English Only Policies and Hispanic Employees

The 10th Circuit issued an important decision late last week in Maldanado v. City of Altus, Oklahoma, 2006 WL52805, a case in which bilingual Hispanic employees challenged the city's "English Only" policy applicable to city employees.  The EEOC and ACLU joined as amici when the plaintiff employees appealed the lower court's dismissal of challenges under Title VI, Title VII, 42 USC 1981, and 42 USC 1983.  The 10th Circuit upheld the dismissal under Title VI and the First Amendment aspect of the section 1983 claim, but reversed and remanded for further proceedings in connection with Title VII disparate treatment and disparate impact claims, intentional discrimination in violation of section 1981 and denial of equal protection under section 1983.

The City had adopted the following "English Only" policy in 2002:

To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity's limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.

The City gave three primary reasons for adopting the policy:
1) workers and supervisors could not understand what was being said over the City's radios ···; 2) non-Spanish speaking employees, both before and after the adoption of the Policy, informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand because they did not know if their co-workers were speaking about them; and 3) there were safety concerns with a non-common language being used around heavy equipment. The city showed no record of having experienced difficulties of these sorts prior to adopting the policy.

Defendants offered evidence that the restrictions in the written policy were actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish. But Plaintiffs offered evidence that employees were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish speaker was present, even during breaks, lunch hours, and private telephone conversations. Plaintiff Lloyd Lopez stated in his deposition that “we were told that the only time we could speak Spanish is when two of us are in a break room by ourselves, and if anybody other than Hispanic comes in, we are to change our language.”  In addition he said, “We no longer can speak about anything in general in Spanish around anybody. Even if we were on the phone talking to our wives and we were having a private conversation with them and somebody happened to walk by, we were to change our language because it would offend whoever was walking by.”

The EEOC has adopted guidelines on English-only workplace rules, 29 C.F.R. § 1606.7. Under the relevant provisions of the guideline: (1) an English-only rule that applies at all times is considered “a burdensome term and condition of employment,”§ 1606.7(a), presumptively constituting a Title VII violation; and (2) an English-only rule that applies only at certain times does not violate Title VII if the employer can justify the rule by showing business necessity, § 1606.7(b). According to its brief, the EEOC's rationales for the guideline are: (1) English-only policies “may ‘create an atmosphere of inferiority, isolation, and intimidation’ that could make a ‘discriminatory working environment’; (2) “English-only rules adversely impact employees with limited or no English skills ··· by denying them a privilege enjoyed by native English speakers: the opportunity to speak at work"; (3) “English-only rules create barriers to employment for employees with limited or no English skills;" (4) “English-only rules prevent bilingual employees whose first language is not English from speaking in their most effective language"; and (5) “the risk of discipline and termination for violating English-only rules falls disproportionately on bilingual employees as well as persons with limited English skills."

The decision is exceptionally well-written and well-reasoned.  Judge Seymour's opinion (concurring with the majority in most respects but dissenting from the dismissal of the First Amendment claim under section 1983) provides a thoughtful discussion of the Mt. Healthy causation issue and other aspects of protected employee speech.