Wednesday, June 15, 2016

Why Title VII May Not Apply to Most English-Only Rules

The application of Title VII of the Civil Rights Act of 1964 to workplace English-only rules continues to generate widespread disagreement, both inside and outside the courts. In this post, I discuss an issue that has been overlooked in evaluating English-only rules -- one that, if addressed, may well lead most courts to conclude that Title VII does not apply to the run-of-the-mill English-only rule.

Most English-only rules are challenged under Title VII's disparate impact framework. The disparate impact framework requires a plaintiff to first establish that a specific employment practice results in a disparate impact on members of a protected group. For example, a screening test has a disparate impact if African American test takers fail the test at a higher rate than white test takers. If the plaintiff establishes disparate impact, then the practice is unlawful unless the employer can show that it is job related and consistent with business necessity.

The Supreme Court has clarified that disparate impact claims are not covered by section 703(a)(1) of Title VII. In particular, in Smith v. City of Jackson, 544 U.S. 228 (2005), the Court explained that the parallel provision of the Age Discrimination in Employment Act (section 4(a)(1)) does not "encompass disparate-impact liability." Since Smith relied on Title VII precedent to interpret identical ADEA language, it is obvious that the Court's rejection of disparate impact claims under section 4(a)(1) of the ADEA means that disparate impact claims also are not cognizable under section 703(a)(1) of Title VII.

This is terribly significant because the range of practices covered under 703(a)(2), the disparate impact provision, is narrower than under 703(a)(1), the disparate treatment provision. Title VII prohibits disparate treatment with respect to "terms, conditions, and privileges of employment." The disparate impact provision, by contrast, only applies to a practice that deprives an individual of "employment opportunities or otherwise adversely affects his status as an employee." Thus, if an English-only rule does not deny an individual "employment opportunities or otherwise affect[] his status as an employee," then it cannot be challenged under Title VII's disparate impact provision.

In Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993), the Ninth Circuit concluded, in reliance on the Supreme Court's decision in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), that a burdensome term or condition of employment does not "deprive any individual of employment opportunities" or "otherwise adversely affect his status as an employee." Thus, the Ninth Circuit concluded that a burdensome English-only rule must be challenged under 703(a)(1). Not having the benefit of the Supreme Court's decision in City of Jackson, however, the Ninth Circuit concluded that disparate impact theory applies not only to 703(a)(2) but also to 703(a)(1).

Other than Spun Steak, the most prominent federal court of appeals decision addressing English-only rules is Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006). In Maldonado, the Tenth Circuit concluded that the plaintiffs could establish a Title VII violation by showing that the defendant's English-only policy resulted in an unlawful disparate impact on Hispanic workers by creating a hostile work environment. An employee's work environment is a term of employment, so, as with the analysis followed by the Ninth Circuit in Spun Steak, an English-only rule resulting in a hostile work environment can be challenged only under section 703(a)(1) of Title VII.

In light of City of JacksonSpun Steak, and Maldonado, it follows that English-only rules are not subject to disparate impact analysis because they do not deprive an individual of "employment opportunities or otherwise adversely affect[] his status as an employee." Maldonado was decided after the Supreme Court's decision in City of Jackson. Nevertheless, the Tenth Circuit did not consider whether disparate impact claims are cognizable under 703(a)(1), and if not, what the implications are for challenging an English-only policy. As far as I know, this issue has been overlooked by the courts (and presumably by employers wishing to defend such policies).

That disparate impact claims should only be cognizable with respect to the deprivation of employment opportunities and other adverse effects on employment status makes perfect sense. In the context of hiring, promotions, and discharge, for instance, it is a rather straightforward matter in most cases whether an employment practice has a discriminatory impact. This is because an individual is either hired or not, either promoted or not, and so on, making it easy to determine who is, or isn't, harmed by the policy. 

By contrast, with respect to terms and conditions of employment, the determination of whether a practice has a disparate impact can be a legal nightmare. English-only rules illustrate this predicament, as disparate impact claims challenging such policies frequently present perplexing questions about how to determine who has been impacted by the policy and thereby assess the existence of disparate impact. This arises, in particular, with respect to bilingual employees, as in the Spun Steak case, who can easily comply with such policies. Such difficulties have led to the concoction of automatic presumptions of disparate impact, which contravene the statutory burdens of proof. 

Rather than adopting extra-statutory measures, the most sensible interpretation of Title VII may be the outright rejection of applying disparate impact analysis to English-only claims.

Even if English-only rules cannot be challenged under Title VII's disparate impact framework, they can still be challenged under Title VII's disparate treatment framework. Such limited coverage would mean that English-only rules are susceptible to challenge under Title VII only when adopted in bad faith with the intent to discriminate against a protected group. In Maldonado, for instance, the court concluded that there was enough evidence to sustain a disparate treatment claim. However, the English-only rule at issue in Maldonado likely represents an exception to the general principle discussed here that English-only rules are not covered by Title VII.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.