Catch-22 on Language
The EEOC, employers, and “English-only.”

By Jim Boulet Jr., executive director, English First
November 14, 2001 10:40 a.m.

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.