Two federal appeals courts have rejected the idea that a private employer’s requirement that employees speak English on the job is racial or national origin discrimination, in Garcia v. Spun Steak Co. (1993) and Garcia v. Gloor (1980).
But the EEOC and the Justice Department could care less, and they’ve convinced a number of renegade trial judges to ignore those prior court rulings. The EEOC is suing the Salvation Army for requiring its employees to speak English. Both Houses of Congress voted to stop that lawsuit, in an amendment added to an appropriations bill. House Speaker Nancy Pelosi has moved to kill that amendment through backroom political maneuvering, at the behest of colleagues like Charles Gonzalez, who claims the bill to protect the Salvation Army is “discriminatory,” and Luis Gutierrez, who claims it is “bigotry and prejudice.”
When the EEOC sues private employers for expecting their employees to speak a language their colleagues and supervisors can understand, it claims that the courts should ignore prior appellate court rulings, and instead follow its own “national origin” guidelines, which treat English-only rules as a form of “national origin harassment” and racially “disparate impact.” Amazingly, trial courts in Massachusetts, Chicago, and elsewhere have accepted this absurd argument, even though the Supreme Court long ago rejected the idea that EEOC guidelines supersede prior court decisions or have the force of law, as it made clear in rejecting EEOC guidelines in its decisions in EEOC v. Arabian American Oil Co. (1991) and General Electric v. Gilbert (1976).
The Justice Department has also overstepped its boundaries, by promulgating “guidelines” requiring accommodation of non-English speakers under Title VI of the Civil Rights Act. The Justice Department guidelines suggest that recipients of federal funds, such as health care providers, can be liable for “disparate impact” discrimination if they fail to provide translation services for just a single non-English speaker. Influenced by such guidelines, New York Lawyers for the Public Interest is now demanding that drugstores hire bilingual interpreters.
But the Justice Department guidelines are doubly vulnerable to legal challenge. First of all, the Supreme Court cast doubt on whether “disparate impact” claims, which do not require a showing of discriminatory intent, are even valid under Title VI in Alexander v. Sandoval (2001), which barred any damage claims or private lawsuits for “disparate impact” under Title VI. Second, it is blackletter law, under cases such as Coe v. Yellow Freight (1981), that you cannot base a claim of unintentional or disparate discrimination on just one affected minority group member: You need a large class of affected people. Yet the Justice Department’s guidelines suggest that a health care provider might be liable for not having a translator to accommodate each and every speaker of an obscure language like Hmong that did not even exist in written form until recently.
Even worse, the Education Department, where I used to work as a civil rights attorney, interprets Title VI to require that school districts translate all notices into every conceivable language spoken by even one student or parent using the school system, such as Hmong, and to ignore the cost of oral translations. That is contrary to basic principles of disparate-impact law, which recognize that high cost can be a defense (not even the Justice Department suggests that costs should be ignored), and that an institutional practice that inadvertently harms just a single minority group member is not illegal discrimination unless it systematically excludes members of that person’s minority group.