Written Testimony of Douglas J. Farmer Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart

Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace

The Need for Agency Guidance and Technical Assistance on Topics Covered in This Paper

In May of this year, the Bureau of Labor Statistics (BLS) reported that there were 25 million foreign-born persons in the United States labor force, making up 16.1 percent of the total workforce.¹ Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012, and Asians accounted for 23.7 percent. Remarkably, the proportion of the foreign-born labor force made up of 25 - 54 year olds (75.6 percent) was higher than for the native-born labor force (63.4 percent). Nearly a quarter of foreign-born workers in the labor force over 25 years old had not completed high school.

These workplace demographics have created a critical new set of challenges for employers in areas such as: (1) discrimination and harassment prevention; (2) development of effective discrimination and harassment complaint procedures; (3) compliance with legally required notice, posting, and policy distribution requirements; (4) national origin discrimination issues resulting from immigration-related employment practices; and, (5) implementation of rules limiting the use of foreign-language in the workplace.

The sections that follow identify critically needed employer guidance in these areas, including technical support that EEOC can provide to facilitate compliance.

Employer Difficulties Establishing Prevention Programs for Limited and Non-English Speaking Workforces and How the Commission Can Help

There appears to be little or no EEOC guidance addressing the multitude of issues faced by employers attempting to implement harassment and discrimination prevention programs for limited or non-English speaking employees. These issues include: (1) the cost and technical expertise required to implement such programs; (2) the general unavailability of legally required notices, postings, and policies in multiple languages; and (3) the dearth of bilingual EEOC personnel available to provide technical assistance for employers, including foreign language anti-harassment training for employees. To date, employers have largely been left on their own to obtain the technical support necessary to implement effective prevention programs.

The absence of enforcement guidance is surprising in two respects. First, the number of foreign born workers in the labor force continues to accelerate. As the Bureau of Labor Statistics pointed out in its May, 2013, publication, the proportion of the foreign-born labor force made up of 25 - 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Second, it is not uncommon for some of the most egregious forms of workplace harassment and discrimination to be initiated by foreign born workers with little or no prior exposure to United States anti-discrimination laws. Many foreign born workers come to the workforce with little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training. Conversely, many foreign born workers are unfamiliar with right to be free from unlawful harassment and discrimination, or are accustomed to reprisal for reporting misconduct or participating in workplace investigations.

A. Obstacles to Prevention - Cost and Technical Expertise.

Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs. In the case of one client whose employees speak over 60 languages, obtaining the technical expertise necessary to implement discrimination and harassment complaint procedures has been difficult if not impossible. Other clients state that even where a single foreign language in the workplace is spoken, a wide range of dialects can make concepts such as "hostile work environment" and "quid pro quo" harassment impossible to convey.

Smaller clients complain that they lack the technical expertise necessary to translate anti-discrimination and harassment policies, including critical complaint procedures integral to the prevention of discrimination and harassment. For cost reasons, many clients state that they rely on the untrained assistance of secretaries, friends, and family members to provide translation of policies, required notices, and training programs. When such translation (or interpretation) services are scrutinized, often under the pressures of litigation, it is not uncommon find basic legal concepts such as "unwelcome conduct" or "severe and pervasive" to be given unintelligible or inaccurate meanings. The result is often a policy that is ineffective at preventing discrimination or harassment.

A number of administrative agencies have substantially eased the burden on employers by making available key policies, notices, forms and postings in multiple languages, including less common Asian languages. For example, the San Francisco Office of Labor Standards Enforcement (https://sfgsa.org/), which administers San Francisco's paid sick leave and health care ordnances, makes key forms, notices and postings available to employers in Vietnamese, Tagalog, Korean, Chinese, and Spanish. The California Division of Labor Standards Enforcement (www.dir.ca.gov), which administers California wage and hour laws, has provided similar assistance for employers.

EEOC could do the same. An anti-harassment policy, for example, could be made available to employers in multiple languages, including less common languages such as Vietnamese, Tagalog, Korean, Mandarin and Cantonese that carry a higher price tag for translation. The policy could be made available at no cost to employers on EEOC's website. Such a policy would cover best practices, including:

• A thorough explanation of prohibited conduct.
• Protection against harassment.
• An effective complaint process.
• Confidentiality.
• Assurance of prompt, thorough and impartial investigation.
• Assurances of prompt, corrective action.

For employee trainings, pre-printed PowerPoint programs could be created by EEOC and made available on its website for distribution to employers and their trainers in multiple languages. Other agencies, such as San Francisco's Office of Labor Standards Enforcement (OLSE), already make PowerPoint programs available on the agency's website for employer use and provide trainers for such programs. Additionally, EEOC should undertake aggressive employee recruitment programs to hire bilingual staff who can assist employers by providing on-site training in a broad range of languages and other technical expertise.

Employer Difficulties Meeting Policy, Notice, and Posting Requirements for Limited and Non-English Speaking Workforces and How the Commission Can Help

Several employer clients have raised concerns about the absence of guidance for determining when legally required policies, notices, and postings must be created and implemented in a foreign language. These employers express concern about the lack of guidance in two areas: (1) whether the number of non-English speaking employees in the workforce can be sufficiently small that translation is either not required or the responsibility for translation can be placed on the employee; and, (2) whether basic fluency measures can be developed to determine whether translated documentation is required for any particular employee. The issue comes up most frequently in the following areas:

• Posting of anti-discrimination and harassment notices required by statute;
• Implementation of EEO and anti-harassment policies;
• Development and implementation of effective complaint procedures for reporting and resolving complaints of discrimination and harassment;
• Development and implementation of effective anti-discrimination/anti-harassment training programs for employees;
• Providing legally required notice to employees; and,
• Other legally required communications to employees.

Several employer clients have asked that EEOC address whether employers can meet their legal obligations described above by requiring employees to certify that they will take responsibility for translation of all legally required documentation. These employers point out that doing so will allow them to circumvent what could otherwise become an intrusive process of assessing the level of language fluency of its employees.

In the event that certification is not permitted, EEOC should provide employers with guidelines for assessing English language fluency in order to determine their translation obligations. Currently, there is a total absence of guidance from any agency - state or federal - on the topic of assessing English language "fluency" of an employee. Several employer clients have urged the use of objective factors to make such an assessment. These can include the language the employee uses most often to communicate with management, or the language used by the employee to complete new hire paperwork. Other clients suggest the use of such assessments in combination with "numerical" cutoffs, whereby the employer is exempted from any translation obligation based on the percentage of the workforce capable of understanding the documentation in English (e.g., where less than 25 percent of the employer's workforce primarily speaks a language other than English the employer need not translate the documentation).

Various state laws have attempted to define when translation of legally required documentation is required. The California Labor Code, for example, uses percentages of employees in the workforce who "primarily" speak a language other than English. Uncertainty surrounding the term "primarily" has frequently led to litigation. The California Fair Employment and Housing Act (FEHA) uses percentages of employees in the workforce who communicate with the employer in a language other than English to determine the employer's translation obligation. The standard appears to be more easily managed than the "primary" language standard.

Employer Difficulties Interpreting Coverage of Unfair Immigration-Related Employment Practices Under National Origin Discrimination Laws -- Commission Regulations and Enforcement Guidance

EEOC regulations provide that that in circumstances "where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin," they are prohibited by Title VII.² The regulation contemplates both disparate treatment and disparate impact forms of discrimination prohibited by Title VII.

EEOC enforcement guidance provides only cursory guidance for employers on the topic. This contrasts with a dramatic escalation of laws in states such as California making it unlawful for employers to discriminate against employees through the use of certain unfair immigration-related employment practices. For example, effective January 1, 2014, California employees may bring civil actions against employers who retaliate against them for asserting any legal right through use of unfair immigration-related employment practices. Such actions authorize employees to recover damages, including attorney's fees and costs, in addition to suspension of the employer's business license for up to 90 days.³ Attorneys who engage in such conduct are subject to disbarment, suspension, and other disciplinary action by the state bar.

Several of our employer clients anticipate that immigration-related employment practices will become the focus of employment discrimination litigation in the near future. These employers believe that EEOC should develop clear guidance on such practices, including when such conduct constitutes national origin discrimination (as distinct from citizenship discrimination). Practices for which guidance will be important, and where employers believe they are particularly vulnerable to claims of national origin discrimination, include the following:

• Requesting more documents from some employees than others, which could be perceived as national origin discrimination;
• Requesting different documents from some employees than others, which could be perceived as national origin discrimination;
• Rejecting reasonably genuine-looking documents for some employees but not others, which could be perceived as national origin discrimination;
• Requesting that specific documents be produced by some employees (i.e., eliminating choice of documentation) but not others, which could be perceived as national origin discrimination;
• Use of the E-verify system in ways not authorized by law for some employees but not others, which could be perceived as national origin discrimination;
• Terminating some employees but not others based on a "tentative non-confirmation" resulting from use of the E-verify system, which could be perceived as national origin discrimination; and,
• Terminating some employees based on receipt of a Social Security Administration "no-match" letter but not others, which could be perceived as national origin discrimination.

Employer Difficulties Interpreting Permissible Restrictions on Use of Foreign Language in the Workplace and How the Commission Can Help

For more than 30 years, EEOC regulations have acknowledged two forms of employer "English-only" rules: those applied at all times in the workplace, and those applied only at certain times.⁴ Although few of our employer clients have adopted the first form of the rule, the consequences for employers of a misstep in adopting either type of the rule, even with the best of intentions, can be catastrophic. Clear, detailed guidance from EEOC on the parameters for adoption of such rules is therefore critical.

EEOC enforcement guidance provides several useful guidelines for employers. The Compliance Manual acknowledges at least four examples of "business necessity" that could justify the limited application of an English-only rule: (1) customer communications; (2) emergency situations; (3) efficiency of work assignments; and, (4) monitoring of performance.⁵ Nevertheless, the guidelines fail to address many of the most difficult issues currently facing employers. These include the following:

A. Application of the "Presumed Liability" Rule.

The regulations deem an English-only rule applied at all times to be a burdensome term and condition of employment that is "presumed to violate Title VII."⁶ The "presumed liability" rule triggers when employees are required to speak English "at all times in the workplace."⁷

Employers have traditionally raised two primary concerns about the regulation. First, a number question the continued validity of the rule in light of the Ninth Circuit's ruling in Garcia v. Spun Steak.⁸ In that case, the Ninth Circuit rejected the regulation, emphasizing that "the Supreme Court has held that a plaintiff in a disparate impact case must prove the alleged discriminatory effect before the burden shifts to the employer." The Court held that such a requirement contravenes the policy set out by the Supreme Court by presuming that an English-only policy has a disparate impact in the absence of proof. In rejecting the regulation, the Court held: "We do not reject the English-only rule Guideline lightly . . . [however] we are not aware of, nor has counsel shown us, anything in the legislative history to Title VII that indicates that English-only policies are to be presumed discriminatory."⁹

Apart from the Ninth Circuit's criticism of the regulation, our employer clients continue to struggle with the ambiguity of the phrase "at all times in the workplace." The concerns arise in two key situations: (1) where the employee is physically present in the "workplace," but is engaged in personal time and is therefore not under the control of the employer; and, (2) where the employee is under the control of the employer, but engaged in work outside of the employer's physical "workplace."

EEOC's position on the presumption of liability should be clarified for each of these two situations. For example, many employers limiting the use of a foreign language exclude from the rule employee "personal time" that occurs at the workplace. Such time can include meal and rest breaks, and periods immediately before or after a shift. EEOC should clarify that such rules do not constitute rules "applied at all times" sufficient to presume liability under 1606.7(a). Stated another way, such employers should be permitted to demonstrate that a language rule excluding personal time is justified by business necessity. Employers limiting the use of a foreign language also frequently exclude from the rule work that takes place outside of the employer's traditional "workplace." For example, two coworkers may be required to telephone one another after hours to determine who will work a shift the following day. Under these circumstances, most employers either ignore or do not enforce the language rule. EEOC should clarify that such rules do not constitute rules "applied at all times" sufficient to presume liability under 1606.7(a).

B. Application of Business Necessity Rule and Acceptable Model Language.

As an alternative to English-only rules applied at all times, EEOC regulations provide that employers may adopt rules requiring employees to speak only in English at certain times, provided the rule is justified by "business necessity."¹⁰ EEOC's Compliance Manual acknowledges at least four examples of "business necessity" that could justify the limited application of an English-only rule: (1) customer communications; (2) emergency situations; (3) efficiency of work assignments; and, (4) monitoring of performance.¹¹

Nevertheless, EEOC provides little practical guidance for employers on how to properly tailor language rules to meet the needs of a business. Several of our employer clients have commented that EEOC can help employers to better understand the process of "narrowly tailoring" language rules by providing detailed examples. At a minimum, EEOC should consider developing factual scenarios covering a broad spectrum of acceptable practices, including the following:

• Limitations on application of the rule to work time;
• Exclusion of employee personal time from the rule, such as meal periods, rest breaks, and time periods immediately before and after the employee's shift;
• Limitations on application of the rule to specific job categories;
• Limitations on application of the rule to emergency situations;
• Limitations on application of the rule to specific facilities;
• Limitations on application of the rule to time periods when specific tasks are performed;
• Limitations on application of the rule to specific areas of a facility (e.g., where specific workplace safety rules are in place);
• Exclusion from the rule of communications performed off premises, outside of standard work hours;
• Exclusions from the rule where customers, emergency situations, or other matters are better served through communication in a foreign language;
• Limitations on the rule to address specific customer issues where the customer has asked to address the matter.

An additional concern raised by some employer clients is the perception that much of EEOC's enforcement guidance on language restrictions consists of information presented in the abstract. Several clients have asked whether EEOC would consider developing model policy language that employers could use to address language issues in the workplace, much like the National Labor Relations Board (NLRB) has done with its sample social media policy. For example, EEOC could develop suggested policy language that employers could incorporate into employee handbooks or personnel policy manuals to address the business necessity issues that employers have historically struggled with. Examples could include the following:

• "If you speak English and you need to communicate with an English-speaking customer, please speak with them in English, unless otherwise requested by the customer."
• "When speaking with customers or fellow Associates, please make sure you are sensitive to others who may want to ask you a question or join your conversation. If needed, switch to a common language to be inclusive and respectful."
• "Be mindful when speaking to coworkers in a language other than English that customers, Associates, Supervisors and others may only understand English. Be mindful that like "whispering" to a coworker in front of others, or putting your hand over your mouth while talking to a coworker in the presence of others, that you may be perceived to be non-inclusive or disrespectful. If needed, switch to a common language to be inclusive and respectful."
• "If you do not understand English adequately, please inform a Team Leader so that communications may be translated for you."

C. Bilingual Capability and Language Fluency.

Many of our clients report that they have observed enormous variation in the ability of employees to speak both English and a foreign language fluently. For most employers, the application of a language restriction to employees who are fully bilingual appears to present few legal issues. The view is consistent with the position taken by the Fifth Circuit in Garcia v. Gloor,¹² and the Ninth Circuit in Garcia v. Spun Steak,¹³ both of which acknowledged the absence of a burdensome term or condition of employment when English-only rules are applied to fully bilingual employees.

Several clients have asked whether EEOC could provide detailed guidance on the role of bilingualism in the application of English-only rules. Indeed, some employers point to the silence of EEOC on the topic as a contributing factor to the proliferation of stereotypes about language fluency. It is all too frequently presumed, for example, that bilingual ability is absolute - that much like a light switch that can be turned on and off, an employee can either speak English fluently or they cannot. Commission guidance could reinforce that language fluency is a matter of degree, and that the level of an individual's language fluency can determine the extent to which the imposition of a language restriction can create "an atmosphere of inferiority, isolation and intimidation based on national origin . . ."¹⁴

D. Notice Requirement.

EEOC regulations provide that failure to "effectively notify" employees of an English-only rule will be "evidence of discrimination" if the employer makes an adverse employment decision against an individual based on a violation of the rule.¹⁵ EEOC enforcement guidance acknowledges that "meetings," "e-mail" and "postings" are sufficient methods for providing notice. However, EEOC fails to specify the amount of notice required or factors for employers to consider in determining what amount of time constitutes acceptable notice. Employers would benefit from EEOC guidance on timeframes for acceptable notice, including factors that would require more or less time.

Footnotes

¹ U.S. Department of Labor, Bureau of Labor Statistics, "Foreign-Born Workers: Labor Force Characteristics - 2012" (May 22, 2013).

² 29 C.F.R. § 1606.5. See also, Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 82, 92 (1973).

³ Cal. Lab. Code § 1019.

⁴ 29 C.F.R. § 1606.7.

⁵ EEOC Compliance Manual, § 13-V(C) ("English Only Rules").

⁶ 29 C.F.R. § 1606.7(a).

⁷ 29 C.F.R. § 1606.7(a).

⁸ 998 F.2d 1480 (9th Cir. 1993).

⁹Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9th Cir. 1993).

¹⁰ 29 C.F.R. § 1606.7(b).

¹¹ EEOC Compliance Manual, § 13-V(C) ("English Only Rules").

¹² 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981).

¹³ 998 F.2d 14809 (9th Cir. 1993).

¹⁴ 29 C.F.R. § 1606.7.

¹⁵ 29 C.F.R. § 1606.7(c).