buitrago made derogatory, racist comments in Spanish
about two co-workers, one of whom is African-American and the
other Chinese-American.
The company’s president, Kenneth Bertelson, concluded
that an English-only rule would promote racial harmony in the
workplace. In addition, he concluded that the English-only rule
would enhance worker safety because some employees who did not
understand Spanish claimed that the use of Spanish distracted them
while they were operating machinery, and would enhance product
quality because the U.S.D.A. inspector in the plant spoke only
English and thus could not understand if a product-related concern
was raised in Spanish. Accordingly, the following rule was
adopted:
[I]t is hereafter the policy of this Company that
only English will be spoken in connection with
work. During lunch, breaks, and employees’ own
time, they are obviously free to speak Spanish if
they wish. However, we urge all of you not to
use your fluency in Spanish in a fashion which
may lead other employees to suffe: humiliation.
3a
In addition to the English-only policy, Spun Steak adopted a rule
forbidding offensive racial, sexual, or personal remarks of any
kind.
It is unclear from the record whether Spun Steak strictly
enforced the English-only rule. According to the plaintiffs-
appellees, some workers continued to speak Spanish without
incident. Spun Steak issued written exceptions to the policy
allowing its clean-up crew to speak Spanish, allowing its foreman
to speak Spanish, and authorizing certain workers to speak Spanish
to the foreman at the foreman’s discretion. One of the two
employees who speak only Spanish is a member of the clean-up
crew and thus is unaffected by the policy.
In November 1990, Garcia and Buitrago received warning
letters for speaking Spanish during working hours. For
approximately two months thereafter, they were not permitted to
work next to each other. Local 115 protested the English-only
policy and requested that it be rescinded but to no avail.
On May 6, 1991, Garcia, Buitrago, and Local 115 filed
charges of discrimination against Spun Steak with the U.S. Equal
Employment Opportunity Commission ("EEOC"). The EEOC
conducted an investigation and determined that "there is reasonable
cause to believe [Spun Steak] violated Title VII of the Civil Rights
Acts of 1964, as amended, with respect to its adoption of an
English-only rule and with respect to retaliation when [Garcia,
Buitrago, and Local 115] complained.”
Garcia, Buitrago, and Local 115, on behalf of all Spanish-
speaking employees of Spun Steak, (collectively, “the Spanish-
speaking employees") filed suit, alleging that the English-only
policy violated Title VII. On September 6, 1991, the parties filed
cross-motions for summary judgment. The district court denied
Spun Steak’s motion and granted the Spanish-speaking employees’
motion for summary judgment, concluding that the English-only
policy disparately impacted Hispanic workers without sufficient
business justificatior and thus violated Title VII. Spun Steak filed
this timely appeal and the EEOC filed a brief amicus curiae and
participated in oral argument.
a
II
As a preliminary matter, we must consider whether Local
115 has standing to sue on behalf of the Spanish-speaking
employees at Spun Steak. If Local 115 does not have standing, we
will consider the application of the policy only to Garcia and
Buitrago, both of whom speak English fluently.
"[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have Standing to
sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit." Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).
Here, it is clear that the Spanish-speaking employees would
have standing to sue in their own right because they could claim
injury from the application of the policy to them. Further, it is
clear that the employees’ interest in the conditions of the
workplace is germane to Local 115’s purpose as the collective
bargaining agent of the employees. Finally, the claim asserted and
the relief requested do not require the participation of individual
members. Local 115 claims that the policy has a per se
discriminatory impact on all Spanish-speaking employees. Further,
the union is seeking only injunctive relief on behalf of its
members, not damages.
In short, Local 115 has standing.
Sa
ITT
Sections 703(a)(1) and (2) of Title VII provide:
(a) It shall be an unlawful employment practice 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 employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a). It is well-settled that Title VII is
concerned not only with intentional discrimination, but also with
employment practices and policies that lead to disparities in the
treatment of classes of workers. See, e.g., Griggs v. Duke Power
Co., 401 U.S. 424, 430-31 (1970). Thus, a plaintiff alleging
discrimination under Title VII may proceed under two theories of
liability: disparate treatment or disparate impact. Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986-87 (1987). While the
disparate treatment theory requires proof of discriminatory intent,
intent is irrelevant to a disparate impact theory. Jd. at 988.
"[I)mpact analysis is designed to implement Congressional concern
with "the consequences of employment practices, not simply the
motivation.’” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424
(9th Cir. 1990) (citations omitted).
A
The Spanish-speaking employees do not contend that Spun
Steak intentionally discriminated against them in enacting the
English-only policy. Rather, they contend that the policy had a
discriminatory impact on them because it imposes a burdensome
term or condition of employment exclusively upon Hispanic
workers and denies them a privilege of employment that non-
Spanish-speaking workers enjoy. Because their claim focuses on
disparities in the terms, conditions, and privileges of employment,
and not on barriers to hiring or promotion, it is outside the
mainstream of disparate impact cases decided thus far. As a
threshold matter, therefore, we must determine whether the
disparate impact theory can be made applicable at all.
The disparate impact cause of action developed out of the
language in section 703(a)(2) prohibiting discrimination based on
deprivation of employment opportunities, such as the opportunity
to be hired or promoted. See, e.g., Connecticut v. Teal, 457 U.S.
440, 448-50 (1981). Our court’s disparate impact cases fall
Squarely within the language of Section 703(a)(2). The cases in
which we have concluded that the plaintiff has proved
discrimination based on a disparate impact theory have all involved
plaintiffs who claimed that they were denied employment
Opportunities as the result of artificial, arbitrary, and unnecessary
barriers that excluded members of a protected group from being
hired or promoted, see, e.g., Bouman v. Block, 940 F.2d 1211,
1224-26 (9th Cir.), cert. denied, 112 S. Ct. 640 (1991), not
plaintiffs contending that they were subjected to harsher working
conditions than the general employee population.
[1] This case, by contrast, does not fall within the
language of section 703(a)(2). While policies that serve as barriers
to hiring or promotion clearly deprive applicants of employment
opportunities, we cannot conclude that a burdensome term or
condition of employment or the denial of a privilege would “limit,
segregate, or classify” employees in a way that would "deprive any
individual of employment opportunities” or “otherwise adversely
affect his status as an employee” in violation of section 703(a)(2).
See Nashville Gas Co. v. Satty, 434 U.S. 136, 144 (1977)
7a
(deprivation of benefits does not fall under § 703(a)(2)). Such
claims, therefore, must be brought directly under section 703(a)(1).
We have never expressly considered, however, whether disparate
impact theory applies to claims under section 703(a)(1), and the
Supreme Court has explicitly reserved the issue. Jd.
[2] Nevertheless, we are called upon to decide the issue
in this case notwithstanding the parties’ failure to brief it. Our
decision is simple: we see no reason to restrict the application of
the disparate impact theory to the denial of employment
opportunities under section 703(a)(2). The Supreme Court has
instructed that the language of section 703(a)(1) is to be interpreted
broadly. "[TJhe phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent to strike at the entire
spectrum of disparate treatment,” Meritor Sav. Bank v. Vinson,
477 U.S. 57, 64 (1985) (internal quotations and citations omitted),
even when the differences in treatment are not the result of
intentional discrimination. See also Lynch v. Freeman, 817 F.2d
380, 387 (6th Cir. 1987) ("The language of section 703(a)(2) is ...
broad enough to include working conditions that have an adverse
impact on a protected group of employees."). Regardless whether
a company’s decisions about whom to hire or to promote are
infected with discrimination, policies or practices that impose
Significantly harsher burdens on a protected group than on the
employee population in general may operate as barriers to equality
in the workplace and, if unsupported by a business justification,
may be considered "discriminatory." /d.; cf. Meritor Sav. Bank,
477 U.S. at 57 (sexual harassment can be arbitrary barrier to
equality in the marketplace). We are satisfied that a disparate
impact claim may be based upon a challenge to a practice or policy
that has a significant adverse impact on the “terms, conditions, or
privileges” of the employment of a protected group under
section 703(a)(1).
B
To make out a prima facie case of discriminatory impact,
plaintiff must identify a specific, seemingly neutral practice or
policy that has a significantly adverse impact on persons of a
8a
i ince
protected class, Teal, 457 U.S. at 446. If the prima facie case is
established, the burden shifts to the employer to “demonstrate that
the challenged practice is job related for the position in question
and consistent with business necessity." 42 U.S.C.A. § 2000e-
2(k)(1)(A) (Supp. 1992). In this case, the district court granted
summary judgment in favor of the Spanish-speaking employees,
concluding that, as a matter of law, the employees had made out
the prima facie case and the justifications offered by the employer
were inadequate.
{3} We first consider whether the Spanish-speaking
employees have made out the prima facie case. "[T]he
requirements of a prima facie disparate impact case ... are in some
respects more exacting than those of a disparate treatment case."
Spaulding v. University of Washington, 740 F.2d 686, 705 (9th
Cir.) (citation omitted), cert. denied, 469 U.S. 1036 (1984). In
the disparate treatment context, a plaintiff can make out a prima
facie case merely by presenting evidence sufficient to give rise to
an inference of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-06 (1973). Ina disparate impact case,
by contrast, plaintiffs must do more than merely raise an inference
of discrimination before the burden shifts; they "must actually
prove the discriminatory impact at issue." Rose, 902 F.2d at
1421. In the typical disparate impact case, in which the plaintiff
argues that a selection criterion excludes protected applicants from
jobs or promotions, the plaintiff proves discriminatory impact by
showing statistical disparities between the number of protected
class members in the qualified applicant group and those in the
relevant segment of the workforce. Wards Cove Packing Co. v.
Atonio, 490 U.S. 642, 650 (1988). While such statistics are often
difficult to compile, whether the protected group has been
disadvantaged turns on quantifiable data. When the alleged
disparate impact is on the conditions, terms, Or privileges of
employment, however, determining whether the protected group
has been adversely affected may depend on subjective factors not
easily quantified. The fact that the alleged effects are subjective,
however, does not relieve the plaintiff of the burden of proving
disparate impact. The plaintiff may not merely assert that the
policy has harmed members of the group to which he or she
belongs. Instead, the plaintiff must prove that the existence of
9a
adverse effects of the policy, must prove that the impact of the
policy is on terms, conditions, or privileges of employment of the
protected class, must prove that the adverse effects are significant,
and must prove that the employee population in general is not
affected by the policy to the same degree.
It is beyond dispute that, in this case, if the English-only
policy causes any adverse effects, those effects will be suffered
disproportionately by those of Hispanic origin. The vast majority
of those workers at Spun Steak who speak a language other than
English - and virtually all those employees for whom English is
not a first language — are Hispanic. It is of no consequence that
not all Hispanic employees of Spun Steak speak Spanish; nor is it
relevant that some non-Hispanic workers may speak Spanish. If
the adverse effects are proved, it is enough under Title VII that
Hispanics are disproportionately impacted.
[4] The crux of the dispute between Spun Steak and the
Spanish-speaking employees, however, is not over whether
Hispanic workers will disproportionately bear any adverse effects
of the policy; rather, the dispute centers on whether the policy
Causes any adverse effects at all, and if it does, whether the effects
are significant. The Spanish-speaking employees argue that the
policy adversely affects them in the following ways: (1) it denies
them the ability to express their cultural heritage on the job; (2) it
denies them a privilege of employment that is enjoyed by
monolingual speakers of English; and (3) it creates an atmosphere
of inferiority, isolation, and intimidation. We discuss each of
these contentions in turn.’
The Spanish-speaking employees rely on the reasoning in Gutierrez v.
Municipal Court, 838 F.2d 1031 (9th Cir. 1988), vacated as moot, 490 U.S.
1016 (1989), which held that English-only policies adversely impact Spanish-
speaking employees. The case has no precedential authority, however, because
it was vacated as moot by the Supreme Court. We are in no way bound by its
reasoning.
10a
a ii ia ca
a
[5] The employees argue that denying them the ability to
speak Spanish on the job denies them the right to cultural
expression. It cannot be gainsaid that an individual’s primary
language can be an important link to his ethnic culture and
identity. Title VII, however, does not protect the ability of
workers to express their cultural heritage at the workplace. Title
VII is concerned only with disparities in the treatment of workers;
it does not confer substantive privileges. See, e.g., Garcia v.
Gloor, 618 F.2d 264, 269 (Sth Cir. 1980), cert. denied, 449 U.S.
1113 (1981). It is axiomatic that an employee must often sacrifice
individual self-expression during working hours. Just as a private
employer is not required to allow other types of self-expression,
there is nothing in Title VII which requires an employer to allow
employees to express their cultural identity.
b
Next, the Spanish-speaking employees argue that the
English-only policy has a disparate impact on them because it
deprives them of a privilege given by the employer to native-
English speakers: the ability to converse on the job in the
language with which they feel most comfortable. It is undisputed
that Spun Steak allows its employees to converse on the job. The
ability to converse -- especially to make small talk — is a privilege
of employment, and may in fact be a significant privilege of
employment in an assembly-line job. It is inaccurate, however, to
describe the privilege as broadly as the Spanish-speaking
employees urge us to do.
The employees have attempted to define the privilege as
the ability to speak in the language of their choice. A privilege,
however, is by definition given at the employer’s discretion; an
employer has the right to define its contours. Thus, an employer
may allow employees to converse on the job, but only during
certain times of the day or during the performance of certain tasks.
The employer may proscribe certain topics as inappropriate during
lla
iii ia
working hours or may even forbid the use of certain words, such
as profanity.
Here, as is its prerogative, the employer has defined the
privilege narrowly. When the privilege is defined at is narrowest
(as merely the ability to speak on the job), we cannot conclude that
those employees fluent in both English and Spanish are adversely
impacted by the policy. Because they are able to speak English,
bilingual employees can engage in conversation on the job. It is
axiomatic that "the language a person who is multi-lingual elects
to speak at a particular time is ... a matter of choice." Garcia,
618 F.2d at 270. The bilingual employee can readily comply with
the English-only rule and still enjoy the privilege of speaking on
the job. "There is no disparate impact” with respect to a privilege
of employment "if the rule is one that the affected employee can
readily observe and nonobservance is a matter of individual
preference.” Jd.
This analysis is consistent with our decision in Jurado v.
Eleven-Fifty Corporation, 813 F.2d 1406, 1412 (9th Cir. 1987).
In Jurado, a bilingual disc jockey was fired for disobeying a rule
forbidding him from using an occasional Spanish word or phrase
on the air. We concluded that Jurado’s disparate impact claim
failed “because Jurado was fluently bilingual and could easily
comply with the order” and thus could not have been adversely
affected. Jd.
[6] The Spanish-speaking employees argue that fully
bilingual employees are hampered in the enjoyment of the privilege
because for them, switching from one language to another is not
fully volitional. Whether a bilingual speaker can control which
language is used in a given circumstance is a factual issue that
cannot be resolved at the summary judgment stage. However, we
fail to see the relevance of the assertion, even assuming that it can
be proved. Title VII is not meant to protect against rules that
merely inconvenience some employees, even if the inconvenience
falls regularly on a protected class. Rather, Title VII protects
against only those policies that have a significant impact. The fact
that an employee may have to catch himself or herself from
occasionally slipping into Spanish does not impose a burden
12a
ai i i tte
Significant enough to amount to the denial of equal opportunity.
This is not a case in which the employees have alleged that the
company is enforcing the policy in such a way as to impose
penalties for minor slips of the tongue. The fact that a bilingual
employee may, on occasion, unconsciously substitute a Spanish
word in the place of an English one does not override our
conclusion that the bilingual employee can easily comply with the
tule. In short, we conclude that a bilingual employee is not denied
a privilege of employment by the English-only policy.
[7] By contrast, non-English speakers cannot enjoy the
privilege of conversing on the job if conversation is limited to a
language they cannot speak. As applied “[t]o a person who speaks
only One tongue or to a person who has difficulty using another
language than the one spoken in his home,” an English-only rule
might well have an adverse impact. Garcia, 618 F.2d at 270.
Indeed, counsel for Spun Steak conceded at oral argument that the
policy would have an adverse impact on an employee unable to
speak English. There is only one employee at Spun Steak affected
by the policy who is unable to speak any English. Even with
regard to her, however, summary judgment was improper because
a genuine issue of material fact exists as to whether she has been
adversely affected by the policy. She stated in her deposition that
she was not bothered by the rule because she preferred not to make
small talk on the job, but rather preferred to work in peace.
Furthermore, there is some evidence suggesting that she is not
required to comply with the policy when she chooses to speak.
For example, she is allowed to speak Spanish to her supervisor.
Remand is necessary to determine whether she has suffered
adverse effects from the policy. It is unclear from the record
whether there are any other employees who have such limited
proficiency in English that they are effectively denied the privilege
of speaking on the job. Whether an employee speaks such little
English as to be effectively denied the privilege is a question of
fact for which summary judgment is improper.
13a
Cc
Finally, the Spanish-speaking employees argue that the
policy creates an atmosphere of inferiority, isolation, and
intimidation. Under this theory, the employees do not assert that
the policy directly affects a term, condition, or privilege of
employment. Instead, the argument must be that the policy causes
the work environment to become infused with ethnic tensions. The
tense environment, the argument goes, itself amounts to a
condition of employment.
The Supreme Court in Meritor Savings Bank v. Vinson,
477 U.S. at 66, held that an abusive work environment may, in
some circumstances, amount to a condition of employment giving
rise to a violation of Title VII. The Court quoted with approval
the decision in Rogers v. EEOC, 454 F.2d 234, 238 (Sth Cir.
1971), cert. denied, 406 U.S. 957 (1972):
[T]he phrase *terms, conditions or privileges of
employment’ in [Title VII] is an expansive concept
which sweeps within its protective ambit the
practice of creating a working environment heavily
charged with ethnic or racial discrimination. . . .
One can readily envision working environments so
heavily polluted with discrimination as to destroy
completely the emotional and psychological
stability of minority group workers.
Although Vinson is a sexual harassment case in which the
individual incidents involved behavior that was arguably
intentionally discriminatory, its rationale applies equally to cases
in which seemingly neutral policies of a company infuse the
atmosphere of the workplace with discrimination. The Vinson
Court emphasized, however, that discriminatory practices must be
pervasive before an employee has a Title VII claim under a hostile
environment theory.
l4a
Here, the employees urge us to adopt a per se rule that
English-only policies always infect the working environment to
such a degree as to amount to a hostile or abusive work
environment. This we cannot do. Whether a working
environment is infused with discrimination is a factual question,
one for which a per se rule is particularly inappropriate. The
dynamics of an individual workplace are enormously complex; we
cannot conclude, as a matter of law, that the introduction of an
English-only policy, in every workplace, will always have the
same effect.
[8] The Spanish-speaking employees in this case have
presented no evidence other than conclusory statements that the
policy has contributed to an atmosphere of "isolation, inferiority
or intimidation." The bilingual employees are able to comply with
the rule, and there is no evidence to show that the atmosphere at
Spun Steak in general is infused with hostility toward Hispanic
workers. Indeed, there is substantial evidence in the record
demonstrating that the policy was enacted to prevent the employees
fron intentionally using their fluency in Spanish to isolate and to
intintidate members of other ethnic groups. In light of the specific
factual context of this case, we conclude that the bilingual
employees have not raised a genuine issue of material fact that the
effect is so pronounced as to amount to a hostile environment. See
generally Anderson v. Liberty Lobby, 106 S. Ct. 2505, 2511
(1986).
We do not foreclose the prospect that in some
circumstances English-only rules can exacerbate existing tensions,
or, when combined with other discriminatory behavior, contribute
to an overall environment of discrimination. Likewise, we can
envision a case in which such rules are enforced in such a
draconian manner that the enforcement itself amounts to
harassment. In evaluating such a claim, however, a court must
look to the totality of the circumstances in the particular factual
context in which the claim arises.
In holding that the enactment of an English-only while
working policy does not inexorably lead to an abusive environment
for those whose primary language is not English, we reach a
conclusion opposite to the EEOC’s long standing position. The
EEOC Guidelines provide that an employee meets the prima facie
case in a disparate impact cause of action merely by proving the
existence of the English-only policy. See 29 C.F.R. § 1606.7 (a)
& (b) (1991). Under the EEOC’s scheme, an employer must
always provide a business justification for such a rule. /d. The
EEOC enacted this scheme in part because of its conclusion that
English-only rules may “create an atmosphere of inferiority,
isolation and irtimidation based on national origin which could
result in a discriminatory working environment.” 29 C.F.R.
§ 1606.7(a).
We do not reject the English-only rule Guideline lightly.
We recognize that “as an administrative interpretation of the Act
by the enforcing agency, these Guidelines ... constitute a body of
experience and informed judgment to which courts and litigants
may properly resort for guidance.” Meritor Sav. Bank, 477 U.S.
57 at 65 (internal quotations and citations omitted). But we are not
bound by the Guidelines. See Espinoza v. Farah Mfg. Co., Inc.,
414 U.S. 86, 94 (1973). We will not defer to "an administrative
construction of a statute where there are ‘compelling indications
that it is wrong.’" Jd.
[9] We have been impressed by Judge Rubin's pre-
Guidelines analysis for the Fifth Circuit in Garcia, which we
follow today. Garcia, 618 F.2d 264. Nothing in the plain
language of section 703(a)(1) supports EEOC’s English-only rule
Guideline. “Title VII could not have been enacted into law
without substantial support from legislators in both Houses who
traditionally resisted federal regulation of private business.”
United Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193
16a
(1979). “Those legislators demanded as a price for their support
that,” id.,
management prerogatives, and union freedoms are
to be left undisturbed to the greatest extent
possible. Internal affairs of employers and labor
Organizations must not be interfered with except to
the limited extent that correction is required in
discrimination practices.
Statement of William M. McCulloch, et al., H.R. Rep. No. 914,
88 Cong., 2d Sess (1964), reprinted in 1964 U.S.C.C.A.N. 2516
(quoted in part in Steelworkers, 443 U.S. at 206). It is clear that
Congress intended a balance to be struck in preventing
discrimination and preserving the independence of the employer.
In striking that balance, the Supreme Court has held that a plaintiff
in a disparate impact case must prove the alleged discriminatory
effect before the burden shifts to the employer. The EEOC
Guideline at issue here contravenes that policy by presuming that
an English-only policy has a disparate impact in the absence of
proof. We are not aware of, nor has counsel shown us, anything
in the legislative history to Title VII that indicates that English-
only policies are to be presumed discriminatory. Indeed, nowhere
in the legislative history is there a discussion of English-only
policies at all.
2
Because the bilingual employees have failed to make out
a prima facie case, we need not consider the business justifications
offered for the policy as applied to them. On remand, if
Local 115 is able to make out a prima facie case with regard to
employees with limited proficiency in English, the district court
could then consider any business justification offered by Spun
Steak.
IV
In sum, we conclude that the bilingual employees have not
made out a prima facie case and that Spun Steak has not violated
Title VII in adopting an English-only rule as to them. Thus, we
reverse the grant of summary judgment in favor of Garcia,
Buitrago, and Local 115 to the extent it represents the bilingual
employees, and remand with instructions to grant summary
judgment in favor of Spun Steak on their claims. A genuine issue
of material fact exists as to whether there are one or more
employees represented by Local 115 with limited proficiency in
English who were adversely impacted by the policy. As to such
employee or employees, we reverse the grant of summary
judgment in favor of Local 115, and remand for further
proceedings.
REVERSED and REMANDED.
Boochever, Circuit Judge, dissenting in part:
I agree with most of the majority’s carefully crafted
opinion. I dissent, however, from the majority’s rejection of the
EEOC guidelines. The guidelines provide that an employee
establishes a prima facie case in a disparate impact claim by
proving the existence of an English-only policy, thereby shifting
the burden to the employer to show a business necessity for the
rule. See 29 C.F.R. § 1606.7(b) (1991) (“An employer may have
a rule requiring that employees speak only in English at certain
times where the employer can show that the rule is justified by
business necessity."). I would defer to the Commission’s expertise
in construing the Act, by virtue of which it concluded that English-
only rules may “create an atmosphere of inferiority, isolation and
intimidation based on national origin which could result in a
discriminatory working environment.” Jd. § 1606.7(a).
As the majority indicates, proof of such an effect of
English-only rules requires analysis of subjective factors. It is
hard to envision how the burden of proving such an effect would
be met other than by conclusory self-serving statements of the
18a
ee
Spanish-speaking employees or possibly by expert testimony of
psychologists. The difficulty of meeting such a burden may well
have been one of the reasons for the promulgation of the guideline.
On the other hand, it should not be difficult for an employer to
give specific reasons for the policy, ~ such as the safety reasons
advanced in this case.
It is true that EEOC regulations are entitled to somewhat
less weight than those promulgated by an agency with
Congressionally delegated rulemaking authority. Gerzral Elec.
Co. v. Gilbert, 429 U.S. 125, 141 (1976). Nevertheless, the
EEOC guideline is entitled to "great deference” in the absence of
“compelling indications that it is wrong." Espinoza v. Farah Mfg.
Co., 414 U.S. 86, 94-95 (1973). While one may reasonably differ
with the EEOC’s position as a matter of policy, I can find no such
“compelling indications" in this case. The lack of directly
supporting language in § 703(a)(1) or the legislative history of
Title VII, relied on by the majority, does not in my Opinion make
the guideline "inconsistent with an obvious congressional intent not
to reach the employment practice in question.” Jd. at 94.
I conclude that if appropriate deference is given to the
administrative interpretation of the Act, we should follow the
guideline and uphold the district court’s decision that a prima facie
case was established. I believe, however, that triable issues were
presented whether Spun Steak established a business justification
for the rule, and I would remand for trial of that issue.
19a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 91-16733
D. C. No. CV-91-01949-RHS
PRISCILLA GARCIA; MARICELA BUITRAGO; UNITED
FOOD AND COMMERCIAL WORKERS INTERNATIONAL
UNION, AFL-CIO,
Plaintiffs-Appellees,
\
SPUN STEAK COMPANY, a California corporation,
Defendant-Appellant.
ORDERS AND DISSENT
Filed October 29, 1993
Before: Robert Boochever, John T. Noonan, Jr., and
Diarmuid F. O’Scanniain, Circuit Judges.
ORDER
The order filed October 29, 1993, with
dissent, is ordered published.
20a
ORDER
The panel [slip op. 14479], with Judge Boochever
dissenting, has voted to deny appellees’ petition for rehearing.
Judges Noonan and O’Scannilain have voted to reject the suggestion
for rehearing en banc and Judge Boochever has recommended
acceptance of the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing
en banc. An active judge requested a vote on whether to [14480]
rehear the matter en banc. The matter failed to receive a majority
of the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED.
Reinhardt, Circuit Judge, dissenting from denial of rehearing en
banc:
Once again, a civil rights principle is the loser at the hands
of an unsympathetic court.” In this case, by a divided vote, a
three-judge panel invalidated an Equal Employment Opportunity
Commission (EEOC) Guideline of national scope, upheld an
employment rule that discriminates against national-origin
minorities without requiring any showing of business justification,
and challenged the EEOC’s ability to enact rules codifying its
findings regarding specific discriminatory practices. See Garcia v.
Spun Steak Co., No. 91-16733 Guly 16, 1993). The two judges
in the majority were able to do so only by improperly substituting
their policy judgments for those of the EEOC and by
misconstruing, or, in one instance, completely disregarding, prior
case law.
V/ In one recent period, five major decisions hostile to civil rights were
handed down by the Supreme Court only to be overturned by Congress in the
Civil Rights Restoration Act of 1991. See Patterson v. McLean Credit Union,
491 U.S. 164 (1989); Lorance v. AT&T Technologies, Inc., 490 U.S. 900
(1989); Martin v. Wilks, 490 U.S. 755 (1989); Wards Cove Packing Co. v.
Atonio, 490 U.S. 642 (1989); Price Waterhouse v, Hopkins, 490 U.S. 228
(1989).
2la
This circuit, with its enormous immigrant population, a
large proportion of whom arrived here only recently, is now the
only circuit in the nation in which an employer may adopt a
discriminatory English-only rule without even articulating a
business justification to support it. Unfortunately, the growth
[14481] of the immigrant population and the present mood of anti-
immigrant backlash mean that English-only rules are likely to
become more prevalent. In overriding the EEOC’s determination
that such rules are generally discriminatory, the Spun Steak panel
subverted one of the basic goals of Title VII of the Civil Rights
Act of 1964, the elimination of discrimination on the basis of
national origin. Accordingly, I dissent from the court’s refusal to
rehear Spun Steak en banc.
I. Background.
Plaintiffs Priscilla Garcia and Maricela Buitrago are
production line workers at Spun Steak Company ("Spun Steak"),
a California corporation that produces poultry and meat products
for wholesale distribution. Plaintiff Local 115, United Food and
Commercial Workers International Union ("Local 115"), is the
collective bargaining agent representing Spun Steak employees.
Of the thirty-three workers employed at Spun Steak,
twenty-four are Spanish-speaking. Virtually all of Spun Steak’s
Spanish-speaking employees are Hispanic. Their command of
English varies greatly: two employees speak no English, others
have limited English proficiency, while some such as Garcia and
Buitrago speak English fluently.
In September 1990, an English-only rule was instituted at
Spun Steak. The rule prohibited employees from speaking Spanish
on the job except during lunch and other breaks. Both Garcia and
Buitrago were subsequently reprimanded for violating the English-
only rule. Local 115 protested the rule and unsuccessfully
requested that it be rescinded.
After investigating discrimination charges filed by Garcia,
Buitrago, and Local 115, the Equal Employment Opportunity
Commission found that there was reasonable cause to believe that
Spun Steak violated Title VII of the Civil Rights Act of 1964 in
adopting its English-only rule. In accordance with the [14482]
EEOC finding, Garcia, Buitrago, and Local 115, on behalf of all
22a
Spanish-speaking employees of Spun Steak (collectively, the
“Spanish-speaking employees"), filed suit in federal district court
alleging a violation of Title VII and requesting injunctive relief.
The Spanish-speaking employees, in accordance with the EEOC
Guideline pertaining to English-only rules, made out a prima facie
case of national-origin discrimination by demonstrating that Spun
Steak had instituted an English-only rule, while Spun Steak
attempted to rebut their showing by demonstrating a business
justification for the rule. The opposing sides filed cross-motions
for summary judgment, and the district court ruled in favor of the
employees. The court found that Spun Steak’s English-only policy
had a disparate impact on Hispanic workers without sufficient
business justification, in violation of Title VII.
Spun Steak appealed the ruling to this court. The EEOC,
as the federal agency charged with the interpretation and
enforcement of Title VII, filed an amicus curiae brief arguing that
Spun Steak’s English-only policy violated Title VII, and urging
that the district court judgment be affirmed. The arguments of
plaintiffs and the EEOC were rejected, however, by a majority of
the Spun Steak panel. The majority did not reach the question of
whether there was a business justification for the rule. Rather,
over the dissent of Judge Boochever, it invalidated the applicable
EEOC Guideline and held that English-only rules are permissible
with respect to bilingual employees.
II. The Adverse Impact of English-Only Rules.
Title VII prohibits discrimination in employment based on
race, color, sex, religion and national origin, 42 U.S.C. § 2000e-
2. The close relationship between language and national origin led
the EEOC to classify discrimination based on "linguistic
characteristics" as unlawful under Title VII (29 C.F.R. § 1606.1),
a classification which the Spun Steak panel does not challenge.
See Fragrante v, City and County of [14483] Honolulu, 888 F.2d
591, 595 (9th Cir. 1989), cert, denied, 494 U.S. 1081 (1990)
(approving § 1606.1).
The EEOC Guideline at issue in Spun Steak applies Title
VII to English-only rules. 29 C.F.R. § 1606.7 (1991). It permits
the use of such rules only where a business justification exists.
The Guideline reflects the EEOC’s determination that rules
23a
prohibiting the use of foreign languages generally have an adverse
impact on protected groups. As the Guideline explains, “[t}he
primary language of an individual is often an essential national
origin characteristic,” so that an English-only rule may “create an
atmosphere of inferiority, isolation and intimidation.” 29 C.F.R.
§ 1606.7(a).
The Spun Steak majority disagrees with the EEOC’s
determination. My colleagues have in their wisdom concluded that
bilingual employees do not suffer significant adverse effects from
an English-only rule because they have the “choice” of which
language to employ, and can thus “readily comply” with the rule.
Slip op. at 7538. This analysis demonstrates a remarkable
insensitivity to the facts and history of discrimination. Whether or
not the employees can readily comply with a discriminatory rule
is by no means the measure of whether they suffer significant
adverse consequences. Some of the most objectionable
discriminatory rules are the least obtrusive in terms of one’s ability
to comply: being required to sit in the back of a bus, for example;
or being relegated during one’s law school career to a portion of
the classroom dedicated to one’s exclusive use. See McLaurin vy.
Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851 (1950).
Nonetheless, the majority focusses narrowly upon the ability to
comply, substituting its own unenlightened conception of
discriminatory impact for that adopted by the EEOC on the basis
of its store of knowledge, wisdom and experience in the field of
employment discrimination.
Language is intimately tied to national origin and cultural
identity: its discriminatory suppression cannot be dismissed as
[14484] an “inconvenience” to the affected employees, as Spun
Steak asserts. See generally Piatt,
Toward Domestic Recognition
of a Human Right to Language, 23 Hous. L. Rev. 885, 894-98
(1986) (discussing relationship between language and culture);
Karst, Paths to Belonging: The Constitution and Cultural Identity,
64 N.C. L. Rev. 303, 351-57 (1986). Even when an individual
learns English and becomes assimilated into American society, his
native language remains an important manifestation of his ethnic
identity and a means of affirming links to his original culture. See
Karst, supra, at 351-57. English-only rules not only symbolize a
24a
rejection of the excluded language and the culture it embodies, but
also a denial of that side of an individual's personality.”
Thus, the Spun Steak majority’s emphasis on the practical
effects of English-only rules is misplaced. Whether or not an
individual is, in practice, capable of speaking only English is not
the important consideration here by any means. What is far more
important is the impact of the prohibition itself. As the EEOC
correctly determined, being forbidden under penalty of discharge
to speak one’s native tongue generally has a pernicious effect on
national origin minorities.
Finally, it should be noted that the imposition of an
English-only rule may mask intentional discrimination on the basis
of national origin. See Gutierrez, 838 at 1040 (citing authorities).
Even those who support the majority’s view acknowledge that
"language can be a potent source of racial and ethnic
discrimination." Gutierrez vy, Municipal Court, 861 F.2d 1187,
1192 (9th Cir. 1988) (Kozinski, J., dissenting from denial of
rehearing en banc). History is replete with language conflicts that
attest, not only to the crucial importance [14485] of language to its
speakers, but also to the widespread tactic of using language as a
Surrogate for attacks on ethnic identity.” As these examples
2/ As one commentator observed: “Language is the lifeblood of every
ethnic group. To economically and psychologically penalize a person for
practicing his native tongue is to strike at the core of ethnicity.” Comment,
Native-Born Acadians and the Equality Idea], 46 La. L. Rev. 1151, 1167 (1986).
3/ The harsh repression of Catalan and the Basque language in Spain under
the dictatorship of Francisco Franco is one obvious example. See Basques Are
Waging A Difficult Battle to Preserve Language, Dallas Morning News, Apr. 3,
1993, at 25A (Franco dictatorship “banned public use of Basque and other
regional languages"). Other more current examples include the repression of the
Ukrainian, Georgian and Belorussian languages by the former Soviet government;
the current repression of the Albanian language in Kosovo (formerly part of
Yugoslavia); and the extended repression of the Kurdish language in Turkey.
See, ¢.g., Shiller, Albanian Students Defy Serb Rule, Toronto Star, Nov. 2,
1992, at Al4; Robinson, Restless Ukraine Strains at the Bonds of Soviet Empire,
Fin. Times, Sept. 4, 1990, at 6 (citing "Moscow's systematic repression of the
(continued...)
25a
reveal, the urge to repress another’s language is rarely, if ever,
driven by benevolent impulses.
Recognizing the discriminatory potential inherent in rules
prohibiting the use of foreign languages, the EEOC has attempted
to provide victims with legal rights. Spun Steak’s misguided
removal of that protection, based largely on two judges’ subjective
judgment that the discriminatory impact of English-only rules is
"not significant,” seriously undermines one of the basic goals of
Title VII.
Ill. “Compelling” Reasons for Invalidating the EEOC Guideline.
The EEOC Guideline at issue in Spyn Steak provides that
an employee makes out a prima facie case of national origin
discrimination by proving that the employer has adopted an
English-only rule. See 29 C.F.R. § 1606.7(b) (1991). The
resulting presumption of discrimination is rebuttable, however. An
English-only rule will be upheld if the employer shows that it is
supported by a business justification. Jd, Thus, instead of
imposing a more onerous per se rule, the Guideline [14486] creates
a framework of shifting burdens. Given the history of national
origin discrimination in this country, the rule is surely a moderate
and reasonable one.
In invalidating the EEOC Guideline, the Spun Steak
majority virtually ignores the long-standing rule that EEOC
Guidelines "constitute "the administrative interpretation of [Title
VII) by the enforcing agency,’ and [that] consequently they are
‘entitled to great deference."" Albemarle Paper Co, v. Moody,
422 U.S. 405, 431 (1975), quoting Griggs v. Duke Power Co.,
401 U.S. 424, 433-434 (1971). See also Espinoza v, Farah Mfg.
Co,, 414 U.S. 86, 94 (1973) (EEOC Guideline entitled to
deference unless “there are ‘compelling indications that it is
wrong"); EEOC v, Commercial Office Products Co,, 486 U.S.
107, 115 (1988) ("EEOC’s interpretation of ambiguous language
3/(...continued)
Ukrainian language"); Turkish-Kurdish Agonies, Wash. Post, July 3, 1993, at
A22 (discussing cultural repression of Kurds and the denial of Kurdish language
rights).
need only be reasonable to be entitled to deference"). Though
acknowledging that only “compelling indications” that the
Guideline was erroneous would justify rejecting it, the majority
makes only a token effort to abide by this standard, dedicating less
than a page to describing its “compelling” reasons for invalidating
the Guideline.“
In its short discussion of the topic, the Spun Steak majority
lists four justifications for rejecting the Guideline, none of which
is persuasive, let alone compelling. Slip op. at 7542-43. First,
the majority claims to follow Garcia vy, Gloor, 618 F.2d 264 (Sth
Cir. 1980), cert. denied, 449 U.S. 1113 (1981) [hereinafter
"Gloor"], in which the Fifth Circuit did not even consider the
EEOC Guideline (since none existed at the time), but only
described how a court would rule in the absence of agency
construction of Title VII. Second, unable to find spe- [14487]
cific evidence that the Guideline was erroneous, the majority
contents itself with quoting general observations indicating
Congress’ disinclination to infringe on the independence of
employers and unions except to correct discriminatory practices.
Slip op. at 7542-43 (quoting United Steelworkers of America,
AFL-CIO vy, Weber, 443 U.S. 193, 206 (1979)). Here, the
majority ignores the obvious fact that correcting a discriminatory
practice is precisely what the EEOC was trying do. In any event,
if such self-evident and general statements are sufficient to override
the deference due EEOC Guidelines, then every Guideline is in
grave jeopardy.
Third, and most incomprehensible, the majority objects to
the presumption of disparate impact contained in the EEOC
Guideline. It does so not on the merits of the presumption, but on
4/ Spun Steak's dismissive treatment of the EEOC rule is unprecedented
within the Ninth Circuit. This Court has always cited the Guidelines with
approval. See Pragante v. City and County of Honolulu, 888 F. 2d 591, 595 (9th
Cir. 1989), cert. denied, 494 U.S. 1081 (1990); Jurado v. Eleven-Fifty Corp.,
813 F. 2d 1406, 1411 (9th Cir. 1987).
5/ In fact, the Guideline at issue here was enacted shortly after Gloor,
probably in order to reverse the effect of that decision. The majority simply
ignores this history.
the basis of the uncontroversial and irrelevant proposition that in
disparate impact cases plaintiffs have the burden of proving the
discriminatory effect of the challenged policies. The panel's
"reasoning" constitutes a total non-sequitur.” There is simply no
connection between the elementary proposition stated by the
majority -- that plaintiffs have the burden of proof — and the
majority’s deduction therefrom that the EEOC is barred from
(1) making generalized findings regarding the effects of particular
discriminatory policies, and (2) codifying those findings in a rule
that such policies are unlawful unless justification exists in
particular cases. In effect, the majority holds that the agency is
without authority to determine that English-only rules and similar
discriminatery practices are invalid generally.” The majority
apparently believes [14488] that the question of the validity of a
widespread discriminatory practice must be decided over and over
again on a case by case basis in a private lawsuit each time a new
employer adopts it. The majority’s remarkably narrow view of the
EEOC’s authority is reminiscent of courts of the 1930s which
6/ The majority states that “the Supreme Court has held that a plaintiff
must prove the alleged discriminatory effect before the burden shifts to the
employer. The EEOC Guideline at issue here contravenes that policy by
presuming that an English-only policy has a disparate impact in the absence of
proof.” Slip op. at 7543.
7/ Under the majority's unique approach, an EEOC Guideline stating, for
example, that rules requiring employees to be at least six feet tall are presumed
to have a disparate impact on women would be held invalid even though the
Supreme Court had held that height and weight requirements have a disparate
impact on women and the factual or statistical issue is the same in all cases. See
Dothard v. Rawlinson, 433 U.S. 321, 329-31 (1977) (finding that Alabama prison
system's height and weight requirements disparately impact women solely on the
basis of statistical evidence).
It is clear that the real basis of the majority's objection to the EEOC
presumption is that the majority does not agree with the Guideline on the merits.
This substantive disagreement is at least rational (though the majority's view is
wrong), but it should not be transformed into a wholly basciess attack on agency
authority to promulgate general rules.
28a
refused to accept agency findings regarding labor and food
standards.” It is a particularly odd view for the 1990s given the
broad authority that courts have allowed agencies to exercise in
recent years.
Finally, the Spun Steak majority cites as a reason for its
decision the absence of legislative history regarding Title VII's
applicability to English-only rules. Slip op. at 7543. With this
argument, the majority elevates legislative history to a new height.
Those who believe that even affirmative legislative history is, in
general, not compelling may be surprised to learn that its absence
can be so crucial as to constitute a basis for invalidating an agency
rule. See, ¢.g., United States v, Thompson/Center Arms Co,, 112
S.Ct. 2102, 2111 (1992) (Scalia, J., concurring in judgment)
(describing legislative history as “that last hope of lost
interpretative causes, that St. Jude of the hagiology of statutory
construction"). [14489]
IV. Related Cases.
The Spun Steak majority contends that its analysis is
“consistent” with Jurado vy, Eleven-Fifty Corp., 813 F.2d 1406
(9th Cir. 1987), and that it "follows" Gloor. Slip op. at 7538,
7542. In contrast, the majority dismisses Gutierrez vy, Municipal
Court, 832 F.2d 1031 (9th Cir. 1988), reh’g en banc denied, 861
F.2d 1187 (1988), vacated as moot, 490 U.S. 1016 (1989), in a
footnote, without pretending to counter, or even examine, the
case’s reasoning. Slip op. at 7536 n. 1. In none of the three
instances does the majority deal fairly with the case cited.
Gutierrez, as a unanimous Ninth Circuit decision on precisely the
same issue as faced the Spun Steak panel, merited examination for
its reasoning and persuasive value. Jurado and Gloor, while not
spurned as is Gutierrez, are misused through selective reference.
Five years ago, this court in Gutierrez unanimously upheld
the EEOC Guideline at issue in Spun Steak, holding that English-
8/ Any concern for an employer's right to a fair hearing and individualized
consideration is satisfied by the business justification provision of the EEOC rule,
which allows the employer to articulate the specific reasons supporting an
English-only policy. See Siip op. at 7544-45 (Boochever, J., dissenting in part).
29a
only employment rules generally have an adverse impact on
national origin groups. See 861 F.2d at 1040. The plaintiff in
Gutierrez, however, quit her job before her employer's appeal
reached the Supreme Court. As a result, the Court vacated our
decision as moot. Gutierrez, 490 U.S. 1016 (1989).
Unconstrained by precedential considerations, the Spun Steak
majority wrongly declined even to consider Gutierrez’ reasoning.
While it is true that Gutierrez lacks binding precedential value, it
still represented the thinking of this court. As such, it was
deserving of consideration. Gutierrez not only constituted a
decision of a three-judge panel, but it had survived an en banc call.
See Gutierrez, 861 F.2d 1188 (Kozinski, J., dissenting from denial
of rehearing en banc) (joined by Judge Thompson and Judge
O’Scannlain). Gutierrez was binding precedent within this circuit
and might well have remained so, but for the happenstance of an
employee’s job decision.” As far as our court is concerned,
[14490] Gutierrez represented its official position, following
completion of all our review proceedings. As such, it merited
more than a dismissive footnote in Spun Steak.
As the Spun Steak majority should have known, the
validity of a case’s reasoning is unaffected when it is vacated as
moot. See Wright, 13A Federal Practice & Procedure § 3533.10
(1984). The Spun Steak majority cites no new caselaw to justify
its different result, making it clear that the only significant change
since Gutierrez is that of panel composition: a Gutierrez en banc
dissenter, assigned to Spun Steak and having by luck of the draw
picked up a second vote, was thereby transformed into the author
of a two-judge majority opinion. Moreover, Gutierrez has proved
persuasive to other courts: it was cited with approval in Smothers
y. Benitez, 806 F. Supp. 299, 307-08 (D.P.R. 1992), Pemberthy
y. Beyer, 800 F. Supp. 144, 159 (D.N.J. 1992), and Asian Am.
Business Group v, City of Pomona, 716 F. Supp. 1328, 1330
(C.D. Cal. 1989). These three cases involved issues related to the
question decided in Gutierrez; Spun Steak, ruling on the identical
issue as Gutierrez, should at least have accorded it fair
consideration.
9/ Of course, the Supreme Court might have granted certiorari and
affirmed or reversed — we will never know
30a
Spun Steak’s use of the Fifth Circuit’s Gloor decision is
equally unacceptable. In discussing its reasons for invalidating the
EEOC Guideline, the majority professes to be guided by Gloor.
That decision, however, pre-dated the Guideline at issue. It is
disingenuous for the Spun Steak majority to profess to follow a
case which did not and could not have ruled on the validity of the
affected Guideline. The Gloor court, in fact, specifically noted the
absence of any controlling EEOC Guideline in justifying its ruling.
Gloor, 618 F.2d at 268 n. 1." [14491] Rather than following
Gloor, it should be clear that Spun Steak’s rejection of the EEOC
Guideline represents a radical recasting of Gloor in disregard of
Gloor’s own express self-imposed limitations and of the deference
due EEOC Guidelines.
Finally, there is Spun Steak’s reliance on Jurado. Before
discussing Jurado in detail, though, one should first note something
that the Spun Steak majority fails to mention: the Jurado court
cites with approval the exact EEOC Guideline which Spun Steak
rejects. See Jurado, 813 F.2d at 1411. An examination of
Jurado’s facts shows why this is so.
Jurado involved a bilingual radio announcer, Valentine
Jurado, whose show was in English, with Spanish words and
phrases occasionally added. A consultant hired by the station
determined that this sprinkling of Spanish hurt the station’s ratings
because it confused listeners about the station’s programming.
Accordingly, the station program director asked Jurado to stop
using Spanish in his broadcasts. Jurado refused, the radio station
fired him, and he brought suit under Title VII.
No reasonable person would suggest that Title VII requires
the operator of an English language radio station to permit a hired
broadcaster to broadcast in whole or in part in another language,
contrary to the radio station’s policies. As the Jurado court
recognized, the radio station’s limited English-only rule “was a
10/ The Fifth Circuit took care to point out that:
[The EEOC) 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.
Gloor, 618 F.2d at 268 n. 1.
3la
programming decision motivated by marketing, ratings, and
demographic concerns.” 813 F.2d at 1410. As such, it easily
passed the business justification requirement. See Gutierrez, 838
F.2d at 1041. There is no analogy or comparison that can
legitimately be drawn between the situation in Jurado and that in
Spun Steak. For example, Spun Steak has never required its
employees to speak or even understand English as a condition of
employment, and it makes no claim that the ability to speak or
understand English is a bona fide occupational qualification
(BFOQ). In Jurado, [14492] by contrast, the employer would
without question have refused to employ a non-English-speaker, or
even a person who spoke English with a marked foreign accent;
such a job refusals would not have constituted national origin
discrimination but simply the implementation of an appropriate job
qualification. Cf, Fragrante vy. City of Honolulu, 888 F.2d 591,
596 (9th Cir. 1989) ("“[a}Jn adverse employment decision may be
predicated upon an individual’s accent when--but only when--it
interferes materially with job performance").'”’
Spun Steak fails to discuss these aspects of Jurado, even
though Jurado is clearly the principal Ninth Circuit precedent on
English-only rules. By not mentioning that Jurado specifically
applies to the adoption of a “business-related English-only rule,”
813 F.2d at 1411, or that it relies on the EEOC Guideline, the
Spun Steak majority renders Jurado unrecognizable.
L)/ Sumuarly, a commentator who supports the reasoning in both Gutierrez
and Jurado explains that the right to speak one's native language is:
bounded by the actual requirements of the job and business at issue. In
certain situations, it is clearly inappropriate for someone to speak a
language other than English in the workplace. . . . [A] bilingual stage
actor cast in the role of Hamlet would not have a right to deliver the
soliloquy in Spanish. . . . [The actor's use of Spanish] would constitute
poor performance, and the employer could properly discipline or
discharge a poorly performing employee.
Perea, English-Only Rules and the Right To Speak One's Primary Language in
the Workplace, 23 J. L. Ref. 265, 299 (1990).
32a
Conclusion.
By failing to take this case en banc, this court disrupts the
uniform national application of an important EEOC Guideline,
drastically handicaps the agency's ability to adopt other Guidelines,
distorts or ignores Ninth Circuit caselaw in a highly sensitive area,
and allows two of its judges to substi- [14493] tute their policy
views regarding the subject of national-origin discrimination for
the EEOC’s experienced, reasoned and expert judgment. As a
result, we rack up one more judicial defeat for those who most
need and deserve the protection of the courts. I therefore
respectfully dissent.
33a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C-91-1949 RHS
PRISCILLA M. GARCIA, MARICELA
BUITRAGO, and LOCAL 115, UNITED
FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO,
Plaintiffs,
v.
SPUN STEAK COMPANY,
a California corporation,
Defendant.
Edward M. Chen, Ann Brick, Matthew A. Coles, Alan L.
Schlosser, American Civil Liberties Union Foundation of Northern
California, Inc., Christopher Ho, The Employment Law Center,
a Project of the Legal Aid Society of San Francisco, William H.
Orrick, II, Ruben L. Iniguez, Coblentz, Cahen, McCabe &
Breyer, Thornton C. Bunch, Jr., Bunch & Grimes, for plaintiffs.
ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT ON THE FIRST
AND THIRD CLAIMS FOR RELIEF OF
THEIR COMPLAINT AND DENYING
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT
34a
The motion of plaintiffs Priscilla M. Garcia, Maricela
Buitrago, and Local 115, United Food and Commercial Workers
International Union, AFL-CIO, for summary judgment on the first
and third claims for relief of their complaint and the cross-motion
of defendant Spun Steak Company for summary judgment came on
regularly for hearing in the above-entitled court oa Friday,
October 4, 1991, the Honorable Robert H. Schnacke, presiding.
William H. Orrick, III of Coblentz, Cahen, McCabe & Breyer and
Thornton C. Bunch, Jr. of Bunch & Grimes appeared on behalf of
plaintiffs; Douglas J. Farmer of the United States Equal
Employment Opportunity Commission appeared as Amicus Curiae;
and James A. Carter of Hendrickson, Higbie & Carter appeared on
behalf of defendant. Following argument of counsel and
consideration of the parties’ moving and responding papers, the
Court finds as follows:
3 There are no genuine issues as to any material fact
with respect to the first and third claims for relief in plaintiffs’
complaint nor defendant’s Counterclaim For Declaratory Relief;
2. State law issues substantially predominate in each
and every other claim for relief in plaintiffs’ complaint; and
3. Plaintiffs’ motion to strike defendant’s evidence is
denied.
For good cause appearing, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED AS FOLLOWS:
1. Plaintiffs’ motion for summary judgment on the
first and third claims for relief of their complaint is granted on the
basis that there is no genuine issue as to any material fact and
plaintiffs are entitled to a judgment as a matter of law. For the
same reason, plaintiffs are entitled to judgment in their favor on
defendant’s Counterclaim For Declaratory Relief.
*: Defendant’s motion for summary judgment is
denied in its entirety.
3. The Court will not exercise supplemental
jurisdiction over plaintiffs’ second, fourth, fifth, sixth, seventh,
eighth, and ninth claims for relief, and all of said claims are
dismissed without prejudice pursuant to 28 U.S.C. § 1367(c) (2).
35a
DATED: October 10, 1991.
/s/ Robert H. Schnacke
United States District Judge
APPROVED AS TO FORM:
HENDRICKSON, HIGBIE & CARTER
By /s/ Karen T. Dutton
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C-91-1949 RHS
PRISCILLA M. GARCIA, MARICELA
BUITRAGO, and LOCAL 115, UNITED
FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO,
Plaintiffs,
v.
SPUN STEAK COMPANY,
a California corporation,
Defendant.
Edward M. Chen, Ann Brick, Matthew A. Coles, Alan L.
Schlosser, American Civil Liberties Union Foundation of Northern
California, Inc., Christopher Ho, The Employment Law Center,
a Project of the Legal Aid Society of San Francisco, William H.
Orrick, III, Ruben L. Iniguez, Coblentz, Cahen, McCabe &
Breyer, Thornton C. Bunch, Jr., Bunch & Grimes, for plaintiffs.
JUDGMENT
37a
Pursuant to the Order Granting Plaintiffs’ Motion For
Summary Judgment On The First And Third Claims For Relief Of
Their Complaint And Denying Defendant’s Motion For Summary
Judgment, the Court found that the English-only policy established
by defendant Spun Steak Company in writing on September 28,
1990, and amended in writing on June 25, 1991, constitutes
unlawful discrimination in the terms and conditions of employment
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seg., and the California Fair
Employment and Housing Act, California Government Code
section 12900 et seq.
ACCORDINGLY, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED AS FOLLOWS:
1. judgment is hereby <ntered in favor of plaintiffs
Priscilla M. Garcia, Maricela Buitrago, and Local 115, United
Food and Commercial Workers, International Union, AFL-CIO,
and against defendant Spun Steak Company, a California
corporation, on the first and third claims for relief of plaintiffs’
complaint, and on defendant’s Counterclaim For Declaratory
Relief. The Court grants plaintiffs’ request for declaratory relief
that defendant’s English-only policy constitutes unlawful
discrimination in the terms and conditions of employment in
violation of Title VII of the Civil Rights Act of 1964 and the
California Fair Employment and Housing Act..
2. Defendant Spun Steak Company is permanently
enjoined from further maintaining, enforcing or reestablishing its
English-only policy or any policy which requires that defendant’s
employees speak only English in the performance of their work
duties.
38a
DATED: October 10, 1991.
/s/ Robert H. Schnacke
United States District Judge
APPROVED AS TO FORM:
HENDRICKSON, HIGBIE & CARTER
By /s/ Karen T. Dutton
Attorneys for Defendant
Spun Steak Company
39a
APPENDIX D
42 U.S.C. § 2000e-2. Unlawful employment practices.
Employer Practices:
(a) It shall be an unlawful employment practice 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 employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
Status as an employee, because of such individual’s race,
color, religion, sex, or national origin.
---0---
29 C.F.R. Ch. XIV - Equal Employment Opportunity
Commission
PART 1606—GUIDELINES ON DISCRIMINATION BECAUSE
OF NATIONAL ORIGIN
§ 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, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national origin
group. The Commission will examine with particular concern
charges alleging that individuals within the jurisdiction of the
Commission have been denied equal employment opportunity for
40a
reasons which are grounded in national origin considerations, such
as (a) marriage to or association with persons of a national origin
group; (b) membership in, or association with an organization
identified with or seeking to promote the interests of national
origin groups; (c) attendance or participation in schools, churches,
temples or mosques, generally used by persons of a national origin
group; and (d) because an individual’s name or spouse’s name is
associated with a national origin group. In examining these
charges for unlawful national origin discrimination, the
Commission will apply general title VII principles, such as
disparate treatment and adverse impact.
§ 1606.2 Scope of Title VII protection.
Title VII of the Civil Rights Act of 1964, as amended,
protects individuals against employment discrimination on the basis
of race, color, religion, sex or national origin. The title VII
principles of disparate treatment and adverse impact equally apply
to national origin discrimination. These Guidelines apply to all
entities covered by title VII (collectively referred to as
“employer”).
Real
§ 1606.7 Speak-English-only rules.
(a) When applied at all times. A rule requiring
employees to speak only English at all times in the workplace is a
burdensome term and condition of employment. The primary
language of an individual is often an essential national origin
characteristic. Prohibiting employees at all times, in the
workplace, from speaking their primary language or the language
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
4la
working environment.’ Therefore, 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 a rule requiring that employees speak only in English at
certain times where the employer can show that the rule is justified
by business necessity.
(c) Notice of the rule. It is common for individuals
whose primary language is not English to inadvertently change
from speaking English to speaking their primary language.
Therefore, if an employer believes it has a business necessity for
a speak-English-only rule at certain times, the employer should
inform its employees of the general circumstances when speaking
only in English is required and of the consequences of violating the
rule. If an employer fails to effectively notify its employees of the
rule and makes an adverse employment decision against an
individual based on a violation of the rule, the Commission will
consider the employer’s application of the rule as evidence of
discrimination on the basis of national origin.
oval
See CD 71-446 (1970), CCH EEOC Decisions { 6173, 2 FEP Cases,
1127; CD 72-0281 (1971), CCH EEOC Decisions { 6293.
42a
APPENDIX E
UNITED STATES OF AMERICA
CONGRESSIONAL RECORD
PROCEEDINGS AND DEBATES OF THE 102d CONGRESS,
FIRST SESSION
WASHINGTON, WEDNESDAY, OCTOBER 30, 1991
Vol. 137, No. 158
SENATE
(Legislative day of Tuesday, October 29, 1991)
The Senate met at 11:30 a.m., on the expiration of the
recess, and was called to order by BOB GRAHAM, a Senator
from the State of Florida.
a
SCHEDULE
Mr. MITCHELL. Mr. President, today during the period
for morning business, two Senators are to be recognized to address
the Senate for 10 minutes each. When the period for morning
business closes at 12 noon today, the Senate will resume
consideration of S. 1745, the civil rights bil!, at which time the bill
will be considered under the terms of a unanimous-consent
agreement entered late last night and printed on page 2 of today’s
Calendar of Business.
Geoad
Mr. DeCONCINI. I commend Senator KENNEDY for his
leadership in the area of civil rights and would like to know if it
is also his understanding that the Supreme Court’s holding in Saint
Francis College versus Al-Khazraji is a correct interpretation of
section 1981?
43a
Mr. KENNEDY. Yes, I believe the decision is a correct
interpretation of section 1981.
Mr. DeCONCINI. Is there anything in the substitute to
S. 1745 that would affect in any way the Court's holding in this
case?
Mr. KENNEDY. No, the bil! does not in any way repeal
the St. Francis College decision. The discrimination described by
the court in Saint Francis College is, in effect, national origin
discrimination, which is the term used in title VII of the Civil
Rights Act to identify this particular type of discrimination.
Mr. DeCONCINI. Is it the Senator’s understanding that
“national origin described by the court in St. Francis upon
characteristics common to a specific ethnic group, such as
ancestry, culture, linguistic characteristics-including language and
speech accent--physical characteristics, and birthplace?
Mr. KENNEDY. Yes, that is my understanding.
Mr. DeCONCINI. Consistent with this interpretation,
would the Senator agree that Congress intended that, to state a
cause of action under section 1981, it is sufficient to allege
discrimination based solely upon national origin.
Mr. KENNEDY. Yes. I agree.
Mr. DeCONCINI. I thank the Senator. I also have another
matter that I would like to discuss. This is the issue of workplace
rules which require the speaking of only one language. Many of
my constituents have brought to my attention an increasing
problem with nonjob related discipline and termination of people
for speaking languages other than English in the workplace. Is the
Senator aware of the EEOC regulations dealing with this problem?
Mr. KENNEDY. Yes, the EEOC promulgated such
regulations in 1980.
Mr. DeCONCINI. These regulations reflect the fact that
the primary language of an individual is often an essential national
origin characteristic. Does the Senator agree that these regulations
found in 29 CFR 16067.7 provide a sound and effective method
for dealing with this problem?
Mr. KENNEDY. Yes, I agree that this regulation has
worked well during the past 11 years it has been in effect.
Mr. DeCONCINI. Does the substitute to S. 1745 in any
way adversely affect the EEOC regulation on language use in the
workplace.
Mr. KENNEDY. No, it does not.
Mr. DeCONCINI. Therefore, if S. 1745 is passed and
signed into law by the President, the EEOC regulations would be
consistent with title VII as amended by S. 1745.
Mr. KENNEDY. That is correct.
Mr. DECONCINI. I would like to thank my distinguished
colleague from Massachusetts. That is all I have.
cou
45a
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.