News
Labor/Employment
Aug. 7, 2002
Bilingual Liberties
Forum Column - By Gerald M. Sato - This article analyzes Government Code Section 12951, which was added to the Fair Employment and Housing Act effective Jan. 1 and generally prohibits English-only and other workplace language restrictions. But this article also is about how legal ideas are born, die and sometimes come to be reborn again.
Forum Column
By Gerald M. Sato
This article analyzes Government Code Section 12951, which was added to the Fair Employment and Housing Act effective Jan. 1 and generally prohibits English-only and other workplace language restrictions. But this article also is about how legal ideas are born, die and sometimes come to be reborn again.
In the mid-1980s, I followed intently a news story about a dispute between bilingual court clerks and their three employers, the judges of the South Gate Municipal Court, over an English-only work rule (which had begun life as a specific prohibition against Spanish) enforceable at all times except while the clerks conducted business with the Spanish-speaking public.
I daydreamed about representing the clerks. The English-only rule seemed to me to be unutterably offensive. How delighted I was when one of the clerks, Alva Gutierrez, sought representation by my then-employer - Allred, Maroko, Goldberg & Ribakoff in Los Angeles - and the partners assigned me to prepare her case for a federal lawsuit.
I hoped to establish that choice of language is so intertwined with national origin that the mere existence of a language-restriction rule was prima facie evidence of unlawful discrimination, a position endorsed by an already-existing regulation of the Equal Employment Opportunity Commission requiring a "business necessity" to justify English-only rules.
I disagreed with an older 5th U.S. Circuit Court of Appeals decision, Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), that held that an English-only rule cannot constitute national-origin discrimination because employees can comply with the restriction: My grandparents came from Japan, and if my employer were to impose a totally gratuitous prohibition against speaking Japanese, I would feel my work environment to have become markedly hostile - even though I'm a functional illiterate in the Japanese language.
In 1985, Judge Richard Gadbois Jr. agreed with our position and granted a preliminary injunction against the English-only rule, which the 9th Circuit upheld in Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031 (9th Cir. 1988). The 9th Circuit rejected all justifications offered for the rule; for example, the inability of supervisors to understand Spanish was no excuse; after all, the clerks were expected as part of their work to communicate in Spanish with the public.
Instead, the court held that an English-only rule constituted national-origin discrimination unless it was required by a "business necessity," which the court defined as "essential, the purpose compelling" and without any possible "less restrictive alternative" to accomplish the same purpose.
Without expressly stating so, the Gutierrez court defined "business necessity" as the equivalent of "strict scrutiny" in constitutional law, a standard that professor Gerald Gunther once observed to be "strict" in theory and "fatal" in fact.
The 9th Circuit rejected rehearing en banc. A dissenting opinion by Judge Alex Kozinski urged the other judges to follow the 1981 5th Circuit opinion in Garcia, which had held that an English-only work rule could never be national-origin discrimination.
In 1989, the U.S. Supreme Court vacated Gutierrez as moot. The justices did not elaborate on why they had found mootness. Perhaps it was because Alva Gutierrez had no real desire to prosecute her case after settling with two of the three judges (who promised never to enforce the rule). The nonsettling judge was the only party to seek certiorari.
To my disappointment, in 1993, the 9th Circuit repudiated Gutierrez expressly in Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), and held that an English-only work rule did not, standing alone, constitute national-origin discrimination. Spun Steak found the Equal Employment Opportunity Commission regulation on language restriction rules to be inconsistent with Title VII and therefore invalid.
The rule from Gutierrez - that language restrictions in the workplace were unlawfully discriminatory unless justified by a compelling business necessity - was dead. I'd represented Gutierrez during the three years of her litigation and felt like a good chunk of my career also had died.
Imagine my astonishment when I discovered that California had given rebirth to the Gutierrez rule effective New Year's Day. On Sept. 17, Gov. Gray Davis, with the attention of most people still consumed by the Sept. 11 terrorist attacks, signed into law Section 12951, declaring language-restriction rules in the workplace to be presumptively in violation of the law.
The new law does not require the plaintiff to prove any causal link between the language-restriction rule and an intent to discriminate on the basis of national origin. Rather, the new law presumes that "[i]t is an unlawful employment practice for an employer ... to adopt or enforce a policy that limits or prohibits the use of any language in any workplace" unless two conditions exist: "(1) The language restriction is justified by a business necessity. (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction."
The key provision of the new statute is its definition of "business necessity" which, like the Gutierrez definition, approaches the near-impossible standard of strict scrutiny: "'business necessity' means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."
This final reference to a "lesser discriminatory impact" raises the question of "impact upon whom"? If the answer is "persons of a particular national origin," then the language is superfluous: If language-restriction rules are presumptively unlawful even without proof of a negative impact upon people of a particular national origin, why should the absence of a practice with a "lesser discriminatory impact" be a defense?
In intentional discrimination cases, the burden of persuasion always remains with the plaintiff to prove the unlawful state of mind. However, under Section 12951, the plaintiff needs only to prove the existence of the language rule; the burden of persuasion then shifts to the employer to prove the "business necessity."
In an additional departure from intentional discrimination cases, if a plaintiff can offer at least some evidence from which an inference of discriminatory intent underlying the employer's decision can be drawn, only the burden of production shifts to the employer to "articulate" some kind of nondiscriminatory business necessity. An employer escapes liability if it "honestly believes" its reasons for the action, even if they are "foolish or trivial or baseless." Kariaotis v. Navistar Intern. Transp. Corp., 131 F.3d 672 (7th Cir. 1997); see also Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317 (2000).
Under Section 12951, however, the employer cannot escape liability merely by "articulating" a reason for the language restriction, nor will it be a defense that the employer "honestly believed" that the restriction fulfilled the business necessity. The employer must prove the business necessity. The best of intentions is not a defense.
The new statute's legacy may not implicate the law of the workplace so much as the law of unintended consequences: Invidious discrimination by government based on suspect classifications such as race, national origin or religion has long been held subject to the strict-scrutiny standard, but never a classification based upon language.
Will a plaintiff alleging intentional race discrimination now demand that his employer's actions toward him be measured against a stringent "business necessity" standard similar to the new statute? Why shouldn't the ultimate burden of persuasion shift to the employer once the plaintiff offers evidence of any prima facie case under state law?
To put it another way, why should liability for language discrimination be easier to establish than for race or national origin discrimination?
Statutory law always plays "catch up" with changes in society. One hopes that Section 12951 came into existence with little public debate because employers, hopefully more aware today of the diversity of their pools of workers than 15 years ago, are less likely to enforce a gratuitous language-restriction rule.
I presently work for the city of Los Angeles. A department manager attempting to impose such a rule would only be inviting a workplace disaster.
H.L. Mencken once stated, ironically, "If English was good enough for Jesus Christ, it's good enough for me." Section 12951 requires an employer to justify a language-restriction rule with something more than citation to scripture. The statute invites jurists, lawyers and lawmakers to start from scratch in re-conceptualizing the entire spectrum of employment law.
Gerald M. Sato is an attorney with the Los Angeles city attorney's office.
By Gerald M. Sato
This article analyzes Government Code Section 12951, which was added to the Fair Employment and Housing Act effective Jan. 1 and generally prohibits English-only and other workplace language restrictions. But this article also is about how legal ideas are born, die and sometimes come to be reborn again.
In the mid-1980s, I followed intently a news story about a dispute between bilingual court clerks and their three employers, the judges of the South Gate Municipal Court, over an English-only work rule (which had begun life as a specific prohibition against Spanish) enforceable at all times except while the clerks conducted business with the Spanish-speaking public.
I daydreamed about representing the clerks. The English-only rule seemed to me to be unutterably offensive. How delighted I was when one of the clerks, Alva Gutierrez, sought representation by my then-employer - Allred, Maroko, Goldberg & Ribakoff in Los Angeles - and the partners assigned me to prepare her case for a federal lawsuit.
I hoped to establish that choice of language is so intertwined with national origin that the mere existence of a language-restriction rule was prima facie evidence of unlawful discrimination, a position endorsed by an already-existing regulation of the Equal Employment Opportunity Commission requiring a "business necessity" to justify English-only rules.
I disagreed with an older 5th U.S. Circuit Court of Appeals decision, Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), that held that an English-only rule cannot constitute national-origin discrimination because employees can comply with the restriction: My grandparents came from Japan, and if my employer were to impose a totally gratuitous prohibition against speaking Japanese, I would feel my work environment to have become markedly hostile - even though I'm a functional illiterate in the Japanese language.
In 1985, Judge Richard Gadbois Jr. agreed with our position and granted a preliminary injunction against the English-only rule, which the 9th Circuit upheld in Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d 1031 (9th Cir. 1988). The 9th Circuit rejected all justifications offered for the rule; for example, the inability of supervisors to understand Spanish was no excuse; after all, the clerks were expected as part of their work to communicate in Spanish with the public.
Instead, the court held that an English-only rule constituted national-origin discrimination unless it was required by a "business necessity," which the court defined as "essential, the purpose compelling" and without any possible "less restrictive alternative" to accomplish the same purpose.
Without expressly stating so, the Gutierrez court defined "business necessity" as the equivalent of "strict scrutiny" in constitutional law, a standard that professor Gerald Gunther once observed to be "strict" in theory and "fatal" in fact.
The 9th Circuit rejected rehearing en banc. A dissenting opinion by Judge Alex Kozinski urged the other judges to follow the 1981 5th Circuit opinion in Garcia, which had held that an English-only work rule could never be national-origin discrimination.
In 1989, the U.S. Supreme Court vacated Gutierrez as moot. The justices did not elaborate on why they had found mootness. Perhaps it was because Alva Gutierrez had no real desire to prosecute her case after settling with two of the three judges (who promised never to enforce the rule). The nonsettling judge was the only party to seek certiorari.
To my disappointment, in 1993, the 9th Circuit repudiated Gutierrez expressly in Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), and held that an English-only work rule did not, standing alone, constitute national-origin discrimination. Spun Steak found the Equal Employment Opportunity Commission regulation on language restriction rules to be inconsistent with Title VII and therefore invalid.
The rule from Gutierrez - that language restrictions in the workplace were unlawfully discriminatory unless justified by a compelling business necessity - was dead. I'd represented Gutierrez during the three years of her litigation and felt like a good chunk of my career also had died.
Imagine my astonishment when I discovered that California had given rebirth to the Gutierrez rule effective New Year's Day. On Sept. 17, Gov. Gray Davis, with the attention of most people still consumed by the Sept. 11 terrorist attacks, signed into law Section 12951, declaring language-restriction rules in the workplace to be presumptively in violation of the law.
The new law does not require the plaintiff to prove any causal link between the language-restriction rule and an intent to discriminate on the basis of national origin. Rather, the new law presumes that "[i]t is an unlawful employment practice for an employer ... to adopt or enforce a policy that limits or prohibits the use of any language in any workplace" unless two conditions exist: "(1) The language restriction is justified by a business necessity. (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction."
The key provision of the new statute is its definition of "business necessity" which, like the Gutierrez definition, approaches the near-impossible standard of strict scrutiny: "'business necessity' means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."
This final reference to a "lesser discriminatory impact" raises the question of "impact upon whom"? If the answer is "persons of a particular national origin," then the language is superfluous: If language-restriction rules are presumptively unlawful even without proof of a negative impact upon people of a particular national origin, why should the absence of a practice with a "lesser discriminatory impact" be a defense?
In intentional discrimination cases, the burden of persuasion always remains with the plaintiff to prove the unlawful state of mind. However, under Section 12951, the plaintiff needs only to prove the existence of the language rule; the burden of persuasion then shifts to the employer to prove the "business necessity."
In an additional departure from intentional discrimination cases, if a plaintiff can offer at least some evidence from which an inference of discriminatory intent underlying the employer's decision can be drawn, only the burden of production shifts to the employer to "articulate" some kind of nondiscriminatory business necessity. An employer escapes liability if it "honestly believes" its reasons for the action, even if they are "foolish or trivial or baseless." Kariaotis v. Navistar Intern. Transp. Corp., 131 F.3d 672 (7th Cir. 1997); see also Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317 (2000).
Under Section 12951, however, the employer cannot escape liability merely by "articulating" a reason for the language restriction, nor will it be a defense that the employer "honestly believed" that the restriction fulfilled the business necessity. The employer must prove the business necessity. The best of intentions is not a defense.
The new statute's legacy may not implicate the law of the workplace so much as the law of unintended consequences: Invidious discrimination by government based on suspect classifications such as race, national origin or religion has long been held subject to the strict-scrutiny standard, but never a classification based upon language.
Will a plaintiff alleging intentional race discrimination now demand that his employer's actions toward him be measured against a stringent "business necessity" standard similar to the new statute? Why shouldn't the ultimate burden of persuasion shift to the employer once the plaintiff offers evidence of any prima facie case under state law?
To put it another way, why should liability for language discrimination be easier to establish than for race or national origin discrimination?
Statutory law always plays "catch up" with changes in society. One hopes that Section 12951 came into existence with little public debate because employers, hopefully more aware today of the diversity of their pools of workers than 15 years ago, are less likely to enforce a gratuitous language-restriction rule.
I presently work for the city of Los Angeles. A department manager attempting to impose such a rule would only be inviting a workplace disaster.
H.L. Mencken once stated, ironically, "If English was good enough for Jesus Christ, it's good enough for me." Section 12951 requires an employer to justify a language-restriction rule with something more than citation to scripture. The statute invites jurists, lawyers and lawmakers to start from scratch in re-conceptualizing the entire spectrum of employment law.
Gerald M. Sato is an attorney with the Los Angeles city attorney's office.
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