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 hanks to the Equal
Employment Opportunity Commission, employers preferring to avoid
lawsuits face a remarkable catch-22 on language matters.
Any worker
offended by the words of a single employee can sue his employer
for damages. Accordingly, many employers have adopted "English-only"
rules for their employees, in order to better supervise employee
comments.
Yet the EEOC
also insists that employers can be sued by any employee who takes
offense to an "English-only" policy.
The latest
company trapped between the EEOC rock and the EEOC hard place can
be found in Arlington County, Va.
The Washington
Post reports that a day-care center's staff has been rent
asunder by "tensions between aides who are bilingual and supervisors
who cannot understand Spanish." The cause of this discord?
Staff members must not "speak Spanish without a supervisor
or an interpreter in the room."
One sound reason
for this policy can be found in a complaint by the Spanish-speaking
employees that other staff members of the Claremont Academy and
Early Childhood Center's extended-care facility were "making
fun of the children" in their care. Should the academy have
allowed children, parents, or other staff members to be ridiculed
— in English or in Spanish — because of their race, religion,
or sex, it would be inviting an EEOC lawsuit over a hostile working
environment.
Patti Macie,
who runs the extended-day programs in the Arlington County schools,
told the Post (correctly) that "it's the supervisor's
responsibility to be managing the situations related to the children...
[e]veryone needs to be able to know what the employees are saying
to the parents."
A personal-injury
lawyer would gladly remind Macie of her responsibilities —
during a lawsuit — should one of her Spanish-speaking employees
give a parent inaccurate information.
The Post calls the issue of requiring employees to speak
English "complicated," which is a hint that Macie is right.
Federal courts have consistently upheld the right of employers to
require employees to speak only in English, especially while performing
their duties.
Attorney Barnaby
Zall notes
that in a 1998 case, Kania v. Archdiocese of Philadelphia,
"a rule forbidding speaking Polish on the job... prevented
Polish-speaking employees from alienating other employees and church
members." The case of C. Tran v. Standard Motor Products,
that same year, found that such a rule "prevented employees
from using Vietnamese to sexually harass non-Vietnamese-speaking
co-workers."
But the EEOC
is evidently unwilling to accept the numerous court decisions opposing
its own views on English-only.
Generally,
the only way the EEOC wins one of these language complaints is when
the accused can't, or won't, fight back. In the EEOC's January 2001
"Accomplishments
Report for Fiscal Year 2000," the agency boasts of winning
"a $700,000 post-judgment settlement of [a] national origin
discrimination suit." The report does not mention that the
company sued for language discrimination, Premier Operator Services,
was bankrupt
and offered no defense.
Now, you might
think that the inauguration of President Bush changed things at
the EEOC. You'd be mistaken.
On April 20,
2001, the EEOC announced
"a landmark $2.44 million settlement of a class action lawsuit
against the University of Incarnate Word (UIW), a private university
in San Antonio, Texas." The University will pay $1 million
to 18 Hispanic former employees. In addition, UIW agreed to provide
18 tuition waivers for use by the class members or a close relative.
The tuition waivers, valued at $1.44 million, provide for eight
full-time semesters of study at UIW per recipient.
The then-chairman
of the EEOC, Ida Castro, suggested this case should spur "employers
to creat[e] work environments that are conducive to diversity and
putting strategies in place to ease racial and ethnic tensions."
One way to
ease ethnic tensions would be to require employees to speak in only
one language. But this highly effective tool remains forbidden by
the EEOC.
Right now,
the EEOC has a Bush-appointed chairman, Cari Dominguez, who was
confirmed unanimously by the Senate on July 19. But two Clinton
holdovers, Vice Chairman Paul Igasaki and Paul Steven Miller, remain
— Igasaki until July 1, 2002, and Miller until 2004. Another
commission seat, and the post of EEOC general counsel, remain vacant.
Granted, Team
Bush is somewhat busy on other matters these days. But they would
do well to get these vacancies filled — and filled soon —
with people who are willing to obey the law, rather than inventing
it.
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