Written Testimony of Elizabeth Torphy-Donzella Partner, Shawe Rosenthal

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

I am pleased to have been invited to participate in the EEOC's Commission Meeting on National Origin Discrimination. I understand that the EEOC's is considering an update to the agency's Compliance Manual on National Origin Discrimination. As a lawyer who represents employers in the area of labor and employment law, I regularly use the EEOC's publications to assist my clients in understanding their obligations and complying with the law. Thus, I have a keen interest in the quality of those publications and welcome the opportunity to assist the Commission in this endeavor. My submission is intended to provide the EEOC with observations on how the issues that are addressed in revised Compliance Manual Sections may impact the workplace from the perspective of employers.

My Background

I have devoted my career to management side employment and labor law. After my first year of law school, I was fortunate to have been offered a summer job with the Washington, D.C. office of Ogletree, Deakins, Nash, Smoak & Stewart, then a medium sized firm focused solely on management-side labor and employment law. Thereafter, I worked at Ogletree part-time through the balance of law school and went to work on a full time basis after graduating from Georgetown in 1992. In 1995, I left Washington and joined the Baltimore labor and employment boutique, Shawe Rosenthal, LLP, where I am now a partner.

My early experiences in management side employment law were life changing in two respects.

First, my education had inculcated me to believe that companies were inclined to mistreat and oppress workers unless restrained from these tendencies by laws and courts. The case-study method of law school exposes students to cases where injustice is righted by the courts and the law is extended to protect us from the evils of society, businesses being chief among the evils. What I learned by dealing with employers and reviewing the lawsuits actually filed against them was that reality is much more nuanced. While predatory employers surely exist, most companies want to do well by employees and continually make good faith efforts to comply with laws that are sometimes confusing and complex.

Second, I learned that representing companies in employment matters is (mostly) gratifying and dedicated my career to this field. In my role as advisor and counselor, I have the opportunity to work on a near-daily basis with human resource professionals and company executives to address employment issues before they become lawsuits. For the most part, that involves discussing ongoing issues concerning their employees and guiding them on how to manage the relationship so that they can honestly say that they gave the employee a "fair shake;" if things did not work out, it was not due to any unfair or illegal conduct. When I provide training, I am able to help both employees and managers understand their rights and their obligations in the workplace. Again, the goal is to improve the quality of the working environment as well as to minimize the likelihood of lawsuits. Training is particularly important in areas such as that under discussion today - national origin discrimination - where the obligations are not always self-evident (for example, without training many managers would have no reason to know that inappropriately considering accent or facility with English can constitute national origin discrimination unless certain conditions are satisfied). Finally, as a litigator defending employers, my knowledge of this area of law and my experience with its practical application enable me to provide a vigorous defense of claims when appropriate and advise my clients when the legal risks of defending are so great that attempting settlement is the best approach.

National Origin Discrimination: What I Have Learned Through Defending Lawsuits.

Employment lawsuits often are the result of miscommunication, poor communication, a mismatch in perception between employer and employee, or a combination of these. One's national origin - country of birth or ancestry, language, and often religion - shapes the way one perceives the world and communicates. My good friend who grew up in Lebanon as a Coptic Christian in the 1980s, spending her childhood in and out of bunkers and part of a persecuted religious minority, approaches her life and family relations very differently than I, who grew up in a stable, middle class suburban home without significant concerns about safety or social acceptance. Such differences make for interesting and gratifying friendships. They can also make for dynamic workplaces when employees are able to bring to bear all of their strengths, including those that are derived from their culture. Lawsuits, however, can result when differences in language, culture, and perceptions collide.

1. "Speak English" Requirements.

An EEOC lawsuit against one of my clients alleged that Hispanic employees were prohibited from speaking anything other than English in the workplace and threatened with termination if they did so. The lawsuit also alleged that Hispanic employees were subjected to slurs based on their National origin and were held to more onerous work standards than were Black and Caucasian American employees. My client's position on the facts was at odds with this portrayal. The employer maintained that Hispanic employees were required to speak English in conversations with their English-speaking manager about work and when speaking on the two-way radio (so that the manager could monitor the progress of work). It also appeared that the use of slurs "ran two ways" and was the product of "rough and tumble humor." The non-Hispanic manager was dubbed "red neck" by the Hispanic employees and the manager, in turn, made up names about the Hispanic employees based on their national origins. The allegation of disparate treatment in work standards was denied, and there really did not appear to be evidence of this (although the employees appeared to believe that they were being treated more harshly, probably because they were unaware of discipline meted out to other coworkers - a not unusual aspect of employment lawsuits). Ultimately, the prospect of incurring large legal bills to defend its actions motivated my client to resolve the case very early. A consent decree was negotiated with the EEOC attorneys, which spanned 30 months and included training (in English and Spanish), some monetary relief for Hispanic employees, and an obligation to report certain matters during the 30-month period.

One lesson learned from this lawsuit is one that many companies learn the hard way; that is that ethnic and racial slurs (including "redneck") should not be tolerated. What seems to be "the way guys talk to each other" in the everyday sense and "giving as good as they get" may look very different in a lawsuit, and in any event things tend to go too far at some point. Employees complain about companies becoming "thought and speech police" but such standards are not optional in the 21st Century.

The other lesson learned is that it is very difficult for employers to understand and navigate the EEOC's expectations as they relate to the use of English in the workplace. In this case, and in others that I have defended, the employees asserting the right to speak their native language have been bilingual. "Speak English" requirements have not in these cases been used as a subterfuge to exclude people of other national origins from employment. Employers struggle to understand why individuals who are capable of speaking English should have not only the option, but the legal right, to decline to speak it in the workplace under certain conditions. We understand that the Guidelines on National Origin Discrimination (the Guidelines) take the position that "the primary language of a person is often an essential national origin characteristic" and, thus, a blanket requirement to speak English "disadvantages an individual's employment opportunities on the basis of national origin" and "may also create an atmosphere of inferiority, isolation, and intimidation based on national origin." (29 C.F.R. § 1606.7)

Finally, and as I noted at the outset, proactive steps like training managers to understand the less obvious aspects of the law is so very critical. In the case just discussed, it was part of this consent decree and we executed it well to beneficial effect. We partnered with a Spanish trainer to provide an overview of the rights and obligations of both employees and a management in both English and Spanish, and the training helped improve relations in the workplace. Yet, more broadly speaking than this case, whenever I conduct training, I feel it is my obligation to provide participants with the tools that they need to understand the issues that can arise in diverse workforces that can lead to unintentional legal violations. Accent and language issues are important concepts to understand and I always cover them. Appearance standards are also subjects that merit discussion due to the potential for unwitting violations in the area of national origin, race and gender. So, too, is training individuals to understand that cultural differences among workers can result in workplace disputes that pit one group's accepted norms against another's in a way that can trigger Title VII violations. For example, although a male manager may come from a culture where women do not typically work or assert their rights outside of the home, he must understand his obligations under the laws of this country to "put that to the side" and treat female colleagues and subordinates as professionals. Similarly, a manager who does not understand the intersection between culture and religion may be unaware of his duty to provide reasonable accommodations for individuals' religious practices that conflict with their work duties. And, a manager lacking a full appreciation of the complexity that diverse workplaces can present may not appreciate potentially unlawful harassment when she sees it. Explaining that two Africans may come from the same continent yet have animus toward one another based on their different countries of birth or even different tribes within the same country emphasizes the need for managers to be responsive to harassment complaints rather than concluding "they look alike so there is no legal issue."

Business Necessity

While blanket rules are prohibited by the EEOC Guidelines, ones that limit the requirement to "certain times" are acceptable if "the employer can show that the rule is justified by business necessity." Thus, the Guidelines provide a legal presumption that the language requirement adversely affects persons based on national origin and shifts the burden of proof to the employer to justify the requirement. As the Commission well understands, not all courts accept this presumption. See, e.g., Garcia v. Spun Steak, 998 F.2d 1480, 1488 (9th Cir. 1993); Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir. 1980); compare Montes v. Vail Clinics, Inc., 497 F.3d 1160, 1171 (10th Cir. 2007).

But leaving aside the validity of the presumption, it can be hard to predict outside of litigation whether a rule will be credited as meeting the "business necessity" defense: that it is necessary to the safe and efficient operation of the business and not achievable by a less restrictive rule. The easy cases are rules related to safety; a unified language in the operating room as in Montes, supra. The EEOC Guidelines also counsel that English may be required for communications with coworkers, customers, and supervisors who only speak English or for a supervisor to monitor the performance of employees whose job duties require communication with customers or coworkers. But, would these rules permit my client to prohibit bilingual employees from speaking Spanish over the company's two-way radio so that their supervisor could ensure that they were performing their duties? Maybe yes, maybe no, but the cost of getting the answer through litigation is high.

Customer Preference

In addition, there are business necessities that are less tangible than safety and efficiency but no less necessary economically to a company. The need to make customers in a retail store feel respected would seem to be a justification for limiting the use on the sales floor of languages other than English. Yet, in EEOC v. Sephora U.S.A., LLC, 419 F.Supp.2d 408 (S.D.N.Y. 2005), the EEOC challenged the legality of a requirement that sales clerks speak English on the sales floors at all times when customers were present. In Sephora's judgment, speaking English was a sign of "respect for the client and in order to remain approachable at all times," and amounted to a "common sense rule against offending customers." Id. at 416. The bilingual employees on whose behalf the EEOC sued were permitted to speak Spanish off the sales floor. The EEOC argued that the restrictions were overly broad and maintained that "customer preference" was not a valid defense to discrimination. The Court rejected the EEOC's position. The Court held that a customer preference related to a legitimate performance standard was a justification for a rule whereas one pandering to customer biases was not. "Helpfulness, politeness, and approachability … are central to the job of a sales employee and a retail establishment, and are distinct from customers' prejudices. When salespeople speak in a language customers do not understand, the effects on helpfulness, politeness and approachability are real and not a matter of abstract preference." Id. at 417.

The EEOC's Compliance Manual addresses customer preference in connection with hiring, promotion, and assignment, but does so only in its illegitimate form (i.e. not hiring or assigning employees to a certain location based on presumed customer biases against dealing with individuals of other national origins). The EEOC might consider including examples that acknowledge an employer's latitude to adopt legitimate performance standards related to customer service that are distinct from illegal "customer preference" and that may, in some settings, permit an employer to restrict the use of languages other than English to better serve customers. The Sephora case demonstrates how this restriction could apply legitimately in a retail setting. Nursing homes represent another setting in which restrictions on the use of non-English in response to "customer" (i.e. resident's) preference may be justified. If elderly residents who have experienced a sense of dislocation and loss after no longer being able to live independently express a desire not to have languages other than English spoken by their caregivers or others when they are present, it should not be unlawful for an employer to adopt such a rule for bilingual employees.

2. Accent Claims.

Another EEOC lawsuit I defended on behalf of a client involved a Nigerian born employee who alleged that his promotional opportunities had been impaired by his supervisor's assumption that his accent made him unsuitable for positions outside of metropolitan areas. He also alleged race discrimination. The branch manager level position that he sought involved substantial telephone contact with customers, and he claimed that the decision-maker thought rural people would not be able to understand him. He also pointed to comments in his evaluations suggesting that he could benefit from receiving coaching on his speaking style as evidence of this bias. There were no management vacancies within the Washington D.C. region of the Company where he worked. The Company, for its part, defended the non-promotion based on performance criteria unrelated to accent. Although the employee's accent did present communication barriers, his manager maintained that this issue really was academic given the performance related barriers.

A jury trial of his claims resulted in a hung jury and, thereafter, the race claims were disposed of by a post-trial motion for judgment. The case settled with my client agreeing to monetary terms as well as adding a component to its management training to educate managers about the potential for decisions based on accent to amount to national origin discrimination.

The Compliance Manual rightly states that if an accent materially interferes with an individual's job performance, it is not discriminatory to rely on the accent in making an employment decision. It also gives examples of positions where effective communication may be required (teaching, customer service, and telemarketing). A fact pattern is offered to illustrate the point - a concierge whose accent is very heavy is put in another position based on customer complaints that he cannot be understood. The conclusion is that the transfer does not violate Title VII because the accent materially interferes with his ability to do the job. I note that in most of the examples offered by the Compliance Manual, there is another job to be offered to someone who is determined to be unqualified by legitimate considerations of accent or fluency; in reality, there often are not other positions available and termination is the only option. Suggesting otherwise, respectfully, skirts the point; that is, even termination based on accent or fluency is not unlawful if based on the legitimate consideration of these traits.

In the case I defended, the jury could not decide if my client had declined to promote the plaintiff based on performance or impermissibly considered his accent (without a record of customer complaints, such a decision would be difficult to defend). More difficult for an employer, however, is defending a decision not to hire an applicant for a position for which communication is a job qualification based on an applicant's accent. If challenged, a jury would have to decide whether the company's judgment of the plaintiff's speech was legitimate. It is unsettling indeed when one considers that an employer, harboring no intent to discriminate, might be nonetheless liable for discrimination - but only if a jury has a different ear! I am not sure what the solution is to this "proof" problem.

3. Balancing of Competing Interests

Another example I will share involves charges of national origin discrimination that I defended on behalf of a restaurant. The matter seemed to have more layers than an onion. The restaurant was owned by an immigrant from Greece. His head chef was an Italian born woman who had exceedingly high standards, an exceedingly short temper (due in no small part to the extraordinary number of hours she worked), and a mouth like Gordon Ramsey of "Kitchen Nightmares" fame. Those who failed to meet her standards knew it with certainty (and profanity). The people on the kitchen staff were all Hispanic.

When a new bookkeeper/HR person was hired (an immigrant from Eastern Europe), he was concerned that new hires had not been properly on-boarded due to the state of the files so he held a restaurant wide "I9 party." One of the Hispanic Assistant Chefs allegedly became belligerent about this effort and referred to the bookkeeper/HR person by a derogatory term for "homosexual." I learned all of this in my initial investigation after a charge was filed by this Assistant Chef some months later claiming that he was subjected to harassment and discrimination by the Italian chef based on national origin. I also learned in my investigation that the Italian chef believed that the Assistant Chef had a "machismo" world view that made him culturally unable to accept direction from a woman. As time went on, two other charges were filed - one by another Hispanic kitchen employee who claimed harassment by the Italian chef (and harassment by a later-hired elderly Italian consultant who was charged with drinking excessively on the job and being abusive). A second was by a female Hispanic line cook (the girlfriend of the first charging party) who claimed pay discrimination as compared with her male counterparts. Finally, a third charge was filed after the bookkeeper/HR person claimed he was fired (and nearly physically assaulted) after an altercation with the Italian consultant who allegedly threatened to report to immigration authorities the legal status of a Hispanic kitchen employee for complaining about her pay. The bookkeeper claimed he was fired in retaliation for this and other protected opposition activity on behalf of employees.

Ultimately, the national origin claims of the kitchen staff resulted in right to sue notices, which they did not pursue. What was clear, however, was that this relatively small employer did not have the systems in place to comply with its legal obligations, did not sufficiently understand its obligations, and did not know how to manage a culturally diverse workforce.

In addition, my case illustrates a situation that often occurs in particular industries, such as hospitality or construction: that of workplace segregation, where particular jobs or work areas are generally populated by employees from a particular culture or country. For example, the staff in the kitchen may be predominantly Spanish-speaking Hispanics, while the chefs and the business staff are predominantly Caucasians or European. The EEOC generally holds that workplace segregation is a violation of Title VII. But there are frequently practical, nondiscriminatory reasons for this workplace situation. Employees who do not speak English or speak only limited English are unable to perform customer-facing jobs, and are thereby limited to positions where the ability to speak English is not a job or an application requirement (ergo, de facto "segregation"). In addition, it is not uncommon for such workers to reside and socialize in insular communities and to recommend friends who are similarly limited in their ability to speak English for similar jobs at their workplace. This kind of word-of-mouth "advertising" is not employer sponsored, but results in a workplace population that is divided along cultural lines. The reality is that many of these jobs are physically demanding positions that employers struggle to fill, and employers value those individuals who are willing to work in them and, indeed, are happy to have the opportunity to do so.

Another industry that commonly experiences these balancing concerns is healthcare, particularly nursing homes and hospice care. I previously mentioned the "speak English only" issue, but there are others. Some of the client populations at these facilities are mentally impaired by age or illness. These individuals experience irrational fears and dislikes that can be exacerbated by their caretakers' religious or national origin practices, and may even derive from their own religion or cultural backgrounds. For example, one of my partners advises a company that operates many nursing homes. One situation that arose involved a nursing assistant who wanted to wear a religious face covering, so that only her eyes were visible. The concern was that patients with dementia were terrified by having an individual whose face they could not see provide hands-on, intimate care for them (and whose appearance, to one patient, was of an apparition suggesting death). Such patients are not competent to testify, nor does any business want to require an elderly resident be a witness, so providing proof of the burden of accommodating her practice was difficult as an evidentiary matter. Another concern involves patients who make racist comments and/or express discriminatory preferences as to their care providers. The employer in that situation is caught between protecting their employees from harassment because of race, religion, or national origin, and ensuring that employees are not subjected to discrimination in scheduling or assignment, while still providing the respectful care that the patients require. The EEOC's Compliance Manual discusses an example in which a senior community can be liable for unlawful harassment by a visitor, but it does not address conduct by residents - a more difficult question. These are some of the issues that healthcare providers struggle with, and for which they would appreciate practical guidance from the EEOC.

With regard to other competing interests in the workplace, even more than a decade after the 9/11 attacks, employers are still struggling to manage deeply ingrained biases, by both management and non-management employees, against those of Middle Eastern national origin and Muslim religion. Given the U.S.'s long and current involvement in Afghanistan and Iraq, where our servicemembers have been frequently targeted for violence, there is a strong societal mentality of "them" v. "us" that can carry over to the workplace - either intentionally or not. Movie, television, and bestselling book depictions of Middle Eastern terrorists unfortunately foster this mentality. My clients understand their obligations. They still retain me to provide training that includes this topic in order to reinforce the message of tolerance and of the dangers of stereotyping others. Yet, human attitudes can be stubborn.

The EEOC's Compliance Manual does not currently address in much detail multicultural workplaces and how employers should manage competing legal obligations that can arise. Suggesting best practices for addressing the unique workplace conflicts that can arise in these settings, such as training and establishing clear conduct rules based on generally applicable and legitimate criteria, would be helpful to employers.

In addition, small employers in particular could benefit from EEOC outreach because many of the legal violations by such employers are unintentional. This is particularly so in an area like national origin discrimination or the sometimes related area of religious discrimination, where the rules can be complex. If the EEOC can find ways to partner with small employers to assist them in complying with the laws, rather than having the rules learned through litigation, this would be a "win/win." The EEOC's publications directed at small employers are an excellent resource and are helpful,national origin discrimination or the sometimes related area of religious discrimination, where the rules can be complex. If the EEOC can find ways to partner with small employers to assist them in complying with the laws, rather than having the rules learned through litigation, this would be a "win/win." The EEOC's publications directed at small employers are an excellent resource and are helpful,national origin discrimination or the sometimes related area of religious discrimination, where the rules can be complex. If the EEOC can find ways to partner with small employers to assist them in complying with the laws, rather than having the rules learned through litigation, this would be a "win/win." The EEOC's publications directed at small employers are an excellent resource and are helpful, ¹but more can be done.

Conclusion

The EEOC's regulations and Compliance Manual are powerful tools. If they hew faithfully to the laws that they seek to explain, courts will defer to them in determining what the laws mean. Where they are thoughtfully drafted, they also help practitioners like me help clients understand and comply with the laws so that litigation can be avoided. In an especially complex area like national origin discrimination, in which what is protected is much more than simply an individual's place of birth or ancestry, it is incumbent upon the EEOC to adopt clear rules that are faithful to the statutes. Before the EEOC determines that employers should be restricted, the EEOC should consider fully the legitimate interests of employers.

Footnote

¹ Among the best is the ADA Guide for Small Employers. The Questions and Answers for Small Employers About National Origin is also serviceable, albeit short.