Employment Law

Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993)

The defendant, Spun Steak Co., employs 33 workers, 24 of whom are Spanish-speaking. Two of the Spanish speakers speak no English. Plaintiffs Garcia and Buitrago are production line workers for the defendant, and both are bilingual. After receiving complaints that some workers were using their second language to harass and to insult other workers, Spun Steak enacted an English-only policy in the workplace in order to (1) promote racial harmony, (2) enhance worker safety because some employees who did not understand Spanish claimed that they were distracted by its use, and (3) enhance product quality because the USDA inspector in the plant spoke only English. The two plaintiffs received warning notices about speaking Span ish during working hours, and they were not permitted to work next to each other for two months. They filed charges with the EEOC, which found reasonable cause to believe that the defendant had violated Title VII. The district court found in favor of the employees, and Spun Steak appealed. The appellate court reversed, finding that Spun Steak did not violate Title VII in adopting the English-only rule.

The Spanish-speaking employees do not contend that Spun Steak intentionally discriminated against them in enacting the English-only policy. Rather, they contend that the policy had a discriminatory impact on them because it imposes a burdensome term or condition of employment exclusively upon Hispanic workers and denies them a privilege of employment that non-Spanish speaking workers enjoy.

The employees argue that denying them the ability to speak Spanish on the job denies them the right to cul tural expression. It cannot be gainsaid that an individual's primary language can be an important link to his ethnic culture and identity. Title VII, however, does not protect the ability of workers to express their cultural heritage at the workplace. Title VII is concerned only with dispari ties in the treatment of workers; it does not confer substantive privileges. It is axiomatic that an employee must often sacrifice individual self-expression during working hours. Just as a private employer is not required to allow other types of self-expression, there is nothing in Title VII which requires an employer to allow employees to express their cultural identity.

Next, the Spanish-speaking employees argue that the English-only policy has a disparate impact on them because it deprives them of a privilege given by the employer to native-English speakers: the ability to con verse on the job in the language with which they feel most comfortable. It is undisputed that Spun Steak allows its employees to converse on the job. The ability to converse-especially to make small talk-is a privilege of employment, and may in fact be a significant privilege of employment in an assembly-line job. It is inaccurate, how ever, to describe the privilege as broadly as the Spanish speaking employees urge us to do.

The employees have attempted to define the privilege as the ability to speak in the language of their choice. A privilege, however, is by definition given at the employer's discretion; an employer has the right to define its contours. Thus, an employer may allow employees to converse on the job, but only during certain times of the day or during the performance of certain tasks. The employer may proscribe certain topics as inappropriate during working hours or may even forbid the use of certain words, such as profanity. Here, as is its prerogative, the employer has defined the privilege narrowly. When the privilege is defined at its narrowest (as merely the ability to speak on the job), we cannot conclude that those employees fluent in both English and Spanish are adversely impacted by the policy. Because they are able to speak English, bilingual employ ees can engage in conversation on the job. It is axiomatic that "the language a person who is multilingual elects to speak at a particular time is . . . a matter of choice." The bilingual employee can readily comply with the English only rule and still enjoy the privilege of speaking on the job. "There is no disparate impact" with respect to a privi lege of employment "if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference."

The Spanish-speaking employees argue that fully bilingual employees are hampered in the enjoyment of the privilege because for them, switching from one language to another is not fully volitional. Whether a bilingual speaker can control which language is used in a given circumstance is a factual issue that cannot be resolved at the summary judgment stage. However, we fail to see the relevance of the assertion, even assuming that it can be proved. Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class. Rather, Title VII protects against only those policies that have a significant impact. The fact that an employee may have to catch himself or herself from occasionally slipping into Spanish does not impose a burden significant enough to amount to the denial of equal opportunity. This is not a case in which the employees have alleged that the company is enforcing the policy in such a way as to impose penalties for minor slips of the tongue. The fact that a bilingual employee may, on occasion, unconsciously substitute a Spanish word in the place of an English one does not override our conclusion that the bilingual employee can easily comply with the rule. In short, we conclude that a bilingual employee is not denied a privilege of employment by the English-only policy.

By contrast, non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak. As applied "[t]o a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home," an English-only rule might well have an adverse impact. Indeed, counsel for Spun Steak conceded at oral argument that the policy would have an adverse impact on an employee unable to speak English. There is only one employee at Spun Steak affected by the policy who is unable to speak any English. Even with regard to her, however, summary judgment was improper because a genuine issue of material fact exists as to whether she has been adversely affected by the policy. She stated in her deposition that she was not bothered by the rule because she preferred not to make small talk on the job, but rather preferred to work in peace. Furthermore, there is some evidence suggesting that she is not required to comply with the policy when she chooses to speak. For example, she is allowed to speak Spanish to her super visor. Remand is necessary to determine whether she has suffered adverse effects from the policy. It is unclear from the record whether there are any other employees who have such limited proficiency in English that they are effectively denied the privilege of speaking on the job. Whether an employee speaks such little English as to be effectively denied the privilege is a question of fact for which summary judgment is improper.

We do not foreclose the prospect that in some circumstances English-only rules can exacerbate existing tensions, or, when combined with other discriminatory behavior, contribute to an overall environment of discrimination. Likewise, we can envision a case in which such rules are enforced in such a draconian manner that the enforcement itself amounts to harassment. In evaluating such a claim, however, a court must look to the totality of the circumstances in the particular factual context in which the claim arises.

In holding that the enactment of an English-only while working policy does not inexorably lead to an abusive environment for those whose primary language is not English, we reach a conclusion opposite to the EEOC's long-standing position. The EEOC Guidelines provide that an employee meets the prima facie case in a disparate impact cause of action merely by proving the existence of the English-only policy. Under the EEOC's scheme, an employer must always provide a business justification for such a rule. The EEOC enacted this scheme in part because of its conclusion that English-only rules may "create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment."

We do not reject the English-only rule Guideline lightly. We recognize that "as an administrative interpretation of the Act by the enforcing agency, these Guidelines ... constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." But we are not bound by the Guidelines. We will not defer to "an administrative construction of a statute where there are 'compelling indications that it is wrong.""

In sum, we conclude that the bilingual employees have not made out a prima facie case and that Spun Steak has not violated Title VII in adopting an English-only rule as I to them. Thus, we reverse the grant of summary judgment E in favor of Garcia, Buitrago, and Local 115 to the extent it represents the bilingual employees, and remand with = instructions to grant summary judgment in favor of Spun Steak on their claims. A genuine issue of material fact C exists as to whether there are one or more employees rep resented by Local 115 with limited proficiency in English e who were adversely impacted by the policy. As to such I employee or employees, we reverse the grant of summary 5 judgment in favor of Local 115, and remand for further proceedings. REVERSED and REMANDED.

QUESTIONS:

1. Do you agree with the contention that denying a group the right to speak their native tongue denies them the right to cultural expression?

2. Do employees have a "right" to cultural expression in the workplace?

3. Do you agree with the court that an English-only rule is not abusive per se to those whose primary language is not English? Do you believe that it creates a "class system" of languages in the workplace and there fore inherently places one group's language above another's

PLEASE MENTION SERIAL NUMBER IN YOUR ANSWER. LIKE ANSWER 1, ANSWER 2, ANSWER 3