No

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC or Commission) with interpreting, administering, and enforcing federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII prohibits, among other things, discrimination based on national origin. This appeal involves the proper standard for analyzing a claim of hostile work environment based on national origin where that claim arises, in significant part, from an ad hoc ban on speaking Spanish in the workplace. Specifically, this case presents the important question of whether a jury could find that a harshly-implemented ban on speaking Spanish, combined with ethnically-disparaging comments and other disparate treatment of Latino employees, constitutes a hostile work environment based on national origin. Because the district court’s judgment that the case does not present a jury question is contrary to Title VII and EEOC guidelines, and because a ruling on these issues by this Court will affect the EEOC’s enforcement of Title VII as well as the ability of private parties to enforce their federal civil rights, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. Where plaintiffs provided evidence of national origin animus, did the district court err in ruling that any hostility in the workplace was not “because of” plaintiffs’ national origin because CEMEX’s managers applied the ban on speaking Spanish to Latino and non-Latino employees alike?

2. Did the district court err in granting summary judgment to CEMEX on plaintiffs’ hostile work environment/disparate treatment claim where CEMEX managers: implemented the policy knowing some of the Latino drivers were monolingual Spanish speakers who could not understand instructions in English; threatened Latino employees with discipline if they spoke Spanish, even on breaks; and engaged in other disparaging and disparate treatment of Latino drivers as compared to non-Latino drivers?

STATEMENT OF THE CASE

A. Statement of Facts

Defendant CEMEX, Inc. is a global building materials company engaged in the production of ready-mix concrete and cement. Appellants’ Excerpts of Record (ER.)540-41; ER.487. CEMEX operates over sixty plants across California.[2] CEMEX hired plaintiff Cervantes in 2006 and plaintiff Montes in 2008 as ready-mix truck drivers at its plant in Delano, California, one of several plants that made up the “Bakersfield Area.” ER.543; ER.638. The Delano plant typically employed around eight to ten ready-mix drivers at a time. ER.543; ER.1224; ER.1261; ER.1324. Nearly all were Latino and spoke Spanish, and several of the Latino drivers were not English-proficient. ER.543; ER.1224-25; ER.1261; ER.1282; ER.1324. Cervantes is Mexican-American, grew up speaking Spanish, and continues to speak Spanish at home. ER.1323-24. Montes is Mexican, primarily speaks Spanish, and can speak and read very little English. ER.1280.

Ready-mix drivers delivered concrete to construction job sites, ER.540-41, and CEMEX used the company radio to communicate safety alerts and driving directions to delivery sites. ER.447; ER.922-24; ER.1272-73. Drivers thus needed to understand what was said over the company radio to avoid hazards and to receive driving directions to perform their jobs. ER.447; ER.1225; ER.1273-74; ER.1236-37. On a daily basis from 2006 to 2008, Cervantes assisted CEMEX drivers who did not speak English by translating into Spanish safety instructions, directions, and other important information transmitted over the company radio. ER.1323-24.

Institution of the ban on Spanish

In 2009 or 2010, CEMEX assigned Keith Stogdell (non-Latino, ER.1272) as Area Manager over the Delano plant.[3] ER.638. Alan Light (non-Latino, ER.1242), who was originally hired by Stogdell, became the Delano Plant Manager shortly thereafter. ER.1323, ER.977-78. Stogdell knew that the Delano plant had Spanish-speaking drivers who were not English proficient. ER.905; ER.928-29. Indeed, he had hired Montes knowing Montes could speak very little English. ER.1280-81. And he admitted that speaking English was not a requirement of the ready-mix driver position. ER.926-27. When Stogdell hired Rosendo Cisneros, a Latino driver who communicated in Spanish and “could not speak much English,” Stogdell told him that his limited English speaking ability “was not a problem because it was not required for [him] to speak English in order to do [his] job.” ER.1210.

Nevertheless, Stogdell instituted a rule prohibiting the use of Spanish over the company radio in the Bakersfield Area. ER.934-35; ER.1227-28; ER.1273; ER.1283; ER.1324. There were no written complaints of safety concerns, morale problems, or any other issues regarding the use of Spanish at the Delano plant prior to the institution of the policy. ER.1023-24; ER.1227. Stogdell claimed he instituted the rule in the Bakersfield Area after speaking to CEMEX Human Resource Manager James Hamilton about safety concerns raised by a Swedish employee at the Old River plant, a different plant within the Bakersfield Area, who complained that he could not understand Latino drivers who spoke in Spanish at the Old River plant. ER.452-56; ER.933-37. Hamilton and the Swedish employee “had worked together for 25-plus years.” R.81-3 at 50–51. Within six months, Stogdell instituted the ban on Spanish for the Bakersfield Area, including the Delano plant. Id. at 51. Before that, there was no ban on speaking Spanish over CEMEX radios at the Delano plant (ER.934-35; ER.1207-08; ER.1249-50; ER.1282; ER.1323-24) or any other CEMEX plant in California (ER.541), and after Stogdell implemented this directive in the Bakersfield Area, no other CEMEX locations maintained or enforced an English-only policy.[4] ER.518-21; ER.541 (“CEMEX has never adopted, maintained or enforced an English-only workplace policy.”); ER.931-32 (Stogdell: CEMEX did not have a company-wide English-only policy even for communications over the company radio).

Stogdell enforced the policy by yelling at drivers for speaking Spanish over the radio and threatening disciplinary action if they continued to speak Spanish. ER.1208-10; ER.1237; ER.1249-50. Stogdell yelled at Cervantes and the other Latino drivers for translating safety information and directions into Spanish for the Latino drivers who understood little English. ER.1209; ER.1325.

Stogdell yelled at and humiliated Montes twenty to thirty times for speaking Spanish on the radio. ER.1208-09, ER.1237; ER.1282, ER.1325. Light admitted Montes could not understand directions in English over the radio and that Montes would get lost when information was provided in English. ER.961-64. Light even admitted he was aware that, because Montes could not understand directions provided in English over the radio, Montes had to drive “out of his way to find someone” and “stop somewhere en route, [to] catch another driver,” who could provide directions in Spanish. ER.962-63. Nevertheless, Light and Stogdell ordered Cervantes and other drivers to stop providing Montes directions in Spanish and then described Montes as a poor employee for failing to follow English directions and instructions. ER.830-33; ER.961-66; ER.1283; ER.1325.

Cervantes and other Latino drivers complained to Stogdell that the ban on Spanish was harassing and discriminatory and left the Latino drivers who were limited-English proficient (“LEP”), such as Montes, unable to understand safety information and directions to job sites. E.g., ER.1210-11; ER.1240; ER.1282; ER.1329. Stogdell and Light continued to maintain that employees would be reprimanded if they spoke Spanish on the radio. Id.

The new rule forced Latino drivers to use their personal cell phones to communicate driving directions and safety warnings in Spanish to the Latino LEP drivers. ER.1226; ER.1282. Stogdell prohibited this as well, however, and suspended Latino driver Antonio Ordaz for two days for translating directions in Spanish on his cell phone while assisting Montes and other Latino LEP drivers. ER.1226. Once, Stogdell saw Montes discussing directions on his phone with another Spanish-speaking driver and followed after Montes, yelling, insulting, and cursing at him over the radio for “all of the coworkers” to hear. ER.1282-83; ER.810-13. As a result, Montes became so nervous that he missed his delivery job site and “could even have caused an accident.” ER.810.

In early 2010, Cervantes complained to CEMEX’s corporate office, which forwarded his complaint to Hamilton. ER.1328. In a March 2010 telephone call, Hamilton told Cervantes that “this is the U.S. In the U.S. we do speak English. The company is in the U.S.; so, therefore, you will speak English on the company radio.” ER.760. Hamilton admitted he told Cervantes that “if someone just kept speaking Spanish” it “would be considered insubordination” requiring “disciplinary” action and that Cervantes “rightfully” understood his comment to mean that Cervantes “was going to get suspended or terminated” if he violated the policy. ER.1028-29; ER.762. Hamilton also demanded that Cervantes “give him the names of the people that spoke Spanish so he could call the DMV [Division of Motor Vehicles] and have their licenses taken away.”[5] ER.761; ER.1328. Cervantes relayed Hamilton’s threats to Montes, leaving Montes fearful of losing his job. ER.1283.

Following the telephone call, Hamilton issued a memorandum confirming that he told Cervantes CEMEX drivers were required to speak English when using the company radio. ER.515. Although the memorandum expressly permitted employees to speak Spanish “outside of vehicle, break rooms, etc.,” id., Light extended the ban on Spanish to private conversations during breaks as well. Light ordered Latino employees to speak “English God Damnit!” when they were on break or dropping off tickets to the office at night. ER.773-74; ER.1249-50. Cervantes recalled Light ordering him and other Latino drivers to speak “English, goddamnit” [sic] when they were all in the batch office. ER.773-77. Coworker Rosendo Cisneros recalled that, at least five times when he spoke Spanish to another Latino employee in the office, Light yelled at him to speak English, even when he was on break. ER.1208. Ordaz recalled that Light reprimanded Montes and Cisneros to “Speak English God damn it!” at least six times in the presence of Stogdell while the employees were on breaks during a meeting. ER.1227. Gerardo Salazar and Jesus Caldera witnessed Light yelling at least twenty times at drivers to stop speaking Spanish during breaks. ER.1236; ER.1249-50.

Derogatory Slurs and Disparate Drug Testing and Discipline

Montes testified that Light humiliated him many times throughout his employment. ER.820-21. Light derided Montes, asking him if he had “shit in my head – in my brain.” ER.826. Light cursed at Montes “[a]ll the time” whenever he ordered him to do a task, including repeatedly telling him to “wash the fucking truck.” ER.828-29; see also ER.1327 (describing incident when Stogdell intentionally humiliated Montes).

Stogdell and Light also engaged in derogatory and disparaging behavior toward other Latino employees. Starting in 2009 and continuing until he was fired in August 2013, Light called Salazar “my nigger” or “mayate” (the Spanish equivalent) at least thirty to fifty times, including in front of Stogdell. ER.1237. Light also referred to Salazar as “loader monkey.” ER.1240; R.82-2 at 8. Stogdell referred to a Latino driver as “Fat Mexican.” ER.1277. In 2013, Light drew a caricature of Salazar, calling him “Asada Bin Laden,” and posted it on the batch office window “for everybody to see in the Delano plant.” ER.1240; ER.1247; ER.1287. Montes and Cervantes both saw the caricature, and Cervantes attested that it was offensive. ER.763-66; ER.1287. Light tried to hit Ordaz with a stick after he got a splinter from it, yelling at Ordaz “Goddamn it – what did you do? This is fuck[ing] bullshit!” ER.1231.

Every two months for approximately four years, from 2009 through 2012, Stogdell forced Montes and other Latino LEP drivers, including Cisneros, to read safety instructions out loud in English in front of all of the Delano plant drivers even though they could not read English, and Stogdell “laugh[ed] at [Montes] because of his difficulty in pronouncing English words.” ER.2; ER.871-73; ER.1211; ER.1287. During this time, Cisneros told Stogdell “many times” that he did not understand the safety protocols in English. ER.1211. As Cisneros explained: “If Keith really wanted me to understand the safety lessons then he would not have me try to read something that I do not understand.” Id. Cisneros said the practice left him feeling “humiliated.” Id. (Cisneros felt “this was another way [Stogdell] harassed the Mexican/Latino workers”).

Stogdell and Light drug tested and disciplined Latino employees for infractions that non-Latino employees committed without reprimand. ER.128; ER.753-55; ER.854-56; ER.1209. For example, CEMEX maintains that it requires automatic drug testing and suspension pending the results of the drug test for any employee who causes damage to company property, including a vehicle. ER.621; ER.903-04. Jim Hembree, a non-Latino driver at the Delano plant, caused such damage when he drove a CEMEX truck without disconnecting a water hose and ripped the hose off. ER1261. Light witnessed the incident and told Hembree that his mistake was “a suspendable offense” but said that if Hembree brought him a “thirty (30) case of beer,” Light would not report him. Id. Despite company policy and federal regulations, CEMEX did not drug test, suspend, or discipline Hembree in any way. Id. In 2010, non-Latino driver Jim Lowery got stuck in mud and a customer had to pull him out; he was never disciplined or drug tested. ER.1325. In 2012, Ordaz and Stogdell witnessed non-Latino employee Justin McCright destroy company property. ER.1224, 1228. Stogdell informed McCright that he witnessed the incident, but he did not take McCright to be drug tested or suspend him, and Ordaz saw McCright at work the next day and the days following. ER.1228. CEMEX admitted taking no corrective action against McCright for this 2012 incident. ER.542.

In contrast, Montes was drug tested approximately ten times for allegedly engaging in conduct that was no worse than infractions committed by non-Latino employees. ER.128-29; ER.1316 (complaining about being drug tested after becoming stuck in mud but with no damage to truck or other property; Lowery had similar incident with no consequences). Although Montes tested negative each time, ER.129, the process was nevertheless distressing and uncomfortable. ER.1316 (Montes worried about disciplinary consequences); ER.817 (Montes once forced to hold his urine for forty minutes before being drug tested). Stogdell sent Salazar to be drug tested and suspended him pending the results when Salazar complained to Stogdell after Light “got in [Salazar’s] face,” said “Fuck you, Gerardo,” and used his body to block Salazar from entering his truck to leave in 2012. ER.1240. Instead of reprimanding Light, Stogdell sent Salazar to be drug tested. Id. Another time Salazar complained to Light about discriminatory treatment of employees after Light wrote up Cervantes for failing to conduct a post-trip inspection, as company policy required at the end of drivers’ shifts. Salazar had observed Light witness, but fail to reprimand, McCright on five occasions when McCright omitted the required post-trip inspection. ER.1243.

Stogdell and Light remained in their managerial positions and continued to enforce the ban on speaking Spanish and continued to impose disparate reprimands and disciplinary actions on plaintiffs and other Latino drivers even after Cervantes and Montes filed charges of discrimination and harassment with the EEOC in May 2010 and August 2010, respectively. ER.42-46; ER.53-58; ER.1270; ER.1323. For example, during 2011 and 2012, Stogdell screamed at Montes twenty times for speaking in Spanish over the radio and continued to require drivers to read out loud in English at safety meetings. ER.871-73; ER.1208-09, ER.1325. Light referred to a Latino driver using derogatory epithets at least thirty to fifty times from 2009 to 2013. ER.1237.

In April 2012, the EEOC found reasonable cause to believe that CEMEX had subjected Cervantes and Montes to a hostile work environment and different terms and conditions of employment due to their national origin. ER.64-68. Plaintiffs filed this lawsuit in November 2012. ER.3. Stogdell stopped forcing monolingual Spanish-speakers to read out loud during safety meetings sometime thereafter. ER.1098-99. In 2013, CEMEX Regional President Steve Wise informed Bakersfield Area employees, including Stogdell, Light, and the radio dispatchers for the area, that employees could speak Spanish whenever necessary to complete their job duties. ER.1276. In August 2013, a Latino employee at the Delano plant complained about an altercation with Light. A local CEMEX HR representative investigated, and CEMEX terminated Light’s employment as a result. ER.548.

B. District Court’s Decision

The district court granted CEMEX summary judgment on plaintiffs’ hostile work environment claim on the ground that neither plaintiff could show a genuine issue of material fact concerning whether he “was subjected to verbal or physical conduct because of his national origin.” ER.13-ER.15 (emphasis added). Citing Garcia v. Spun Steak Co., 998 F.2d 1480, 1487 (9th Cir. 1993), the court concluded that CEMEX’s imposition of an English-only policy did not establish harassment based on national origin because CEMEX did not admonish or subject plaintiffs and other Hispanic employees to harassing conduct when they abided by the policy and spoke only English. ER.14-ER.15. The court also found insufficient plaintiffs’ evidence that Stogdell forced Montes to read out loud in English at safety meetings, stating that all of the employees were required to read out loud and Montes never informed his supervisors that he was uncomfortable with this treatment. ER.13-ER.14. And the court found it insufficient that Light repeatedly cursed at Montes, stating Title VII is “not a general civility code.” ER.14. The court did not consider the plaintiffs’ other evidence of hostile work environment in assessing this claim.

The court also held that the plaintiffs failed to make out a prima facie case of disparate treatment. ER.15-ER.19. Acknowledging that this Court’s decision in Spun Steak involved a disparate impact claim and the plaintiffs were alleging disparate treatment, the court nevertheless relied on Spun Steak to reject plaintiffs’ disparate treatment claim. ER.15-ER.17. The court stated that CEMEX did not violate Title VII because the company never disciplined plaintiffs for violating the policy and applied the English-only policy equally to Hispanic and non-Hispanic employees. ER.16-ER.17 (no evidence that Hispanic employees were “singled out” for violating the policy). The court also rejected plaintiffs’ claims of disparate treatment in drug testing and discipline, stating that plaintiffs were drug tested according to Department of Transportation regulations and that plaintiffs offered no or insufficient evidence that the legitimate, nondiscriminatory reasons CEMEX proffered for disciplining Latino drivers were a pretext for discrimination. ER.17-ER.18.

ARGUMENT

I. The district court erred in granting summary judgment because a jury could find that Light and Stogdell acted “because of” plaintiffs’ national origin when they ordered Latino employees not to speak Spanish in the workplace.

Title VII makes it “an unlawful employment practice for an employer … to discriminate” with respect to an employee’s “terms, conditions, or privileges of employment, because of such individual’s … national origin.” 42 U.S.C. § 2000e-2(a)(1). An employer violates this provision of Title VII when it fails to prevent or remedy harassment that is (1) because of a protected trait and (2) “sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112–15 (9th Cir. 2004) (addressing claim of hostile work environment based on race) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (addressing claim of hostile work environment based on sex). This Court applies the same standard to claims of hostile work environment based on national origin. See Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005).

Plaintiffs presented sufficient evidence for a jury to find that Light and Stogdell acted because of the plaintiffs’ national origin in imposing a no-Spanish rule on the Bakersfield Area facilities, and the district court applied faulty reasoning in concluding otherwise. The district court stated that the language requirement could not be based on the plaintiffs’ Latino national origin because Light and Stogdell required all employees to speak English, including those whose native language was English as well as those who spoke little or no English. Likewise, the district court stated that Stogdell’s public humiliation of Montes by requiring him to read out loud in English at bi-monthly safety meetings could not be based on Montes’s Latino national origin because Stogdell required all employees—English-speakers and non-English-speakers alike—to read out loud in English.

In analyzing both of these practices, however, the district court missed the point when it focused on whether English-speaking employees were subject to the same requirements. Given Light and Stogdell’s hostile manner of implementing the policy, discussed below, there is sufficient evidence for a reasonable jury to infer that Light and Stogdell’s motivation for imposing the language rule (and the reading-out-loud-in-English practice) was grounded in national origin bias or animus. See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Title VII’s intentional discrimination provision prohibits certain motives); Jones v. UPS Ground Freight, 683 F.3d 1283, 1297-99 (11th Cir. 2012) (although bananas are not inherently a racial symbol, court considered whether overall factual context would permit jury to find racial animus motivated placement of bananas on black plaintiff’s truck). The plaintiffs presented sufficient evidence of animus here.

First, Hamilton, Light and Stogdell banned the use of Spanish in radio communications knowing it would prevent Montes—whom Stogdell had hired knowing he had limited English proficiency—and other LEP Latino drivers from understanding important safety information, job instructions, and driving directions. That these CEMEX managers instituted and continued to enforce the policy despite their awareness of the safety risks and other negative ramifications the policy posed for the Latino LEP employees is evidence from which a jury could reasonably infer that national origin animus underlay their actions. See Maldonado v. City of Altus, 433 F.3d 1294, 1307–08 (10th Cir. 2006) (jury could find employer instituted English-only policy “because of” Hispanic employees’ national origin where employer knew policy would lead to harassment of Hispanic employees but did nothing to prevent or mitigate that harm), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Second, these CEMEX managers implemented the rule despite the paucity of any legitimate business reasons for it. In Maldonado, the Tenth Circuit stated that “[t]he less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language.” 433 F.3d at 1305 (reversing summary judgment on plaintiffs’ disparate impact claim). Here, apart from an oral complaint by a single employee who worked at a different Bakersfield Area location, CEMEX offered no rationale for prohibiting Spanish at the Delano plant. CEMEX had no company-wide language policy at the time, and after Hamilton, Stogdell, and Light instituted the policy in the Bakersfield Area, no other CEMEX clusters followed their example. Ultimately, a regional CEMEX manager required Light and Stogdell to rescind the policy in 2013, shortly after the plaintiffs filed this lawsuit, and CEMEX has offered no explanation why the policy suddenly became unnecessary.

CEMEX contended below that the rule was implemented in response to safety concerns expressed by an employee at the Old River plant who said he could not understand radio transmissions in Spanish. There is no evidence that this Old River employee had any need to understand radio communications between dispatchers and the Delano drivers. But to the extent a CEMEX driver’s ability to understand radio communications implicates a legitimate “safety” consideration, a jury could reasonably find that CEMEX’s English-only policy caused the exact harm that CEMEX claimed it sought to avoid: Montes and other monolingual Spanish-speakers at the Delano plant could no longer understand directions and safety information provided in English over the radio and in safety meetings. A jury would be entitled to infer from this absence of any legitimate business justification that Light and Stogdell were motivated by national origin animus. Maldonado, 433 F.3d at 1308 (jury could find that absence of any “substantial work-related reasons for the policy” suggested “true reason was illegitimate”).

Third, CEMEX’s failure to offer any rationale for Light and Stogdell’s decision to extend the ban to personal cell phone use and employee breaks—contrary to Hamilton’s March 2010 memorandum, see p.9, supra—would further permit a jury to infer that Light and Stogdell acted based on hostility toward Latino employees. See Maldonado, 433 F.3d at 1305 (inference of hostility may be reasonable where employer lacked legitimate reason for extending English-only policy to lunch hours, breaks, and private telephone conversations); EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066, 1075-76 (N.D. Tex. 2000) (finding employer’s English-only policy constituted disparate treatment based on national origin premised, in part, on employer’s extension of policy to lunch room and when employees were on break). And the manner in which Light and Stogdell enforced the prohibition by, for instance, repeatedly yelling at Latino employees to “Speak English, God damn it!” and, in one instance, chasing a Latino employee with a stick, see pp.9-10, supra, would further permit a jury to infer that national origin animus played a role in Light and Stogdell’s adoption of the policy.

Fourth, Stogdell knew that Montes could not read or understand English when he forced him to read safety instructions out loud in English in front of other Delano plant employees, and Stogdell mocked Montes’s struggling efforts. Both the humiliating nature of this practice, which persisted for four years, and the fact that it prevented Montes from understanding important safety instructions—the purported reason for these meetings—provide additional evidence from which a jury could infer Stogdell’s motivation was based on plaintiffs’ national origin. See Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 848-49 (9th Cir. 2004) (supervisor’s mocking of employee’s accent and claimed inability to understand employee was evidence of intentional national origin discrimination); Maldonado, 433 F.3d at 1307–08 (adopting English-only policy despite knowing it would likely lead to harassment was evidence of intentional national origin discrimination).

Fifth, when CEMEX forwarded Cervantes’ 2010 complaint about the language policy to Hamilton, Hamilton not only threatened Cervantes with suspension if he continued to speak Spanish over the radio—even to translate instructions into Spanish for the drivers who did not understand English—he also demanded that Cervantes identify the Spanish-speaking employees “so he could call the DMV and have their licenses taken away.” See p.8, supra. A jury would be entitled to infer national origin animus from Hamilton’s threat that Spanish-speaking employees would lose their driver’s licenses because they lacked English language skills.

This Court has recognized, as do the Commission’s guidelines, the close nexus between language policies and national origin discrimination. In Spun Steak, this Court stated that “an individual’s primary language can be an important link to his ethnic culture and identity.” 998 F.2d at 1487. Similarly, the Commission defines a national origin group as one “sharing a common language, culture, ancestry, and/or other similar social characteristics.” EEOC Compliance Manual § 13.II.B. (Dec. 2002), www.eeoc.gov/policy/docs/national-origin.html. The Commission’s guidelines state that national origin discrimination includes the denial of equal employment opportunity because the individual shares “linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1; see Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 154 F.3d 1117, 1119 & n.5 (9th Cir. 1998) (citing with approval EEOC’s definition of national origin in 29 C.F.R. § 1606.1). As this Court has noted, “The close relationship between language and national origin led the EEOC to classify discrimination based on ‘linguistic characteristics’ as unlawful under Title VII.” Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir. 2003).

In Spun Steak, this Court instructed courts to consider both “the particular factual context” of a claim involving a language policy and “the totality of the circumstances.” 998 F.2d at 1489. That the Delano plant employees on whom the negative effects of CEMEX’s English-only policy fell were all of Mexican national origin and were linked by their common language (Spanish) are factors from which a jury can infer discriminatory animus here. Maldonado, 433 F.3d at 1308 (“[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including … that the [policy] bears more heavily on one [protected group] than another.”) (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). The record further shows, as noted above, that Light and Stogdell lacked any legitimate business need for the policy and enforced it in a punitive, demeaning, and humiliating manner. Altogether, this evidence would suffice for a jury to find these decisionmakers acted “because of” the plaintiffs’ national origin. Id.

This Court, however, need not reach the question of whether this evidence alone would suffice to establish discriminatory motive, because Cervantes and Montes also offered evidence of an atmosphere “infused with hostility toward Hispanic workers.” Spun Steak, 998 F.2d at 1489. Light referred to one Latino employee as “nigger,” “mayate” (the Spanish equivalent), and “monkey.” He drew a derogatory caricature of a Latino employee and posted it for all employees to see. Stogdell called another Latino employee “Fat Mexican.” See p.10, supra. And when Cervantes complained to Hamilton that the English-only policy was impeding some Latino employees from performing their jobs, Hamilton responded, “This is the U.S. In the U.S., we do speak English.” He then demanded Cervantes provide the names of employees who did not speak English, stating he planned to have them fired. See p.8, supra.

In assessing whether the discriminatory treatment in this case was based on national origin, it is immaterial that some of the plaintiffs’ evidence of animus may involve discriminatory comments or conduct that plaintiffs, themselves, did not witness. See, e.g. pp.9-10, supra. As this Court has explained, “ethnically biased remarks” by a decision-maker, even remarks not made to or directly targeting the plaintiff, may nonetheless be evidence of a supervisor’s discriminatory animus based on national origin. See Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000) (discriminatory intent against Asian plaintiff demonstrated by decision-maker’s comment that “two Chinks” in his department were “more than enough,” “even though [the comment] was uttered during consideration of a different Asian-American’s potential employment”). Combined with plaintiffs’ other evidence discussed above, this evidence of derogatory and “ethnically biased remarks” from “person[s] in … a position of authority” is sufficient for a jury to infer that the CEMEX managers who adopted, enforced, and defended this no-Spanish policy acted with discriminatory intent based on the plaintiffs’ national origin. See Fonseca, 374 F.3d at 848 (quoting Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998)).

II. Plaintiffs’ evidence is sufficient for a jury to find a hostile work environment based on national origin that was both severe and pervasive.

Because the district court concluded, incorrectly, that CEMEX’s English-only policy was not based on plaintiffs’ national origin, it did not address the plaintiffs’ claim that the workplace was sufficiently hostile to violate Title VII. A plaintiff establishes a hostile work environment claim by showing unwelcome conduct that was both subjectively and objectively “sufficiently severe or pervasive to alter the conditions of [the] employment and create an abusive work environment.” Galdamez, 415 F.3d at 1023 (citations omitted). The Court looks to “all of the circumstances, including the frequency, severity, and nature (i.e., physically threatening or humiliating as opposed to merely verbally offensive) of the conduct.” Id. (citation omitted). The objective hostility is assessed “from the perspective of a reasonable person belonging to the … ethnic group of the plaintiff,” and the “required severity … varies inversely with its pervasiveness and frequency.” Id. (citing and quoting McGinest, 360 F.3d at 1113, 1115).

The Spun Steak Court’s application of the general hostile work environment standard to a language policy supports the plaintiffs’ claims in this case. This Court reiterated that a court must consider the totality of circumstances in determining whether a language policy and its manner of enforcement, combined with other discriminatory behavior, creates an overall environment of discrimination. Spun Steak, 998 F.2d at 1489. Although this Court rejected the plaintiffs’ argument that a limited English-only policy established a prima facie case of disparate impact, it did so in the context of a policy that allowed all employees to speak Spanish during breaks and certain employees to speak Spanish even while working. Id. at 1483. Furthermore, almost all of Spun Steak’s employees were fully bilingual and able to comply with the policy. Id. With respect to the two employees who did not speak English, this Court remanded the case for a determination of whether they were adversely affected by the policy. Id. at 1483, 1488 (whether a particular employee speaks so little English as to be effectively denied privilege of speaking on the job is a fact question making summary judgment improper). And this Court acknowledged, moreover, that under different circumstances, a language policy could be so broad or “enforced in such a draconian manner that the enforcement itself amounts to harassment.” Id. at 1489 (recognizing that “English-only rules … when combined with other discriminatory behavior, [can] contribute to an overall environment of discrimination”).

Here, a reasonable jury could find that the plaintiffs offered evidence of “draconian” enforcement. The evidence shows not only that Stogdell and Light adopted this ad hoc no-Spanish rule without proof of a legitimate need for it, but also that they then expanded the policy’s scope from banning Spanish in radio communications to banning Spanish even during employee breaks and on personal cell phone calls. See Maldonado, 433 F.3d at 1305 (hostility toward ethnic group may be inferred from absence of legitimate reason for expanding language policy to breaks and private telephone calls); Premier Operator Servs., 113 F. Supp. 2d at 1073 (criticizing employer’s implementation of language policy for “forc[ing Hispanic employees] to be constantly on guard to avoid uttering their native language, even in their most private moments in the lunch room or on a break”). Plaintiffs also presented evidence of the hostile manner in which Light and Stogdell implemented the policy: yelling at them, threatening discipline or discharge if they spoke Spanish, and cursing at them for speaking Spanish even when it was necessary simply to complete assigned job duties or to assist a co-worker in completing his assigned work. Indeed, Montes described instances where Stogdell’s conduct relating to the language policy caused Montes such anxiety that he became lost while trying to deliver loads and, once, nearly had an accident as a direct result of Stogdell’s conduct.

And plaintiffs’ evidence demonstrated hostility that pervaded the workplace even beyond Light and Stogdell’s enforcement of the language policy. Plaintiffs presented evidence that these two managers called Latino drivers ethnically derisive names, posted a caricature of one Latino driver that both plaintiffs saw, and humiliated Latino employees in front of their co-workers. See pp.10-11, supra. The fact that this conduct was perpetrated by the plaintiffs’ managers served to heighten the severity of this treatment. See Steck v. Francis, 365 F. Supp. 2d 951, 969-71 (N.D. Iowa 2005), and cases cited therein.

Independent of the language rule’s enforcement, the plaintiffs’ evidence that they were disciplined more severely than non-Latino employees who committed the same or similar infractions (see pp.11-13, supra) provides further grounds for a jury to find a hostile work environment. In Spun Steak, this Court stated that an English-only policy combined with evidence of “other discriminatory behavior” can establish a Title VII hostile work environment violation by demonstrating a workplace atmosphere of “isolation, inferiority or intimidation” that is “infused with hostility toward Hispanic workers.” 998 F.2d at 1489. Plaintiffs here offered evidence that CEMEX treated Latino and non-Latino employees differently for similar workplace infractions. For example, Hembree, a non-Latino employee, attested that after he committed a “suspendable offense,” Light did not drug test or suspend him but instead offered him a pass if he brought Light a “thirty (30) case of beer.” Montes, in contrast, was drug tested multiple times for similar offenses. See pp.11-12, supra. Another Latino employee complained to Stogdell that Light had acted abusively toward him. Instead of addressing Light’s conduct, Stogdell sent the Latino employee to be drug tested and suspended him pending the results. See pp.12-13, supra. Such evidence of disparate treatment provides a further factual basis for the plaintiffs’ hostile work environment claim. See Fonseca, 374 F.3d at 849 (reversing grant of summary judgment on Title VII disparate treatment claim where employee provided evidence that the Hispanic employee “was disciplined for an accident while whites who caused similar accidents were not”); see also Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 721-22 (6th Cir. 2012) (Stranch, J., dissenting) (listing instances of disparate discipline and discriminatory treatment of black employees as further evidence of hostile work environment based on race); Motley-Ivey v. District of Columbia, 923 F. Supp. 2d 222, 232-35 (D.D.C. 2013) (same for gender-based claim of hostile work environment).

Overall, the plaintiffs’ evidence shows that between 2010 and 2013, there existed a pervasively hostile environment at the Delano plant that was frequently humiliating and sometimes physically threatening. Plaintiffs offered enough evidence for a jury to find that this hostility was sufficiently severe or pervasive to violate Title VII. As the EEOC’s guidelines observe, English-only workplace policies have the potential to “create an atmosphere of inferiority, isolation, and intimidation” that could, in turn, create a “discriminatory working environment” because of national origin. 29 C.F.R. § 1606.7(a). This is even more the case when the ban, as here, is implemented in a punitive manner and impedes employees from performing their jobs.

In Maldonado, the Tenth Circuit held, under similar circumstances, that a jury could find the employer violated Title VII. As here, the City of Altus adopted a rule that all employees speak only English for radio transmissions after a single employee complained about radio conversations in Spanish, and, as here, Latino employees were the only significant national-origin minority group affected by the directive. 433 F.3d at 1298-99. The Tenth Circuit reversed summary judgment on the ground that a jury could find intentional discrimination on the part of the City based on, among other things, the Mayor’s public reference to the Spanish language as “garbage” and the fact that adoption of the language policy led to taunting and teasing of Hispanic employees. Id. at 1307–08. Similarly here, the managers responsible for implementing the policy did so despite knowing some Latino employees were unable to perform their jobs as a result and, in addition, referred to Latino employees by ethnically-derogatory terms and engaged in other conduct designed to humiliate these employees. A reasonable jury could find, on this record, that the no-Spanish policy imposed by Light and Stogdell created a hostile work environment for the Latino employees.

The district court erred by focusing on whether Light and Stogdell harassed the plaintiffs when they complied with the language policy, suggesting their hostile conduct was acceptable as long as it occurred only when employees were disobeying the policy. The district court stated:

Here, the allegations and evidence indicate that Montes was admonished and yelled at because Montes was speaking a language other than English when his supervisors instructed him and other employees to speak only English at work, including on the work radio.… There is no evidence to suggest that Montes would have been admonished or yelled at if Montes was speaking English at work.

ER.14. This analysis ignores both the extent to which the ban on speaking Spanish impeded Montes’ ability to do his job and the abusiveness of Stogdell and Light’s reactions when Montes spoke Spanish in an effort to complete his work. See pp.6-12, supra. The analysis also ignores the harshness of Hamilton, Stogdell, and Light’s responses to Cervantes when he objected to the policy and their threats to discipline or suspend him when they learned that he was translating work-related instructions into Spanish for Montes and other LEP Latino drivers. See pp.6-9, supra. Such evidence would suffice for a jury to find Montes and Cervantes’s work environments sufficiently hostile to violate Title VII.

To establish a hostile work environment claim, the conduct must be either severe or pervasive. Here a jury could find it was both. Stogdell’s practice of requiring Montes to read out loud in English at bi-monthly employee meetings occurred continuously for approximately two years after CEMEX received plaintiffs’ EEOC charges. In assessing the severity of this practice, a jury would be entitled to consider that Montes’s humiliation was at the hand of a manager and in front of Montes’s co-workers. A jury would be further entitled to consider that, despite Cervantes’s complaints to numerous CEMEX officials throughout this time, CEMEX allowed Light and Stogdell to continue banning the use of Spanish over the company radio until a CEMEX district manager brought an end to the practice in 2013. See Galdamez, 415 F.3d at 1024 (reversing summary judgment where employer knew about harassment yet failed to promptly engage in remedial measures “reasonably calculated to end the harassment”) (quoting McGinest, 360 F.3d at 1120).

Thus, the plaintiffs presented evidence of a workplace infused with hostility. Although this hostility was created, in significant part, by Light and Stogdell’s implementation of their ad hoc English-only policy, it was also reflected in other forms of offensive and disparate treatment. By disregarding this evidence and granting summary judgment based on Spun Steak, the district court erred.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s grant of summary judgment to CEMEX and remand this matter for a trial on the plaintiffs’ Title VII claim of hostile work environment/disparate treatment.

[1] The Commission takes no position on any other issue in this appeal.

[3] The Bakersfield Area, Modesto Area, and Fresno Area each had its own Area Manager and comprised CEMEX’s Central Valley cluster. ER.1065; ER.1076-77.

[4] The district court referred to CEMEX’s unwritten, ad hoc rule prohibiting employees in the Bakersfield Area from speaking Spanish as an “English-only” policy. See, e.g., ER.12. Because the record indicates that Stogdell, Light, and Hamilton implemented a rule directed only at Spanish speakers, requiring that they not speak Spanish and only speak English, the Commission refers to the language policy as a no-Spanish rule.

[5] Hamilton admitted that the ban on speaking Spanish was not based on any Department of Transportation regulation regarding English-proficiency requirements for drivers. ER.1026-ER.1027.