Employer’s English Language Requirement is Discrimination?

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A Little Background

On June 9, 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Wisconsin Plastics, Inc., for employment discrimination under Title VII of the Civil Rights Act of 1964. The claims allege discrimination based on “national origin,” because the employer required its employees to be proficient in English. The EEOC is a federal agency that enforces federal workforce employment discrimination laws, and announced its lawsuit in a press release issued the same day.

After completing individual observations of each employee, the company determined that certain employees of Hispanic and Hmong backgrounds lacked any English proficiency. Those employees were written up, and were terminated. The EEOC noted that each of the terminated employees had previously received a satisfactory performance rating at their latest annual review.

The Pretextual Legal Basis

The Civil Rights Act of 1964 prohibits discrimination based national origin. It does not specifically prohibit discrimination based on an ability to proficiently speak or understand English. In this case, however, EEOC attorney John C. Hendrickson claimed the English proficiency requirement was simply a superficial appearance placed on an otherwise unlawful act. He reasoned, “When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

Although he doesn’t use the commonly accepted legal jargon, the EEOC attorney is essentially claiming the the stated reasons for the employees’ termination was just “pretext.”

What is Pretext?

In legal circles, pretext is a reason provided for justifying an action that is false, and given to cover up or mask the person’s true motives and intentions. When an employee or former employee claims discrimination, the employee must prove every element of its claims. Once the employee establishes its prima facia case, the employer then has the opportunity to provide a legitimate, non-discriminatory reason for its actions. At that point, the employee must prove that the employer’s stated reasons were pretext for an otherwise illegal discriminatory motive or intent, to prevail on its claims.

Pretext is generally established through: (i) statistics, (ii) comparisons of similarly situated circumstances; (iii) written or oral statements indicating biases; or (iv) false reasoning. The employee must show that the employer’s actions were more likely motivated by a discriminatory reason than the stated reason, or that the employer’s explanation simply is not credible.

Pretext is a legitimate legal theory, and employers should not use pretextual arguments to justify discriminatory actions.

Are the EEOC’s Claims Just Pretext?

The Civil Rights Act of 1964 was designed to end true discrimination. It was not intended to prevent employers from requiring that employees be able to speak English. Employers have legitimate reasons for requiring employees to speak and understand English. Employers need to be able to effectively communicate with employees, to be able to verbally direct their actions, and to be able to provide safety instructions and warnings. Employees may need to be able to communicate with customers, suppliers, and vendors. These are all legitimate reasons for requiring an employee to speak English.

Moreover, discrimination based on English proficiency requirements is not prohibited discrimination. An employer may legitimately discriminate on English proficiency. In the Wisconsin Plastics, Inc., case, the government is not arguing that discrimination based solely on English proficiency is illegal. Instead, the EEOC alleges that the company had a secret, undisclosed, and illegal motive to actually discriminate against Hispanic and Hmong employees, which was secretly grounded on the employees “national origin.” Yet, nothing in the EEOC’s press release gives any support or justification for this argument. It does not allege that Hispanic or Hmong employees who could speak English were given negative reviews, or were terminated. Rather, the claims appear that only those employees who were not proficient at any level of English were terminated (regardless of their national origin).

Finally, the current administration of the federal government is either directing, encouraging, or allowing federal agencies to actively push a very liberal agenda. The recent actions of the IRS, the Boarder Patrol, the Department of Homeland Security, and the EEOC make this obvious. There has been a recent explosion of lawsuits by the EEOC against business to prevent dubious claims of “discrimination,” which ultimately require compliance with, or adoption of, liberal policies.

In other words, are these EEOC discrimination lawsuits just pretext for the promotion of liberal policies by federal agencies?

The Real Problems of This Case, and How to Avoid It

Wisconsin Plastics, Inc., appears to have gotten in trouble because it changed its English proficiency requirements mid-stream, and then made broad employment decisions based on these changed policies. It had already hired the employees who could not speak English, and those employees were apparently able to do the job well enough to receive satisfactory performance ratings. It’s unclear how the company was able to hire these employees, direct and instruct their actions, and provide employee reviews, before implementing the English proficiency requirement. However, it is clear that the company had managed to do it.

The company may have very legitimate reasons for changing its English proficiency requirements, including: (i) promoting safety; (ii) minimizing cost of translation and having interpreters on hand; (iii) encouraging team unity and production; and (iv) facilitating necessary communication within the company and with customers, suppliers, and vendors. Unfortunately, it will have to incur substantial legal fees, and deal with the lost production and distractions the lawsuit will involve, in order to establish that these legitimate reasons for its English proficiency requirements are sincere, and not pretext for implementing hidden, discriminatory practices.

I hope Wisconsin Plastics, Inc. is successful in this challenge.

Your business can potentially avoid these issues by:

  • Creating and documenting valid safety and company reasons for requiring employees to be proficient in English;
  • Conduct all hiring interviews, employee reviews, and company business in English; and
  • Avoid making mass employment decisions affecting current employees, based on factors (such as English proficiency) that were not previously a factor in hiring or performance decisions.

If you are a business or employer with employment law questions, please call the Business Law Group today!

The Business Law Group only represents businesses and employers in employment law matters. The Business Law Group does not represent individual employees in employment matters.


About the Author:

Adam is licensed to practice law in Colorado, and is the founder of the Business Law Group.