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The Equal Employment Opportunity Commission (EEOC) has once again successfully used this recipe to cook up a meal which America's business community will find both costly and difficult to digest. Last month, the carcass of a bankrupt company, Premier Operator Services of DeSoto, Texas, became more grist for the EEOC's language-rights litigation mill. Premier Operator Services was a family-run business which provided operator services for long-distance carriers. The firm's jobs averaged $8.60 per hour in addition to medical and dental benefits, paid vacations, and a pleasant air-conditioned environment. (An old ad still on the Internet noted that "many of the employees bring their Bibles to work to read when they aren't busy." This unusual fringe benefit was, however, not the reason the firm was sued by the EEOC.) Premier Operator Services is now out of business — having declared bankruptcy in 1999. The broke and battered company was still put on trial on July 28 because of a complaint filed by the EEOC. This little family company had a rule requiring its employees to speak English while on company premises. Eric Brown, the company president, was concerned that some Hispanic employees were making derogatory remarks in Spanish about coworkers. The EEOC believes that such English-only rules violate Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on "national origin." But Brown had good reason to think he was on solid legal ground. The Fifth Circuit Court of Appeals, which includes Texas, had upheld an employer's strict English-only rule in 1980. In 1993, a similar, but less sweeping, English-only rule enforced by a California firm had also been approved by the Ninth Circuit Court of Appeals (the Spun Steak case). Black employees of a small meat-product firm had grown tired of being insulted in Spanish. The company decided to impose an English-only rule for the day shift and a Spanish-only policy for the night shift in order to put a stop to the ethnic slurs. It is worth noting that no complaints were filed about Spun Steak's Spanish-only policy. Yet the same firm's English-only policy produced years of litigation. Premier Operator Services, like Spun Steak, had sound reason for its English-only rules. Employers are required by law to take steps to prevent what is considered a "hostile working environment" and can be held legally responsible for any discriminatory behavior by their employees even if the company was ignorant of that behavior. Insults between coworkers can cost a company a lot of money. Premier Operator Services failed to reckon with one basic fact: The EEOC does not care how many times it has lost language-rights cases. The agency continues to file complaints anyway. The EEOC, like most government agencies, sends over a letter of complaint and expects to see the white flag of surrender waved forthwith. They have good reason for such confidence. After all, even a successful defense of one's position in court is an expensive proposition. The accused, when seeking legal counsel, might well be asked, "how much justice can you afford?" Since a company's job is to produce something besides litigation, most simply give in. It is just another cost of doing business. Rare is the firm that doesn't knuckle under. Such firms are generally small businesses whose owner chooses to risk his livelihood over a matter of principle. In this case, the EEOC's wrath was kindled against Brown's company because of Albert Estrada, then a 17-year-old part-time employee who also attended the Dallas Independent School District's law magnet high school. Estrada complained to the EEOC in 1996 because, as he later told the Dallas Morning News, "speaking Spanish is my culture." Estrada was fired on February 29, 1996; the same day, Brown received notice from the EEOC that charges had been filed. Brown later claimed that Estrada was not fired, merely shifted to "on-call" status as punishment for chronic tardiness. Premier Operator Services dropped its English-only policy in response to the complaint. The firm required its supervisors to devote themselves full time to monitoring conversations between employees instead of sometimes fielding calls themselves. Mr. Brown declined an EEOC offer to settle out of court by paying damages to Estrada and to twelve other former employees who claimed to have been fired for opposing the policy. Brown felt that the people involved "weren't injured. They were paid for every hour they worked." The EEOC disagreed with Brown and filed suit against the company in January 1998. They claimed the company's English-only policy was not a "business necessity." "Business necessity" is another slippery term that tends to mean what some lawyer wants it to mean. For example, Premier Operator Services' English-only rule arguably wasn't necessary because the firm might have hired supervisors fluent in any tongue that any employee preferred to use. The case went to trial, if a case in which a bankrupt firm offered no defense can be called a trial, this past July. In fact, the only company official to testify did so on behalf of the EEOC. The quality of the other testimony in this case may be evaluated by an excerpt from the judge's ruling proudly cited by the EEOC's own press release. The judge complained that a sign announcing the company's language policy was posted at the building entrance next to another sign that stated that "Absolutely no guns, knives or weapons of any kind" were allowed on company grounds, thus "implying a combined concern about the conduct of those persons who speak a language other than English" and "setting the scene for stigmatization." If sign placement has indeed become a legal issue, feng shui specialists — folks who study how to place objects in relation to one another — might profitably apply for posts at the EEOC. Last month, the former employees of Premier Operator Services were awarded $700,000. This sum more than tripled the EEOC's previous record for damages in a case of this nature, a record established by a consent decree in Illinois earlier this year. Ida Castro, the EEOC's chairwoman, boasted in a September 19 press release that "this significant ruling serves to remind us that language differences must not make employees the target of . . . even well-intended language policies when there is no real business necessity or justification for such policies" (emphasis added). Let's pause for a moment and think this statement through. The EEOC has essentially declared that "heads, the EEOC wins; tails, the company loses." Had Mr. Brown not taken steps to stop Spanish speakers from calling people names in Spanish, the EEOC could have sued his company for tolerating a "hostile working environment." Because he did do something to stop the name-calling, but imposed a policy with which the EEOC (but not the courts) disagreed, his firm was still sued by the EEOC. Juan Figueroa of the Puerto Rican Legal Defense and Education Fund, a group that has filed at least five lawsuits against English-only rules, claims that "Spanish is closely and inseparably linked to national identity. The politics of language are as much a defining issue for this country . . . as is affirmative action and some of the issues traditionally associated with African Americans." Most people would contest this notion and Congress has never officially adopted it. But the EEOC has embraced the idea with a vengeance. Complaints against English-only policies have increased from 77 in 1996 to 253 in 1999. This year, 355 complaints have already been filed with the EEOC. The agency's general counsel, C. Gregory Stewart, has warned that "cases involving English-only rules, restrictive language policies and language or accent discrimination are litigation priorities for the Commission." Executives all over America, especially corporate attorneys, will no doubt blanch when they read of this $700,000 verdict in an English-only case. The EEOC's many attorneys will certainly mention it during any settlement negotiations. They just won't bother to mention the details of their tainted victory. After all, how strong will people think the bully really is if they learn he won his big fight by picking on somebody who was defenseless? |
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he Clinton-Gore administration
has perfected its recipe for pushing its radical agenda: First, come up
with a far-fetched interpretation of any law. Next, find a company that
can't fight back. Combine. Voila, a court precedent that can be
used to bully other firms for years to come.
