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RD's offense was its policy of requiring employees to speak English while on the job, unless a customer couldn't understand English. The reason for the policy was ensuring a harmonious workplace. Specifically, the diner's management said it had had problems when some Navajo workers routinely spoke about other employees in the formers' language. The EEOC is suing under Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of "race, color, religion, sex, or national origin." Look at that list carefully: Nothing in there about language. Indeed, language is obviously quite distinct from race and national origin. There are members of all races and national origins who speak languages other than English, and members of all of them who speak only English. It's especially hard to see an anti-Indian bias at RD's, when the EEOC's complaint acknowledges that the relevant employees "were originally hired …, at least in part, for their ability to speak Navajo with Navajo customers," and where RD's says that "nearly all" of its employees are Navajo. Ah, but the ingenious lawyers at the EEOC cannot be stopped by a minor problem like the fact that no one is really being discriminated against because of race or national origin. They use their trusty "disparate impact" theory. The ability to speak a foreign language, you see, is statistically correlated here with being a member of a particular ethnic group. So the prohibition against speaking a foreign language will have a disparate impact on that group. The nice thing about this approach is that it doesn't matter that the challenged policy contains no racial or national-origin discrimination on its face, in the reasons for its adoption, or in its application. All that matters is that it has a disproportionate effect. Unfortunately, there's more. While RD's denies that anyone was fired, the EEOC's complaint says that, when some employees refused to follow the policy, they were discharged, disciplined, or docked pay. Therefore, continues the EEOC, RD's has violated another provision of Title VII, which makes it illegal to "retaliate" against someone who is invoking the statute. But wait a minute: This means that RD's is really being sued twice for the same thing. Why would the EEOC do that? Because Title VII limits the kind of relief available in a disparate-impact lawsuit, that's why. But for a retaliation claim, the EEOC thinks — according to its complaint — that it can get full compensatory damages, "including but not limited to, pain and suffering, mental anguish, humiliation, embarrassment, emotional distress, anxiety, inconvenience, and loss of enjoyment of life, in amounts to be determined at trial," as well as "punitive damages for [RD's] malicious conduct or reckless indifference." The commission is demanding a jury trial. The retaliation claim is every bit as ridiculous as the disparate-impact claim. Suppose that an employer had a zero-tolerance anti-theft policy. Suppose an employee violated it, was caught, and was fired or otherwise disciplined. And suppose the employee then challenged the policy as having a disparate impact. That would be silly enough — although, unfortunately, not beyond the pale of the EEOC's and some judges' views of the statute — but would the employer also be liable for retaliation, even after the disparate-impact claim was dismissed? Apparently yes, according to the EEOC, so long as the employee "believed reasonably" that the anti-theft policy had an illegal disparate impact. This fiasco illuminates the need for President Bush to appoint, and the Senate to confirm, a general counsel for the EEOC. Like most of the commission's cases, this one was developed by a field office and sent to the general counsel's office. A decent general counsel would have quietly nixed the case — if for no other reason than the fact that the courts have overwhelmingly rejected the equation of language requirements with national origin discrimination — and that would have been that. But, because there is no general counsel, the case proceeded to the full commission, which approved it. At one point President Bush had announced his intention to nominate Sprint Corp. attorney Donald Prophete to be general counsel, but he grew tired of the delays in moving his nomination forward and withdrew, and no one has been nominated since. Paul C. Light of the Brookings Institution, who monitors presidential appointments, said recently that "There is no question that this is now and will be the slowest administration in history" to get its team in place. For the first part of the Bush administration, the Democrat-controlled Senate was largely to blame; now, however, there is no excuse. The general counsel position at the EEOC is a particularly important one, especially in a Republican administration, because the career bureaucracy is so left-wing. All EEOC complaints must be approved by the general counsel; only about one is six is presented to the full commission for a vote. The general counsel's role in a Republican administration is, then, arguably at least as important as that of the commissioners' themselves. In the case of RD's, of course, the commission itself had its chance, and blew it. There's no excuse for that, and the two Republican commissioners who voted in favor of filing the complaint should be especially ashamed. But a general counsel would have provided a second bite at the apple. This case is also part of a larger and disturbing pattern for the Bush administration's language policy. A multiracial, multiethnic nation with high immigration rates has got to encourage assimilation or it will fall apart. The most important way to assimilate is by speaking English, which the federal government should be encouraging, and allowing other public and private actors to encourage. Yet the president gives speeches in Spanish, and his administration continues to require that all federally funded programs be conducted in languages other than English, insists on bilingual ballots, supports bilingual education — and brings ridiculous lawsuits like this one. — Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia. |
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U.S. Equal Employment Opportunity Commission filed a complaint against
the family-owned RD's Drive In/Exxon in Page, Arizona in late October,
accusing the diner of employment discrimination "on the basis of
national origin and/or race" and of "retaliation" against
the employees for their assertion of protected civil rights. It's a specious
complaint, and it underscores the need for filling a key vacancy at the
EEOC. Now that the Republicans control the Senate, the Bush administration
should move quickly.
