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EMPLOYMENT LAW — 2/13/06

Hispanic employees entitled to trial on city's English-only policy

Triable issues existed as to whether city defendants' English-only policy created a hostile work environment for a group of Hispanic employees, concluded the Tenth Circuit Court of Appeals. (Maldonado v City of Altus, Okla, 10thCir, 87 EPD ¶42,207)

At issue was the city's policy, which required employees to speak English in all work related and business communications, except when necessary to communicate with a citizen/business owner in their own native language. The policy exempted private communications between coworkers while they were on an approved lunch hour, break or before and after work, so long as city property was not used for the communication. The policy also excused private communications between employees and their family members that were "limited in time" and "not disruptive to the work environment." Approximately 29 city employees were Hispanic, "the only significant national-origin minority group affected by the policy."

The city claimed that the policy was promulgated to "prevent misunderstandings and to promote and enhance safe work practices." However, the employees presented evidence that they "were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish speaker was present, even during breaks, lunch hours, and private telephone conversations." As a result, the employees alleged that the policy created a hostile work environment for Hispanics based on their race and national origin. The employees sued, contending among other things, that the policy created: (1) a disparate impact under Title VII; and (2) a disparate treatment under Title VII, Section 1981 and Section 1983. The district court granted summary judgment in favor of the city on all claims.

In order to establish a disparate impact under Title VII, the employees had to show that the city's policy: (1) affected Hispanics more harshly than any other group; and (2) was not justified by a business necessity. The Tenth Circuit rejected the district court's finding that the employees failed to establish a disparate impact simply because they claimed "no discrimination with respect to their pay or benefits, their hours of work, or their job duties." Although hostile work environment claims are typically brought as disparate treatment claims, the circuit court explained that the scope of Title VII was not limited solely to economic discrimination, so there was no reason to prohibit the employees' disparate impact claims because they were predicated on a hostile work environment.

While the employees' general allegations of "ethnic taunting" and feeling "like second-class citizens" might not create a hostile work environment, other considerations with respect to the policy itself created a prima facie case of disparate impact. The fact that the employees presented evidence that the policy was extended beyond its written terms to forbid them from using their preferred language during "lunch hours, breaks, and even private telephone conversations" created triable issues for a jury. Accordingly, the Tenth Circuit concluded that a jury should be permitted to determine whether the impact of the policy on Hispanic employees was "sufficiently severe or pervasive" to alter their conditions of employment and create a hostile work environment.

The Tenth Circuit also found that the district court erred in concluding that the city provided an adequate business justification for its policy. Given that the employees produced evidence of the ways they were kept from using their preferred language, which the city conceded there was no business justification for, evidence of business necessity was scant. Even the district court admitted that "[t]here was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy."

Additionally, the Tenth Circuit held that a jury should also be permitted to hear the employees’ Title VII, Section 1981 and Section 1983 disparate treatment claims related to the city's policy.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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