Written Testimony of Laboni Hoq Litigation Director Asian Americans Advancing Justice

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

Thank you for providing me the opportunity to address the challenges faced by Asian American and other immigrant communities in combating national origin discrimination.

My organization, Asian Americans Advancing Justice - Los Angeles ("Advancing Justice - LA"), formerly the Asian Pacific American Legal Center, was founded in 1983 with a mission to advocate for civil and human rights, provide legal services and education, and build coalitions to positively influence and impact Asian American, Native Hawaiian and Pacific Islander (AA/NHPI) communities. We are a part of an affiliation of Asian American civil rights organizations, including Asian Americans Advancing Justice - Asian Law Caucus in San Francisco, Asian Americans Advancing Justice - Asian American Justice Center in Washington, D.C. and Asian Americans Advancing Justice - Chicago. For many years, our organizations have advocated for the rights of national origin minority groups, including their right to be free from language and other forms of discrimination.

Advancing Justice - LA serves the legal needs of underserved and marginalized AA/NHPI communities, including limited-English proficient (LEP) and monolingual individuals, in two principal ways. First, through our Asian Language Legal Intake Project we provide legal assistance in eight languages: Chinese, Korean, Thai, Vietnamese, Khmer, Tagalog, Spanish and English. Through these language hotlines, we serve between 5,000 and 7,000 people every year.

Second, we engage in impact litigation challenging discriminatory laws and practices, with the goal of creating systemic change and setting positive precedent for the benefit of the communities we serve. We recently collaborated with the EEOC's Los Angeles office to prosecute a national origin discrimination case on behalf of a group of Filipino American employees at a hospital in Central California. We successfully challenged the hospital's enforcement of an English-only policy that singled out Filipino American staff and subjected them to a hostile work environment, including taunting and denigrating treatment from co-workers. The case settled for nearly $1 million, affording the claimants monetary damages for the emotional distress they suffered, and imposed a three-year consent decree that mandates drastic amendments to the policy to ensure that it is narrowly tailored, job-related, and consistent with business necessity. [1] Importantly, the damages derived from the hostile workplace itself, rather than from any other adverse employment action against the Filipino American workers. The case has served to educate employers and employees about language rights in the workplace and the negative consequences of imposing restrictive English-only polices in a multi-cultural workforce.

Indeed, robust enforcement of workplace discrimination laws is essential to ensuring productive and harmonious workplaces where employees can make their maximum contribution to employers' business goals. We therefore commend the Commission for holding this meeting and encourage the Commission to undertake the task of updating the EEOC Compliance Manual on National Origin Discrimination to ensure that Title VII's protections against national origin discrimination are fully realized.

I. Changing Demographics and the Challenges Faced by AA/NHPI National Origin Minority Groups

As an organization based in California - where a majority of the population is now a member of a racial or ethnic minority - we are acutely aware of the demographic changes that are happening around us. Demographic changes are taking place nationwide. Both in California and nationwide, AA/NHPIs are the fastest growing demographic group, with a national growth rate of 46% between 2000 and 2010.[2] With over 20 distinct countries of origin, and countless more ethnic groups, [3] AA/NHPI population growth is an important driver of our increasingly diverse society. California has the largest population of AA/NHPIs, with New York, Texas, New Jersey, and Hawaii following it.[4] AA/NHPI population growth was highest in Nevada, Arizona, North Carolina and North Dakota between 2000 and 2010.[5]

As AA/NHPI communities have grown, so too have their contributions to the American economy. As consumers, AA/NHPI buying power rose 89% between 2000 and 2009.[6] Asian Americans also contribute as business owners. Asian American-owned businesses generated over $506 billion in revenue in 2007.[7] Their businesses also created jobs, with 26% of Asian American businesses in 2007 having paid employees - the second highest among all demographic groups.[8] They paid out nearly $80 billion in payroll that year, employing more persons (and dispensing more in payroll) than businesses owned by any other demographic group except non-Hispanic Whites.[9]

Despite the growing presence of AA/NHPIs and their contributions to the American economy, countervailing social trends have placed increased stress on certain Asian American national origin minority groups. In particular, the backlash in the wake of the 9/11 terror attacks and China's ascendency as a global economic power have led to the unfair demonization of certain AA/NHPIs in connection with those events. This animosity has resulted in an uptick in discrimination and harassment against individuals from these groups in the workplace and beyond.[10] It has also spurred some employers in service and retail industries to enact corporate image and "look" policies that misguidedly play into and attempt to neutralize this animosity amongst customers.[11]

Recognizing the heightened discrimination against individuals who are - or are perceived to be - Muslim, Arab, Afghani, Middle Eastern or South Asian (Pakistani, Indian, Bangladeshi, etc.), the EEOC issued its Guidance on Employment Discrimination Based on Religion, Ethnicity, or Country of Origin.[12] It cautioned that "anger at those responsible for the tragic events of September 11 should not be misdirected against innocent individuals because of their religion, ethnicity, or country of origin. Employers and labor unions have a special role in guarding against unlawful workplace discrimination."[13] The EEOC should be commended for issuing this Guidance to make clear that all forms of discriminatory targeting of these groups are unlawful. However, we believe the EEOC can go further by updating its Compliance Manual on National Origin Discrimination (hereinafter, "Compliance Manual") to ensure that employers understand that discriminatory conduct that may appear to arise only from religious discrimination may also constitute national origin and race discrimination, given the intersection of race, national origin, and religion in this context. As described further below, as well as in the letter The Legal Aid Society - Employment Law Center and a coalition of other civil rights organizations sent to the Commission on March 1, 2013 (whose full recommendations are incorporated by reference here), we recommend that the EEOC update its Compliance Manual to discuss and provide real world examples of where such multiple grounds of discrimination are at play.[14]

Another workplace challenge faced by AA/NHPIs is discrimination on account of language and accent issues. Approximately 60% of Asian Americans are born in a country other than the United States, the highest proportion of any demographic group nationwide.[15] Approximately 71% of Asian Americans speak a language other than English at home.[16] Approximately 32% of Asian Americans are LEP who experience some difficulty communicating in English.[17] Language issues are especially significant for certain Asian American ethnic groups. Over half of Vietnamese Americans and nearly half of Bangladeshi Americans are LEP.[18] Over 40% of Cambodian, Hmong, Taiwanese, Chinese, Korean, and Laotian Americans are LEP.[19] Further, approximately 21% of Asian American households are linguistically isolated, with Vietnamese, Korean and Chinese American populations having the highest rates of linguistic isolation.[20]

II. Understanding the Scope of National Origin Discrimination, and Overlapping Categories of Discrimination

A. The Need for an Expansive Definition of National Origin Discrimination Reflective of Our Increasingly Multi-Cultural Workplace

When Congress enacted Title VII of the Civil Rights Act of 1964 and included national origin as one of the prohibited grounds of discrimination, it did not specifically define it.[21] There is little legislative history of Congress's intent in including national origin discrimination in the Act, whereas there is some evidence that Congress did not indicate its intent on this issue at all.[22] However, there is now clear recognition by both the EEOC and courts that national origin discrimination necessarily encompasses more than just a person's country of birth. [23] In both court opinions and EEOC interpretive guidance, it has been fairly well-established that national origin for purposes of Title VII not only encompasses affiliation with a specific country, but also common ancestry, heritage or background, which also includes shared language or other ethnic traits, as well as personal traits such as dress and height.[24]

A broad understanding of national origin discrimination is especially important in our increasingly multi-cultural workforce, where differences in outward traits such as dress, language, accent, and custom which are "associated with a non-American origin" are "more likely to elicit prejudicial attitudes than the fact of the [national] origin itself."[25] The EEOC's Compliance Manual rightly recognizes the need for an expansive definition of national origin discrimination. It defines a national origin group as people who "shar[e] a common language, culture, ancestry, and/or other similar social characteristic."[26] The EEOC's National Origin Guidelines also protect individuals associated with these characteristics.[27]

Though not explicitly within its definition, the EEOC Compliance Manual also recognizes "ethnicity" as a basis for national origin discrimination, which brings into the fold groups that are associated with geographic regions, such as Hispanics and Arabs, as well as groups who make up a minority population in certain countries, such as Kurds and Roma (Gypsies).[28] By encompassing ethnicity, Title VII extends protection against discrimination for individuals of different ancestral origins, but also individuals within the same ancestral origin.[29]

In light of the changing demographics discussed here, the Compliance Manual can do more by expressly recognizing that Title VII's definition of national origin includes ethnicity, and by better accounting for intersection with race and religious discrimination as discussed further below.

B. The Need to Recognize Intersecting Grounds of Discrimination

In addition to recognizing the multiple bases that can make up a person's national origin identity, it is also important to understand the intersection between national origin discrimination and other protected grounds, including race and religion. The EEOC's National Origin Guidelines (hereinafter "Guidelines") already recognize the close alignment of national origin discrimination with these other protected grounds.[30] Specifically, the Guidelines emphasize that the Commission "will examine with particular concern" allegations of discrimination "grounded in national origin considerations, such as … membership in, or association with an organization identified with or seeking to promote the interests of national origin groups," and "attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group."[31] This guidance is especially helpful because employees, especially those who pursue their claims pro se, may not appreciate the multi-layered nature of the discrimination they are facing, even though it fits a common pattern of discrimination on multiple grounds. Likewise, employers should also understand these patterns so that they can comprehensively address them.

The EEOC can take several additional steps to ensure that workers are protected against all applicable forms of discrimination. First, it should specifically include in its Compliance Manual language similar to that in its Guidelines, which identify instances where national origin discrimination will likely also intersect with race and religious discrimination. Second, regarding the vulnerable Arab, Middle Eastern, Muslim and South Asian communities discussed above, stereotypes against them can be based on multiple biases, including misconception of the cultures abroad, Islamophobic sentiments, or false association with criminal/terrorist activity. Because of this, it is particularly important that the EEOC provide clear guidance in its Compliance Manual on the multiple protections they may be entitled to under Title VII. This guidance will also serve to ensure that employers are put on notice of the intersecting forms of discrimination so that they can take comprehensive steps to root them out.

The following are just a few examples of intersecting grounds of discrimination that can be instructive:

• Yash is a Sikh man whose ancestors are from India. He is hired as a fork lift operator. He arrives at work wearing a kurta, a traditional Indian shirt. He does not wear a turban like some other Sikhs do. He is given strange looks, but does not respond. He continues to wear his kurta for the rest of the week. At the end of the week his supervisor asks him why he has to wear his "Osama outfit" to work, and informs him that he is making his co-workers feel uncomfortable. Yash explains that this is his regular attire, and that he does not see anything wrong with wearing it. Yash does not tell his supervisor he is Sikh or of Indian ancestry. The following week Yash is laid off. Yash has claims for perceived race, perceived national origin and perceived religious discrimination.
• Gajan, a Sri Lankan man from the country's ethnic Tamil Hindu minority, is hired as a salesperson and assigned to a high profile unit of the company. The Tamils in Sri Lanka are engaged in a bloody civil war led by the Tamil Tigers, who are accused by the Sinhalese Buddhist majority of engaging in terrorism. The Tamils and Sinhalese believe they are descended from distinct racial groups. Gajan makes regular trips to Sri Lanka to visit his family there. After a Tamil Tiger bombing attack hits the news, Gajan begins to be harassed by his Sinhalese Buddhist supervisor, who accuses him of supporting the Tigers. After Gajan complains, he is moved to a less high profile department where his compensation and chances for career advancement are curtailed. His supervisor suffers no consequences for his interactions with Gajan. Gajan has claims for race, religious and national origin discrimination.

To best address these types of claims, we recommend that at the charging stage EEOC investigators be trained to identify all protected grounds of discrimination for claims brought by individuals in these and other national origin minority groups. Investigators should not limit the claims to those checked off by the claimant, especially when the claimant is pro se. Where it appears the fact pattern lends itself to a situation where there would be multiple intersecting grounds of discrimination, investigators should thoroughly investigate these additional grounds and add them to the charge where appropriate. They should also allow amendment to include additionally identified claims when appropriate.

Civil rights organizations like mine and those in our coalition are dedicated to providing services to many national origin minority groups, and have developed important cultural competencies in doing so. We welcome the opportunity to work with the EEOC to help analyze claims of discrimination where the claims appear to give rise to multiple grounds of discrimination like those discussed here. Whether or not litigants actually pursue all of the claims identified at the charge stage, it is important to preserve them especially where the facts have yet to be fully developed.

III. Strengthening Protections Against Language and Accent Discrimination

In the past several years, organizations like ours have seen a steady stream of complaints against English-only policies that restrict employees' ability to speak their primary language at work. We also have seen an increase in complaints of accent discrimination, which often arise in conjunction with English proficiency rules or in response to specious justifications such as perceived customer preference. [32] These trends are no doubt correlated to the growth in the workforce of individuals whose primary language is not English. Because that demographic trend is not likely to wane any time soon, and because developments in the case law have created a muddled understanding of how to assess language discrimination claims, the time is ripe for the EEOC to update its guidance to ensure that Title VII's protections in this area are clearly set forth. To this end, we and our coalition partners submitted to the EEOC specific recommendations for updating its Compliance Manual on National Origin Discrimination. Among other things, our specific recommendations address the issues faced by national origin minority groups who are increasingly being subject to English-only policies.[33] I incorporate all of our recommendations for updating the Compliance Manual by reference here, and address some of the more pressing issues below.

A. Affirming and Clarifying the EEOC's "Speak English-only" Guidelines

1. English-only Policies and Hostile Work Environment Claims

The EEOC's Guidelines already provide employers with direction regarding "Speak English-only" policies. The EEOC's Guidelines on "Speak English-only" rules already make clear that such policies can create a hostile work environment and that they may be unlawful whether they apply at all times of the workday, or only at certain times.[34] However, the EEOC can take several additional steps to strengthen those protections, especially in light of divergent case law on the issue.

The Guidelines state "Speak English-only" policies that apply at all times are presumed to create a hostile work environment, such that the existence of such a policy is sufficient to satisfy an employee's burden of showing disparate impact.[35] The Guidelines provide a detailed rationale for this robust rule. They establish that "[t]he primary language of an individual is often an essential national origin characteristic,"[36] and therefore that depriving an individual of the ability to speak his or her primary language can result in real and appreciable harm.[37] The Guidelines go on to describe the kinds of harm that national origin minorities may face when such rules apply at all times; such policies "may [] create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment."[38]

The Guidelines also provide direction regarding "Speak English-only" policies that apply only at certain times. Under the Guidelines, an employer may have such a policy where the employer can show that the rule is justified by business necessity. The employer also should effectively notify employees of the circumstances under which policy applies and the consequences for violating it. [39] Absent such notice, the EEOC will consider the employer's implementation of such limited English-only policies as evidence of national origin discrimination.[40]

Our experience confirms that even Speak English-only policies that purportedly apply only at certain times can nonetheless create a hostile work environment. In the Delano case discussed above, the policy itself stated that it did not apply when employees were on their breaks, or when employees were otherwise not "on duty." However, this did not stop employees in this multi-racial workforce from teasing, taunting and demeaning the Filipino American staff about their compliance with the policy, especially after hospital management called only Filipino American employees into a meeting to discuss their obligations under the policy in response to a confidential complaint. Thereafter, the hospital management distributed an "all staff" memo reminding staff that they could be terminated for violating the English-only policy, and that everyone had to "do their part" to ensure the policy was being followed. Despite this, it was mainly Filipino American staff that were targeted by the policy. Thereafter, the Filipino American workers were regularly approached by co-workers acting as vigilantes to enforce the policy. For example, Filipino American staff were constantly being told to speak English even while on their breaks and when they were off duty, often as a mere precautionary instruction. On several occasions, Filipino American staff with heavier accents were taunted about failing to speak English even when they were in fact speaking English. In one especially demeaning interaction, a co-worker sprayed air freshener on the ethnic food of a Filipino American employee in the break room. The Filipino American workers felt they were constantly being watched, and had constant anxiety and stress about being fired for inadvertent slips of the tongue. Despite the hospital management's ostensible intention to limit the policy, it essentially gave employees license to harass their co-workers about their alleged failure to comply with the policy. The failure of the hospital to clarify when employees were "on duty" also led to conflicting interpretations of the policy, and unfair and subjective enforcement of it. In light of these facts, the EEOC's finding that such policies can "create an atmosphere of inferiority, isolation and intimidation" resulting in a presumption that they violate Title VII should be afforded deference, even where, as here, those policies are not supposed to be in effect at all times.[41]

Although the EEOC's Guidelines do provide meaningful protections in some cases, the EEOC can do more to enhance them. First, it should affirm and incorporate these protections in its Compliance Manual. Currently, the Compliance Manual does not clearly articulate the principles set forth in the Guidelines, nor does it explain the important justification for those principles as described above. Including both of these in the Compliance Manual will not only reinforce their use, but will also help educate both employers and employees about the harms that can arise from Speak English-only policies, and the need to tailor such policies - if they must be enacted at all - to a legitimate business necessity. Second, in light of recent trends we have seen of heightened co-worker tensions arising from Speak English-only policies, the EEOC should clarify that such policies may create a hostile work environment, even if those policies are not in effect at all times.

The EEOC should also reaffirm its "Speak English-only" Guidelines in light of divergent case law from the thirty years since the Guidelines issued. Several courts have deferred to the EEOC's interpretation that the existence of an English-only policy alone is sufficient to create a presumption of a hostile work environment. Specifically, EEOC v. Premier Operator Services,[42] EEOC v. Synchro- Start Products, Inc.,[43] and Maldonado v. City of Altus[44] all acknowledge this presumption, relying in part on the EEOC's interpretation of Title VII as encompassed in the Guidelines.[45] In Premier Operator Services, the English-only policy at issue was introduced together with a ban on deadly weapons. The policy was posted on a sign that stated, "Absolutely No Guns, Knives, or Weapons of any kind are allowed on these Premises at any time! English is the official language of Premier Operator Inc. All conversations on these premises are to be in English." The policy thereby implied that the mostly Spanish-speaking bilingual workers were associated with violent, possibly criminal activities.[46] The evidence there demonstrated that the policy caused the bilingual workers to feel denigrated and persecuted on account of their national origin. Similarly, in Maldonado, the city of Altus, Oklahoma, banned a number of bilingual Latino employees from speaking Spanish, promulgating a policy requiring that "all work related and business communications during the work day shall be conducted in the English language," subject to limited exceptions.[47] The Tenth Circuit explicitly held that, "[t]he policy itself, and not just the effect of the policy in evoking hostility by co-workers, may create or contribute to the hostility of the work environment."[48] There, the court held that "the very fact that the City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics."[49]

However, other courts have declined to follow the EEOC's Guidelines. The Ninth Circuit in Garcia v. Spun Steak recognized the potential harassing effects of English-only policies, but declined to follow the Guidelines' presumption that such policies themselves can create a hostile work environment.[50] It held that employees must always submit evidence of harassment to meet their prima facie burden of establishing a hostile work environment under a disparate impact theory.[51] Despite acknowledging that establishing disparate impact would necessarily "depend on subjective factors not easily quantifiable," the Spun Steak majority rejected as "conclusory" plaintiffs' testimony that they experienced feelings of "inferiority, isolation and intimidation" as a result of the policy.[52]

To resolve confusion stemming from the Ninth Circuit's decision in Spun Steak, the EEOC should affirm the Guidelines to ensure that employers understand the EEOC's position. As Judge Boochever explained in his dissent in Spun Steak,[53] "proof of such an effect of English-only rules requires analysis of subjective factors. It is hard to envision how the burden of proving such an effect would be met other than by conclusory self-serving statements of the [bilingual] employees or possibly by expert testimony of psychologists. The difficulty of meeting such a burden may well have been one of the reasons for the promulgation of the guideline."[54] Consistent with this reasoning, the EEOC should affirm its Guidelines and emphasize that the existence of an English-only policy alone can create a presumption of a hostile environment.

A growing body of social science research and scholarship[55] supports the EEOC's position that "[t]he primary language of an individual is often an essential national origin characteristic," and that prohibiting people "from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin."[56] One legal commentator summed up that research by stating that,

Speak-English-Only rules impose practical and psychological burdens upon minorities whose primary language is other than English by suppressing one of the most salient aspects of their ethnicity, inhibiting their communication and relationships, and altering their personalities. Not only do these burdens constitute discriminatory 'terms and conditions' of employment not suffered by native English speakers, but the cumulative effect of these practical and psychic burdens is to create a hostile and discriminatory environment.[57]

2. English-only Policies, "Ability to Comply," and "Code-Switching"

The EEOC should also reaffirm its Guidelines and update its Compliance Manual to make clear that English-only policies can have an adverse impact on national origin minority groups regardless of their "ability to comply" with them. The EEOC should do so in light of the growing recognition both in case law and in socio-linguistic research into the phenomenon of "code-switching," which demonstrates that "the ease of compliance with a rule should not be the measure of its discriminatory effect."[58]

In developing guidance on "ability to comply," the EEOC should draw on Premier Operator Services, a district court case from the Northern District of Texas. Premier Operating Services questioned the Fifth Circuit's ruling, Garcia v. Gloor, which was handed down prior to the EEOC's adoption of its Guidelines. In Gloor the court ruled that an English-only rule can never have a disparate impact on national origin minority groups if the affected employees are "fully bilingual."[59] Premier Operator Services departed from this ruling, and held that "Speak-English-only rules tend to impact people whose national origin is from non-English speaking countries more heavily than it affects others … because they preclude many members of these groups from speaking the language in which they are best able to communicate, while rarely if ever having that effect on non-minority employees."[60] In Premier Operator Services, like in Delano discussed above, the employer subjected the bilingual employees to oppressive monitoring and potential discipline or discharge. As a result, the employees were forced to be constantly on guard lest they inadvertently switch into Spanish. In light of these facts, the court agreed with the EEOC's Guidelines that English-only policies disproportionately disadvantage national origin minorities. It also relied on the "extensive research, studies and scientific findings presented through the credible testimony of [a] well-qualified linguistic expert" that the ability to "readily comply" is not merely a matter of "individual preference."[61]

Premier OperatorServices also responded to the Ninth Circuit's ruling in Spun Steak which followed the Gloor court's "ability to comply" rationale in upholding an English-only rule there. Premier Operator Services explained that Spun Steak incorrectly focused on the "physical difficulty of complying with an English-only rule, rather than on the discriminatory impact of the rule."[62] In so doing, Premier Operator Services recognized that requiring one set of employees to suppress an essential trait of their identity simply because they have the ability to do so goes to the heart of anti-discrimination law and should be rejected. It specifically cited the strong dissent in the Ninth Circuit's denial of rehearing en banc, which points out that "[s]ome of the most objectionable discriminatory rules are the least obtrusive in terms of one's ability to comply: being required to sit in the back of the bus for example."[63] As a society, we long ago came to the understanding that such requirements are pernicious forms of discrimination that we cannot tolerate. The EEOC should affirm this understanding by making clear that the "ability to comply" with "Speak English-only rules" does not obviate their discriminatory impact.

A growing body of socio-linguistic research provides additional support for rejecting the "ability to comply" rationale. As that research shows, many bilingual individuals have an involuntary propensity to "code-switch" between English and their dominant languages, and they should not be forced to suppress that aspect of their identity.[64] The Guidelines already make a brief reference to code-switching, advising that "[i]t is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language."[65] In the context of workplaces with English-only rules, where workers are prohibited from speaking their dominant language for long periods of time, code-switching research indicates that those workers are more likely to unwittingly violate the policy and suffer the punishment associated with it.[66] Importantly, the research also shows that complying with English-only rules is not simply a matter of preference, and the tendency to switch between languages cannot typically be turned on or off.[67] It therefore directly calls into question the "ability to comply" rationale.

The research on code-switching provides a number of additional insights into the potential harms faced by workers who are forced to forgo speaking their dominant language in restrictive ways. The following are just a few highlights from that research:

• Code-switching is especially prevalent among communities where the phenomenon is a common and accepted mode of communication;[68]
• In industries where bilingual workers are required to speak to clients in their dominant language, they are more prone to continue speaking in their dominant language in subsequent conversations, demonstrating that code-switching is particularly relevant in the service industry;[69]
• More recent research indicates that rather than a transitional phase, code-switching constitutes the most effective means of communication for some bilinguals.[70]

As noted above, at least one court has already relied on code-switching research to reject the "ability to comply" argument despite apparently contrary precedent.[71] Likewise, the Supreme Court has held that changes in fact or intervening scientific knowledge are grounds to reconsider prior law that relied on such outdated information. [72]

The EEOC should lead the charge in responding to the "ability to comply" rationale in light of the advances in our understanding of code-switching. In doing so, the EEOC should re-affirm its prior determination that the code-switching phenomenon can serve as a basis to scrutinize the validity of English-only policies. EEOC guidance should also indicate that it will scrutinize even those policies that provide adequate notice as to when they apply and the consequences for violating them, because such policies must still establish business necessity in light of the harms that they may have on bilingual employees in light of their propensity for code-switching.

3. Business Necessity: Holding Employers to their Burden of Proof

In cases involving a disparate impact theory of liability, once an employee has established a prima facie case that an English-only policy is discriminatory, the employer has the burden of proving that it has a legitimate "business necessity" for the policy.[73] In its 1991 amendments to Title VII, Congress re-affirmed the standard for business necessity set forth by the Supreme Court in Griggs v. Duke Power Co., which places the burden on the employer and states that "[i]f an employment practice which operates to [discriminate against a protected minority] cannot be shown to be related to job performance, the practice is prohibited." [74] But many courts have not held employers to this burden, allowing for conclusory assertions of business necessity that are not supported by objective facts.[75] However, other courts have correctly required employers to make their case, by providing "specifics" [76] and "credible evidence"[77] to justify their alleged business necessity.

The Compliance Manual should follow suit, by specifically articulating that employers bear the burden of establishing that a purported business necessity is legitimate. It should also state, as it does elsewhere in its Compliance Manual, that English-only policies that have as their justification co-worker morale or customer preference are not permissible because they unduly burden bilingual speakers. In response to concerns over co-worker morale or customer preference, the EEOC should advise employers to instead adopt civility and respect policies that ensure that workers refrain from disparaging co-workers and customers in any language.

The Compliance Manual should also provide clear guidance that anecdotal and "commonsense" business necessity justifications - which are among the most common assertions relied on by employers-without objective evidentiary support, will not suffice. English-only policies have been implemented in a wide variety of workplaces: they have been reported at workplaces where there is one predominant national origin group,[78] where there are two predominant national origin minority groups,[79] where the workplace has many national origin minority groups but serves a primarily English-speaking clientele,[80] and where there is one predominant national origin group but the management is primarily English-speaking.[81] Despite the variety of contexts in which English-only policies are instituted, the rationales employers rely on seem to be focused on the need to run a business "smoothly and efficiently,"[82] ensure a safe and efficient workplace,[83] and ensure racial and ethnic harmony on the job.[84] The Compliance Manual should address each of these rationales, and provide clear guidance on what an employer must be able to show to justify an English-only policy.

Currently, the Compliance Manual states that an English-Only policy is justified by business necessity if it is "needed for an employer to operate safely and efficiently."[85] However, rather than helping employers understand what constitutes a legitimate business justification, this broad guidance opens the door to simplistic and unrealistic assessments of the need for an English-only policy. For example, because our workplaces are increasingly populated by workers who have varying degrees of English proficiency, English-only rules may actually be an impediment to a safe and efficient workplace. Where there are a number of workers who speak a shared language, whatever that language may be, allowing them to speak to one another in that language may lead to the most safe and efficient results. These workers may be able to respond more quickly to dangerous conditions and communicate them better to their co-workers and supervisors. The Compliance Manual should take these situations into account, and require that employers provide actual, objective support when claiming business necessity. Employers' hypothetical claims of safety should usually be accompanied by expert opinions or a specific factual showing of the need for an English-only rule at the particular workplace at issue, and how it would enhance rather than detract from safe working conditions.

Similarly, the Compliance Manual should make clear that the perceived business justifications of customer preference and co-worker morale cannot be valid bases to impose an English-only policy. Indeed, the Compliance Manual already recognizes in the context of hiring, promotion and assignment that "employers may not rely on co-worker, customer, or client discomfort or preference as the basis for a discriminatory action. If an employer takes an action based on the discriminatory preferences of others, the employer is also discriminating."[86] The Compliance Manual should incorporate this admonition into its guidance on English-only policies to discourage employers from the harmful practice of using co-worker morale and customer preference as a legitimate business justification.

While employers may feel that implementing such policies serve to ensure that customers are not "turned off" or to maintain co-worker morale, these rationales unfortunately play into the very prejudice that Title VII seeks to root out. They are usually based on unjustified fears that have no basis in fact.[87] In our experience, rather than improve workplace morale, imposition of English-only policies tend to exacerbate - not lessen - any existing tensions between workers. As we demonstrated in the Delano case, selectively burdening certain national origin minority groups and stigmatizing them leads to more discord.[88] When such policies are in place, bilingual speakers are often mocked by co-workers because of their accented English.[89] Moreover, bilingual workers are in constant fear of slipping into their native language and being subject to discipline, or worse, losing their jobs.[90] Thus, employers should resist the imposition of restrictive language policies that burden only bilingual workers based on their national origin, and if necessary institute neutral civility and respect policies that prohibit workers from making derogatory comments against co-workers in any language.

B. Accent Discrimination

Accent discrimination is another important challenge faced by the national origin communities we serve, a large percentage of whom have some level of accented speech. The EEOC Guidelines already state that employment requirements based on English fluency or the absence of a "foreign accent" may constitute national origin discrimination.[91] The Compliance Manual should go further by expressly affirming the standard set forth in Fragante v. City and County of Honolulu, which holds that employers can only take adverse action on account of accent "when [] it interferes materially with job performance."[92] The EEOC Compliance Manual should also advise employers to engage in "a searching look" into claims of interference with job performance based on objective standards before making adverse employment decisions based on accent.[93]

As many of our clients understand too well, it is nearly impossible for an adult to eliminate a native accent.[94] The law is clear that an individual's accent should not lead to an adverse employment action unless it "interferes materially with job performance," and that employers should engage in a "searching look" before imposing such a consequence.[95] However, in some cases it is clear that employers are not applying this standard objectively, and are instead relying on impermissible lay, "common sense" opinions about the job-relatedness of an employee's accent. [96] The EEOC's Compliance Manual, Guidelines and other policy and guidance should both affirm the objective job-relatedness standard, as well as caution employers against the tendency to rely on subjective determinations in making accent-related job decisions.

In making these changes, the EEOC can draw upon the legal standard applied by the Ninth Circuit in Fragante. Although the Ninth Circuit ultimately held that the defendant was justified in passing plaintiff up for a job because that job required the ability to communicate effectively in English, it did so only after determining that plaintiff's pronounced accent would have materially interfered with his job performance as a postal clerk.[97]

The EEOC can also draw lessons from the particular record in Fragrante in updating its Compliance Manual concerning accent discrimination. While the record in Fragante may have been sufficient for defendant to make an objective determination about the job-relatedness of the plaintiff's accent, comments made by the trial court demonstrate that certain impermissible subjective factors may have improperly infused the analysis. Specifically, the trial court appeared to rely not only on the effect of plaintiff's accented speech, but also on its observation that at trial "'he would often not respond directly to the questions as propounded, [and that] [h]e maintains much of his military bearing."[98] In response to plaintiff's argument that he was subject to impermissible "listener prejudice," the Ninth Circuit dismissed the trial court's comments as "little more than a stray remark of no moment."[99] We have also seen this same trend in some of our cases, where employers seeking to establish a certain "corporate image" or cater to a certain perceived customer preference deny employment opportunities on that basis. The EEOC Compliance Manual should caution against such subjective factors as potential listener bias and customer preference, which may skew an employer's perception of whether the accent of the employee in question in fact materially interferes with his or her job performance.[100] Further, EEOC investigators should be trained to engage in a searching inquiry to determine whether such factors have infected an employer's judgment about an employee's ability to perform.

Conclusion

We live in a time of profound social change, as demographic changes produce a workforce that increasingly mirrors our multi-cultural society. The time is right to update the EEOC Compliance Manual to address the effects of these changes on national origin minority groups asserting their rights under Title VII. Updating the Compliance Manual will also serve to educate both employees and employers of their rights and responsibilities. This will hopefully allow them to work together to achieve more respectful and harmonious workplaces. I thank the Commission for considering my remarks on this issue.

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