JULY 2011

U.S. COMMISSION ON CIVIL RIGHTS

BRIEFING

REPORT

IN THE WORKPLACE

ENGLISH ONLY POLICIES

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Visit us on the Web: www.usccr.gov
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are being deprived of their right to vote by 

reason of their race, color, religion, sex, age, disability, or national origin, or by reason of 

fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of 

the laws under the Constitution because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, 

or in the administration of justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial 

of equal protection of the laws because of race, color, religion, sex, age, disability, or 

national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal protection of the laws. 

MEMBERS OF THE COMMISSION IN 2010 CURRENT MEMBERS OF THE COMMISSION

Gerald Reynolds, Chairman Martin Castro, Chairman

Abigail Thernstrom, Vice Chair Abigail Thernstrom, Vice Chair

Todd Gaziano Roberta Achtenberg

Gail Heriot Todd Gaziano

Peter Kirsanow Gail Heriot

Arlan Melendez Peter Kirsanow

Ashley Taylor Dina Titus

Michael Yaki Michael Yaki

U.S. Commission on Civil Rights

624 Ninth Street, NW

Washington, DC 20425

(202) 376-8128 voice

www.usccr.gov

This report is available from our publications office ((202) 376–8128) on disk in ASCII Text and Microsoft Word 

2003 for persons with visual impairments. Hearing-impaired persons may dial 711 from any U.S. location for relay 

services.
English Only Policies 

In the Workplace 

A Briefing Before 

The United States Commission on Civil Rights 

Held in Washington, DC 

Briefing Report 





 

Table of Contents 

Executive Summary .................................................................................................................. 1

Findings and Recommendations ............................................................................................... 4

Summary of Proceedings .......................................................................................................... 7

Panel 1 ................................................................................................................................... 7

Reed Russell, Legal Counsel, Equal Employment Opportunity Commission ..................... 7

Panel 2 ................................................................................................................................... 8

Timothy J. Riordan, Partner, Defrees & Fiske ..................................................................... 8

K.C. McAlpin, Executive Director, ProEnglish ................................................................... 9

Richard Kidman, Owner, RD’s Drive-In Restaurant, Page, Arizona ................................. 10

Linda Chavez, Chairman, Center for Equal Opportunity ................................................... 11

Discussion ........................................................................................................................... 12

Speaker Statements ................................................................................................................. 18

Reed Russell ....................................................................................................................... 18

Timothy J. Riordan ............................................................................................................. 21

K.C. McAlpin ..................................................................................................................... 25

Richard Kidman .................................................................................................................. 52

Linda Chavez ...................................................................................................................... 55

Kerry O’Brien ..................................................................................................................... 73

Laura Brown ....................................................................................................................... 74 

Speaker Biographies....................................................................................76 

Commissioner Statements...............................................................................81 

Vice Chair Thernstrom Statement ...................................................................................... 81 

Joint Dissent of the Chairman and Commissioners Achtenberg and Titus...................83 

Commissioner Gaziano Statement-Rebuttal....... ...............................................90 

 Commissioner Heriot Statement-Rebuttal .......................................................................... 92

Vice Chair Thernstrom Rebuttal..................................................................111 

 Commissioner Kirsanow Rebuttal................................................................112

Executive Summary 1 

Executive Summary 

In recent years, some employers have attempted to supervise their bilingual employees by 

specifying English as the common language of the workplace, meaning that their employees 

have been required to speak English rather than another language while on the job. Among 

the reasons employers give for these rules are (1) the need for more effective supervision; (2) 

the need to ensure optimal communication so as to ensure safety, quality, etc.; (3) the need to 

avoid unnecessary friction as employees wonder whether others are talking about them and 

what they are saying, especially when employee relations have a racial or gender-related 

dimension to them; and (4) the need to show respect for customers who may be similarly put 

off by conversations they cannot understand. The EEOC has taken the position that these 

“English Only” policies frequently violate the law.1

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis 

of national origin. Employers may (and frequently do) insist that an employee be proficient 

in English or in some other particular language, but under Title VII they cannot insist that 

these employees be native speakers. The EEOC takes the position that employers whose 

workforce includes employees who are not native English speakers cannot specify English as 

the common workplace language without potentially violating Title VII using disparate 

impact analysis. It has issued the following guidelines: 

Section 1606.7 – Speak English Only Rules 

(a) When applied at all times. A rule requiring employees to speak only English at all 

times in the workplace is a burdensome term and condition of employment. The 

primary language of an individual is often an essential national origin characteristic. 

Prohibiting employees at all times, in the workplace, from speaking their primary 

language or the language they speak most comfortably, disadvantages an individual’s 

employment opportunities on the basis of national origin. It may also create an 

atmosphere of inferiority, isolation and intimidation based on national origin which 

could result in a discriminatory working environment. Therefore, the Commission 

will presume that such a rule violates Title VII and will closely scrutinize it. 

(b) When applied only at certain times. An employer may have a rule requiring that 

employees speak only in English at certain times where the employer can show that 

the rule is justified by business necessity. 

Several courts have rejected or noted conflicts in court decisions on these guidelines in cases 

brought by bilingual employees who prefer to speak their native tongue on the job. See, e.g., 

Garcia v. Spun Steak, 998 F.2d 1480, 1489 (9th Cir. 1993); Pacheco v. New York 

 

1

 29 C.F.R. § 1606.7 (2010). 
2 Executive Summary

Presbyterian Hosp., 593 F.Supp.2d 599, 613 n. 6 (S.D.N.Y. 2009); Kania v. Archdiocese of 

Philadelphia, 14 F. Supp.2d 730, 735 (E.D. Pa. 1998).2 

The Commission examined the EEOC’s enforcement policies in this employment context. 

For example, should an employer, some of whose employees are bilingual, have the legal 

authority to specify English as the language of the workplace? Do employers have that 

authority under current law? Do employers understand the law as it applies to their situation? 

What motivates an employer to require its employees to speak English in the workplace? 

What happens to workplace communications when an employer is prohibited from 

specifying English in the workplace? What happens to customer relations or to employee 

harmony? Are employers currently dissuaded from specifying English on account of EEOC 

guidelines? Are employers exposing themselves to potential liability for failing to control 

racial and sexual comments in other languages by employees? Has any employer who 

attempted (but failed) to impose an “English Only” rule in order to better police racially- or 

sexually-charged employee conduct ever been sued for permitting a racially or sexually 

hostile working environment? How vigorously does the EEOC enforce its guidelines? 

The U.S. Commission on Civil Rights convened a briefing of experts on December 12, 2008 

to address these questions. A transcript of the briefing is available on the Commission’s 

website, www.usccr.gov, and by request from the Publications Office, U.S. Commission on 

Civil Rights, 624 Ninth Street, NW, Room 600, Washington, DC 20425, (202) 376-8128, 

publications@usccr.gov. 

Two panels were assembled. The first panel was reserved for Reed Russell, Legal Counsel of 

the Equal Employment Opportunity Commission (EEOC), who told Commissioners that the 

EEOC’s policy that English-only policies in the workplace can violate the prohibition against 

national origin discrimination under Title VII of the Civil Rights Act of 1964. The second 

panel included: Timothy Riordan, partner in the law firm of Defrees and Fiske, who 

represented the defendant in EEOC v. Synchro-Start, a 1999 case involving an employer’s 

requirement that employees speak only English during working hours; K.C. McAlpin, 

Executive Director of ProEnglish, a national nonprofit organization working to educate the 

public about the need to protect English as the nation’s common language; Richard Kidman, 

owner of RD’s Drive-In Restaurant and defendant in a suit brought by the EEOC; and Linda 

Chavez, Chairman of the Center for Equal Opportunity and former Staff Director of the U.S. 

Commission on Civil Rights.3

 

 

2

 “Since the Ninth Circuit decided Spun Steak, five district courts have considered the issue of whether 

deference should be given to the [EEOC] Guideline. Two of them deferred to the Guideline. Three did not.” 

The two cases deferring to the guidelines were EEOC v. Synchro-Start Prods., Inc., 29 F.Supp.2d 911 (N.D. Ill. 

1999) and EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas 2000). The three cases 

declining to defer to the guidelines were Cosme v. Salvation Army, 284F.Supp.2d 299 (D. Mass. 2003); Kania v. 

Archdiocese of Phila., 14 F.Supp.2d 730 (E.D. Pa. 1998); and Long v. First Union Corp., 894 F.Supp. 933 (E.D. 

Va. 1995). See Equal Employment Opportunity Commission v. Beauty Enterprises, 2005 WL 2764822 *5 

(D.Conn. 2005).

3

 Kerry O’Brien, Senior Manager for the Legal Program of CASA de Maryland and Laura Brown, attorney, 

D.C. Employment Justice Center, were originally scheduled to participate as panelists. The former informed 

Commission staff the night before the briefing that she would not attend; the latter did so the morning of the 

briefing. However, both offered written statements which have been included in this report. The Commission 

had previously also invited speakers from the following organizations: the Mexican American Legal Defense 
Executive Summary 3

 

Based on the testimony provided by panelists and their discussion with Commissioners, the 

Commission adopted findings and recommendations on various courts’ acceptance or 

rejection of the EEOC guidelines, the potential reasons, both good and bad, behind employer 

English Only policies, and actions the EEOC and Congress might take to clarify and improve 

the state of the law as applied to English Only policies under Title VII. 

Fund; the Asian American Legal Defense and Education Fund; the League of United Latin American Citizens; 

the Lawyers Committee for Civil Rights under Law; National Council of La Raza; the ACLU Immigrants 

Rights Project; and the Institute of Politics at Harvard University’s John F. Kennedy School of Government. 

These organizations declined to attend the meeting. 
4 Findings and Recommendations 

Findings and Recommendations 

FINDINGS 

1. Title VII prohibits employers from discriminating against employees on the basis of 

national origin (as well as race, color, religion and sex). At the same time, however, it is clear 

that in passing Title VII, Congress did not intend to disturb the right of employers to control 

workplace practices except insofar as their activities constituted discrimination based on race, 

color, religion, sex or national origin. As Representative William M. McCulloch et al. put it: 

“[M]anagement prerogatives, and union freedoms are to be left undisturbed to the greatest 

extent possible. Internal affairs of employers and labor organizations must not be interfered 

with except to the limited extent that correction is required in discrimination practices.” 

Statement of William M. McCulloch, et al., H.R.Rep. No. 914, 88 Cong., 2d Sess (1964), 

reprinted in 1964 U.S.C.C.A.N. 2355, 2516 (quoted in Garcia v. Spun Steak, 998 F.2d 1480, 

1490 (9th Cir. 1993)). [Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow 

and Taylor approved; Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom 

was not present.] 

2. Although Congress consciously withheld the power to issue substantive regulations in 

connection with Title VII when it created the EEOC, the EEOC has for decades nevertheless 

issued “Guidelines” that effectively bind those employers that are not in a position to risk 

litigation. One of these is Section 1606.7, which governs what the EEOC refers to as "Speak 

English Only Rules." Under that section of the Guidelines, the EEOC asserts that it “will 

presume that [an English only rule that applies at all times] violates Title VII and closely 

scrutinize it.” An English only rule that applies only at certain times is permissible under 

Section 1606.7 only if it is “justified by business necessity.” [Chairman Reynolds and 

Commissioners Gaziano, Heriot, Kirsanow and Taylor approved; Commissioners Melendez 

and Yaki opposed; Vice Chair Thernstrom was not present.] 

3. Section 1606.7 does not apply to “Spanish Only,” “Japanese Only” or other exclusive 

language rules. [Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow and 

Taylor approved; Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom was 

not present.] 

4. Several courts have explicitly rejected the EEOC Guidelines on “Speak English Only 

Rules.” Garcia v. Spun Steak, 998 F.2d 1480, 1489 (9th Cir. 1993); Kania v. Archdiocese of 

Philadelphia, 14 F. Supp. 2d 730 (E.D. Pa. 1998); Long v. First Union Corp., 894 F. Supp. 

933 (E.D. Va. 1995). Two other courts have deferred to the EEOC in connection with 

Section 1606.7. EEOC v. Synchro-Start Products, Inc. 29 F. Supp. 2d 911 (N.D. Ill. 1999); 

EEOC v. Premier Operator Services, 113 F. Supp. 2d 1066 (N.D. Tex. 2000). [Chairman 

Reynolds and Commissioners Gaziano, Heriot, Kirsanow and Taylor approved; 

Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom was not present.] 
English Only Policies in the Workplace 5

5. There are many good reasons for an employer to adopt an “English only” in the workplace 

policy. Among those good reasons are the need for safety, the need to supervise employees 

effectively and generally insure that they are following employer policies, and the need to 

provide customers and other employees with a friendly and courteous atmosphere in which 

they need not worry about the possibility that they are being spoken of in a discourteous 

manner. While most employers may have no need for such a policy, a significant number do. 

Section 1606.7 operates to chill employers who have good reasons for adopting “English 

only” rules in the workplace. [Commissioners Gaziano, Heriot, Kirsanow and Taylor 

approved; Chairman Reynolds approved part of the finding but opposed the second half of 

the second sentence; Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom 

was not present.] 

6. On the other hand, those employers who wish to adopt 'English-only' rules just for the 

purpose of harassing, embarrassing, or excluding employees or applicants for employment on 

account of their national origin are relatively few. Withdrawing section 1606.7 and instead 

advising employers and employees that 'English-only' policies are prohibited only when the 

employer adopted the policy for the purpose of harassing, embarrassing or excluding 

employees or applicants for employment on account of their national origin would improve 

the guidelines and make them more consistent with the intent of Congress. [Chairman 

Reynolds and Commissioners Gaziano, Heriot, and Taylor approved; Commissioner 

Kirsanow abstained; Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom 

was not present.*]

RECOMMENDATIONS 

1. The EEOC should withdraw section 1606.7. Instead, employers and employees should be 

informed that 'English-only' policies are prohibited only when it can be shown by a 

preponderance of evidence that the policy was adopted for the purpose of harassing, 

embarrassing, or excluding employees or applicants for employment on account of their 

national origin. [Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow and 

Taylor approved; Commissioners Melendez and Yaki opposed; Vice Chair Thernstrom was 

not present.*] 

2. Congress should amend Title VII to clarify the meaning of discrimination on the basis of 

national origin. At minimum, that clarification should make it clear that an “English-only” 

policy is prohibited only when it can be shown by a preponderance of the evidence that the 

policy was adopted for the purpose of harassing, embarrassing or excluding employees or 

applicants for employment on account of their national origin. [Chairman Reynolds and 

Commissioners Gaziano, Heriot, Kirsanow and Taylor approved; Commissioners Melendez 

and Yaki opposed; Vice Chair Thernstrom was not present.*]

*The vote count reflects the 11/19/2010 vote, at which each finding and recommendation 

was substantively discussed. At the 12/3/2010 vote, language was removed from both 

recommendations and substitute language was added to Finding 6 and to Recommendations. 
6 Findings and Recommendations 

At this vote, Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow, and Taylor 

approved; Vice Chair Thernstrom and Commissioner Melendez abstained; Commissioner 

Yaki opposed.
English Only Policies in the Workplace 7

Summary of Proceedings 

Panel 1 

Reed Russell, Legal Counsel, Equal Employment Opportunity 

Commission 

Mr. Russell said the EEOC’s position is that English-only policies in the workplace can 

violate the prohibition against national origin discrimination under Title VII of the Civil 

Rights Act of 1964.4

 He stated that such policies may result in discipline, discomfort, and 

termination for workers whose primary language is not English and may act as a bar to 

employment.5 

He stated that Title VII, in addition to prohibiting overt discrimination, also prohibits 

“practices that are fair in form, but discriminatory in operation.”6 He stated that, if a 

challenged practice “has been shown to cause a disparate impact on the basis of national 

origin, or other protected status, the practice is unlawful, unless the employer can 

demonstrate that the practice is job-related to the position in question, and consistent with 

business necessity.”7

 He then noted that the “EEOC takes the position that an English-only 

policy is job-related and consistent with business necessity if it is needed for the safe or 

efficient operation of the employer’s business.”8

 Examples of business necessity include 

effective job performance, work-related communications with customers or other employees, 

cooperative work assignments, supervision, and safety.9 

Mr. Russell said that English-only policies not be adopted merely because of customer or coworker preference or as a broad mechanism to address isolated workplace misconduct and 

harassment. At the same time, he noted that the EEOC manual indicates that some courts 

have concluded that widespread misconduct may justify an English-only policy.10 

 

4

 Reed Russell, Testimony before the U.S. Commission on Civil Rights, briefing, 624 Ninth Street, NW, Room 

540, Washington, D.C., Dec. 12, 2008, transcript, pp. 16-17; 42 U.S.C. § 2000e (2000). Mr. Russell served as 

Legal Counsel of the EEOC from November 2007 through January 2009. 

5

 Briefing Transcript, p. 18. 

6

 Briefing Transcript, p. 19. 

7

 Briefing Transcript, pp. 19-20. 

8

 Briefing Transcript, p. 20. 

9

 Briefing Transcript, pp. 20-21. 

10 Briefing Transcript, pp. 22-23. 
8 Summary

Mr. Russell also noted the importance of providing adequate notice to employees when 

employers adopt English-only policies.11 He indicated that, when employers fail to provide 

such notice, the EEOC “consider[s] such circumstances as evidence of national origin 

discrimination.” 

Mr. Russell said that the EEOC does not seek to force employers to create or promote 

bilingual workplaces, but rather to prevent arbitrary and discriminatory policies against 

employees.12 

He stated that “EEOC’s concern is to prevent employers from imposing speak English only 

rules as arbitrary and oppressive terms and conditions of employment on people from nonEnglish speaking backgrounds in order to deprive them of an equal employment opportunity 

for jobs they are otherwise fully qualified to perform.” 

He characterized challenges to English-only policies as rare, stating that they constitute 

merely two-tenths of 1 percent of EEOC charges (complaints by aggrieved workers filed 

with the EEOC), amounting to about 180 charges filed per year on average. From those 

charges, he stated that the EEOC files only two to three lawsuits each year. He pointed out 

that disparate impact allegations, which are the most frequent types of claims, do not result in 

employer liability for compensatory or punitive damages.13 Further, he maintained that the 

business necessity exception effectively balances the interests of employers and employees.14

Panel 2 

Timothy J. Riordan, Partner, Defrees & Fiske 

As counsel for Synchro-Start Products, Inc. in a case initiated by the EEOC,15 Mr. Riordan 

discussed his frustration with the EEOC’s persistence in pursuing a case where the initial 

employee plaintiff lost interest, the English-only policy was rescinded, and there was no 

evidence of discriminatory intent.16 

According to Mr. Riordan, Synchro-Start initiated an English-only policy on the factory floor 

as a response to complaints that employees were harassing and insulting others in their native 

language, as well as to ensure safety on the production line. An employee then filed a claim 

with the EEOC, who determined after an investigation that the policy discriminated against 

the employees. After good-faith negotiations between the two parties, the complaining 

employee stated he had no personal interest in the suit other than to bring the matter to the 

 

11 Briefing Transcript, pp. 23-24. 

12 Briefing Transcript, p. 24. 

13 Briefing Transcript, p. 25. 

14 Briefing Transcript, p. 26. 

15 Equal Employment Opportunity Commission v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911 (N.D. Ill. 

1999). 

16 Briefing Transcript, pp. 36-37. 
English Only Policies in the Workplace 9

EEOC’s attention. The following year, Synchro-Start rescinded their policy, but refused to 

sign a consent decree as it contained an additional requirement of a $50,000 payment to the 

complaining employee. The EEOC responded to this refusal by filing suit, and Synchro-Start 

responded with a motion to dismiss the lawsuit. The District Court denied the motion to 

dismiss and the parties entered into the discovery process. It was found that all employees 

were capable of speaking English, and no employee was ever disciplined for violating the 

policy. Mr. Riordan quoted the EEOC’s compliance manual to highlight the legitimacy of the 

policy in the face of inter-personal conflicts and intentional usage of other languages to 

isolate and intimidate others. Mr. Riordan noted that the EEOC was unable to factually or 

legally support its claim, but his client had no choice but to settle in order to avoid future 

costs.17 

Following his discussion of the case, Mr. Riordan said that the EEOC’s resources would be 

better spent addressing other remedial and educational activities, rather than punitive 

remedies against businesses with no intent to discriminate.18

K.C. McAlpin, Executive Director, ProEnglish 

Mr. McAlpin argued that the EEOC was acting illegally by bringing actions against 

employers maintaining English-only policies,19 stating that the EEOC is abusing its statutory 

authority by mischaracterizing the definition of “national origin” as established by court 

decisions.20 He challenged the EEOC’s contention that English-only policies may violate 

Title VII on this basis,21 stating that the EEOC’s definition that included such words as 

“culture” and “linguistic characteristics” was meaningless, vague and entirely subjective. He 

urged acceptance of his view that the EEOC has no basis to assert a Title VII violation based 

on language or presume English-only policies are illegal.22

Mr. McAlpin said that unlawfully placing this burden on the employer gives the EEOC the 

unfettered discretion to challenge any English-only policy. Citing Garcia v. Spun Steak 

Company,

23 he argued that the EEOC is acting outside of its statutory authority, and noted 

that no controlling case supports the EEOC’s definition of national origin.24 He contended 

that in 35 years of cases, no court had ever adopted the EEOC’s interpretation, while in over 

20 cases courts had specifically rejected the EEOC’s position.25 

 

17 Briefing Transcript, pp. 29-36. 

18 Briefing Transcript, p. 37. 

19 Briefing Transcript, p. 37. 

20 See Garcia v. Gloor, 625 F.2d 1016 (5th Cir. 1980); Vasquez v. McAllen, 660 F.2d 686 (5th Cir. 1981). 21 Briefing Transcript, pp. 38-39. 

22 Briefing Transcript, pp. 39-40. 

23 998 F.2d 1480 (9th Cir. 1993). 24 Briefing Transcript, pp. 38-39. 

25 Briefing Transcript, p. 41. 
10 Summary

Mr. McAlpin related the case of a fellow panelist, Mr. Kidman, which involved an Englishonly policy to stop sexual and verbal harassment at RD’s Drive-In. He characterized the 

EEOC as persecuting the Kidmans and waging a media campaign against them, using its 

superior resources to intimidate them and force a settlement. He condemned the EEOC’s 

tactics as unlawful, defiant of the courts, and in violation of employers’ and employees’ 

rights.26 He contended that “only lawyers blinded by ideology, or obsessed with an agenda 

could have looked at the facts and concluded that the Kidmans were discriminating against 

their Navajo employees.”27

He said that the EEOC is aware that, however unfounded its legal case against a defendant, 

its vastly superior funding will cause most small business defendants to settle rather than 

fight the allegations in a protracted legal proceeding. He argued that employers are caught in 

a “Catch 22” situation—if they fail to address racial and sexual harassment that takes place in 

languages other than English, they can be sued under Title VII for maintaining a hostile work 

environment; if they create an English-on-the-job policy, they risk public attack and 

prosecution by the EEOC.28 In conclusion, Mr. McAlpin urged the commissioners to 

condemn what he termed “the EEOC’s allegedly unlawful conduct.”29

Richard Kidman, Owner, RD’s Drive-In Restaurant, Page, Arizona 

Mr. Kidman, co-owner of RD’s Drive-In, described the need for his restaurant’s English-only 

policy, which was the subject of an EEOC investigation as discussed above.30 He stated that, 

before he created the English-only policy, some of his employees harassed others using a 

language other than English, knowing they would not be caught. It became difficult to recruit 

and keep good employees. He said that his English-only policy was in line with the EEOC’s 

guidelines, and that work environment and morale improved immediately upon its 

enforcement. Mr. Kidman stated that the EEOC became involved when four bilingual 

employees quit, claiming they were terminated because they could not speak English. They 

were denied unemployment benefits because they were deemed able to speak English, and 

subsequently filed a complaint with the EEOC.31 

Mr. Kidman stated that the EEOC launched what he considered “a phony investigation” and 

reprehensibly engaged in unethical behavior, which included intimidating employees into 

joining the complaint, accusing him and his wife of being racist, and filing suit without 

responding to requests to help refashion a policy that would suit the EEOC.32 Moreover, he 

 

26 Briefing Transcript, pp. 42-43. 

27 Briefing Transcript, p. 42. 

28 Briefing Transcript, p. 43. 

29 Briefing Transcript, p. 44. 

30 Briefing Transcript, pp. 45-46. 

31 Briefing Transcript, p. 47. 

32 Briefing Transcript, p. 47. 
English Only Policies in the Workplace 11

averred that the EEOC lost recorded interviews, negotiated in bad faith, and attacked him and 

his wife in the press, attempting to bankrupt them.33 

A judge agreed with the Kidmans’ imposition of the English-only policy, ruling that the 

policy was essential to protecting employees and running the business, and advised Mr. 

Kidman to reissue a policy subject to EEOC review.34 However, Mr. Kidman asserted that 

the EEOC did not and still has not responded.35

Linda Chavez, Chairman, Center for Equal Opportunity 

Ms. Chavez stated that she and her organization do not take a position on English in the 

workplace rules. Rather, she stated that there should be a strong presumption in favor of 

allowing employers to make their own decisions about how best to run their businesses, as 

long as the decisions are consistent with civil rights laws. Ms. Chavez asserted that there are 

limited exceptions to an employer’s right to determine what is best for their business, citing 

discrimination on the basis of race or ethnicity as an example.36

Though she gave an example of a situation to illustrate how language restrictions may be 

used by employers as a pretext for discrimination on the basis of ethnicity, she believes that 

the vast majority of employers have legitimate and business-related reasons for English-only 

policies.37 She noted that courts are split in their responses to claims of discrimination, with 

some upholding the policies while others forced employers to hire bilingual supervisors.38

Instead of bringing forth disparate impact cases, Ms. Chavez suggested that the EEOC should 

only bring forth disparate treatment cases.39 

Differentiating language from race, gender, and national origin, Ms. Chavez stated that 

language is not an immutable characteristic. She supports legislation barring the EEOC from 

bringing language-based lawsuits under Title VII, especially in disparate impact suits.40

Ms. Chavez also stressed that the federal government should not discourage employers from 

teaching their employees English, and that the workplace is an important part of the 

assimilation process for immigrants.41 Further, she urged Congress to provide tax credits and 

incentives for employers to teach English, since the majority of immigrants expect that they 

must learn English, and are eager to do so.42

 

33 Briefing Transcript, pp. 47-51.

34 Briefing Transcript, p. 52. 

35 Briefing Transcript, p. 52. 

36 Briefing Transcript, p. 54. 

37 Briefing Transcript, pp. 55-56. 

38 Briefing Transcript, p. 56. 

39 Briefing Transcript, p. 57. 

40 Briefing Transcript, pp. 57-58. 

41 Briefing Transcript, pp. 58-59. 

42 Briefing Transcript, p. 59. 
12 Summary

Discussion 

In response to a question from Commissioner Kirsanow, Mr. Russell stated that in each year 

over the last ten years, on average, 180 charges alleging discrimination based on an 

employer’s English-only policy have been filed with the EEOC, but the EEOC only chooses 

to litigate two or three of these cases per year. He could not remember a case in recent 

history that went all the way to judgment, but stated that a number of charges are resolved 

during the administrative process when they may be closed or issued a no-cause finding.43 If 

the EEOC does, however, find cause to believe discrimination occurred, Mr. Russell 

explained that the Commission then attempts to conciliate those claims, which are anywhere 

from 30-100 per year. The conciliation process either results in settlement or no conciliation, 

and the latter may result in litigation if the EEOC’s General Counsel decides that litigating 

the case is worth their time and resources.44

Commissioner Kirsanow then asked if there were any cases where a court found that an 

employer’s English-only rule was promulgated with intent to discriminate.45 Mr. Russell 

referred back to the Tenth Circuit case Maldonado v. City of Altus46 in which the EEOC filed 

an amicus brief, noting that there was at least evidence of discriminatory intent.47

Commissioner Kirsanow asked Mr. Russell if the EEOC’s guidelines clause, “cultural or 

linguistic characteristic common to a specific ethnic group,” had ever been the subject of 

litigation in any of the English-only cases.48 Commissioner Kirsanow noted that under the 

Chevron decision,49 agencies may interpret what their authorizing statute means, but cannot 

amend or graft on to the statute a meaning different from that legislated by Congress.50 Mr. 

Russell stated that his version of the clause stated “culture or linguistic characteristics of a 

national origin group,” which ties into a protected category under Title VII. He then cited 

cases such as Guiterrez51 and Spun Steak52, asserting they assumed or found that primary 

language is tied to national origin.53 He cited Spun Steak for the proposition that an Englishonly policy would have a disparate impact on individuals who did not speak English.54 

Commissioner Kirsanow set out the difference between an immutable characteristic like race, 

and one which could vanish over time like language. He observed that it is easier to ascribe a 

disparate impact to immutable characteristics. By way of example, he pointed out that the 

 

43 Briefing Transcript, p. 61. 

44 Briefing Transcript, p. 62. 

45 Briefing Transcript, p. 62. 

46 433 F.3d 1294 (10th Cir. 2006). 

47 Briefing Transcript, p. 62. 

48 Briefing Transcript, p. 63. 

49 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron, the 

court defers to an agency’s reasonable interpretation of a statute when the statute is ambiguous or Congress 

intentionally left a gap for the agency to fill. 

50 Briefing Transcript, p. 63. 

51 Gutierrez v. Municipal Court of the Southeast Judicial District, County of Los Angeles, 838 F.2d. 1031 (9th 

Cir. 1988). 

52 998 F.2d 1480 (5th Cir. 1980). 

53 Briefing Transcript, pp. 63-64. 

54 Briefing Transcript. pp. 63-64. 
English Only Policies in the Workplace 13

national origin of Portuguese speakers could be either Brazil or Portugal, that Russian 

speakers could hail from a number of former Soviet Republics, and that Spanish speakers 

could be from scores of different countries.55 He asked Mr. Russell if there was any litigation 

showing a correspondence between language and national origin which could be legitimately 

tied to a disparate impact theory.56 Mr. Russell responded that cases such as Spun Steak and 

Gutierrez effectively accepted this theory since they took the position that an English-only 

policy had a disparate impact on Spanish-speaking employees.57 

Finally, Commissioner Kirsanow asked Mr. Russell if he was aware of any litigated cases in 

which the EEOC brought a lawsuit or complaint against an employer who maintained an 

other-than-English workplace policy.58 While Mr. Russell indicated that he was not aware of 

any such case, he stated that as long as there was a disparate impact on a group of a particular 

national origin, the same analysis applies to both English and other-than-English polices.59 

Alternatively, Mr. McAlpin stated that the EEOC only considers English-only policies 

discrimination. In his view, Spun Steak found English-only policies to be a violation, but not 

the fact that Spanish was essentially the official language for the night shift.60 He also noted 

that the EEOC was citing the minority opinion from Spun Steak finding a correlation between 

national origin and language but not the majority, which held that the EEOC was acting 

outside of its statutory authority. He directed Commissioners to his written testimony, which 

includes a list of 21 cases adjudicated at the federal, state, and Circuit Court levels that have 

all gone against the EEOC on this position.61 Mr. McAlpin pointed out that only two cases to 

his knowledge initially ruled in favor of the EEOC’s position, and neither are controlling. As 

a result, he considered the EEOC’s legal basis to be very thin.62 

Ms. Chavez furthered Mr. McAlpin’s point by referring to a case which she found to be in 

favor of a language other than English. In that case, Ms. Chavez observed a disparate impact 

on the existing African American supervisors who were fired as a result of a ruling requiring 

bilingual supervisors.63 

To clarify the EEOC’s position on Spun Steak, Mr. Russell stated that the case only ruled 

against the EEOC on the narrow ground that there was no adverse impact on truly bilingual 

employees. Conceding that the EEOC’s position on bilingual employees is controversial, he 

nevertheless found that Spun Steak assumed that primary language is linked to national 

origin, and there would still be an adverse impact on those employees who spoke little to no 

English. Mr. Russell then clarified that the EEOC’s regulation states that language is often, 

 

55 Briefing Transcript, p. 65. 

56 Briefing Transcript, pp. 64-65. 

57 Briefing Transcript, p. 65. 

58 Briefing Transcript, p. 66. 

59 Briefing Transcript, pp. 66-67. 

60 Briefing Transcript, p. 67. 

61 Briefing Transcript, p. 68. 

62 Briefing Transcript, pp. 67-68. 

63 Briefing Transcript, p. 69. 
14 Summary

not always, a component of national origin, and that the agency would revise its position if 

the Supreme Court ruled that language is not tied to national origin.64

Commissioner Gaziano inquired about the EEOC’s regulation65 and the presumption 

involved when conducting an investigation of an employer who promulgates an English-only 

policy. Commissioner Gaziano expressed skepticism that the presumption is applied 

differently in the subparts (subsection A applies to English-only policies that apply at all 

times in the workplace whereas subsection B applies to English-only policies that are more 

limited, such as those that apply while employees are performing official duties but not while 

employees are at lunch or on break)66 Mr. Russell responded that there is a meaningful 

distinction between the two subparts: in subsection A, the EEOC presumes that there will be 

a disparate impact since primary language is linked to national origin and that there is no 

business justification because the rule is so broad. Mr. Russell also stated that under either 

subsection A or B, an investigation would occur, but it is easier for an employer to prove the 

necessity of an English workplace policy under B than A.67

Continuing their discussion about the EEOC guidelines, Commissioner Gaziano posited a 

hypothetical based on a Fifth Circuit case about sexual harassment in a break room. In his 

hypothetical, sexual harassment was taking place in a language that the supervisors did not 

understand, and he asked Mr. Russell if the supervisors could adopt an English workplace 

policy in order to avoid liability.68 Ms. Chavez commented that she found such a policy 

reasonable.69 Mr. Russell responded that such a policy would be too broad, since the 

harassment was only occurring in the break room. Mr. Russell cautioned that a policy should 

only be used where there is a pervasive, overwhelming problem, and not everywhere in the 

workplace.70 When Commissioner Gaziano slightly modified the hypothetical to include 

harassment in multiple areas in the workplace,71 Mr. Russell stated that an English-only 

policy may be appropriate if it were the only way to stop the conduct. Nevertheless, he added 

that, under Title VII, even if an employer presents such a business-necessity justification, a 

plaintiff-employee may show that the employer refused to adopt equally effective 

alternatives for dealing with the harassment72 Commissioner Yaki echoed this view, stating 

that there are a number of steps that could and should be taken before adopting an Englishonly rule to address harassment.73 

 

64 Briefing Transcript, pp. 69-70. 

65 29 C.F.R. § 1606.7 (2008). The EEOC guideline on speak-English-only rules distinguishes between two types 

of rules: Subsection (a) applies to English-only rules applied at all times; subsection (b) applies to English-only 

rules applied only at certain times. Subsection (a) establishes that these types of rules are a burdensome term 

and condition of employment, and that the primary language of an individual is often an essential national 

origin characteristic. The EEOC presumes these rules violate Title VII. Employers applying rules under 

subsection (b) must justify them by business necessity. 

66 Briefing Transcript, pp. 71-72. 

67 Briefing Transcript, pp. 73-76. 

68 Briefing Transcript, pp. 76-79. 

69 Briefing Transcript, p. 79. 

70 Briefing Transcript, pp. 79-80. 

71 Briefing Transcript, pp. 80-82. 

72 Briefing Transcript, pp. 82-83. 

73 Briefing Transcript, pp. 83-84. 
English Only Policies in the Workplace 15

Mr. Russell mentioned generally that there exists an ample body of case law on employers’ 

obligations and liability for sexual harassment. Specifically, according to Mr. Russell, this 

body of law holds that an employer may be liable for co-worker to co-worker harassment 

when it knows or should have known about the harassment. It can also be liable for a 

supervisor’s sexual harassment if it did not have an effective policy of dealing with it or did 

not investigate. He speculated that a Title VII analysis would take into account how much a 

language difference may mitigate these findings.74 Responding to Commissioner Gaziano’s 

disagreement with the EEOC’s presumption of disparate impact,75 Mr. Russell cited Griggs 

v. Duke Power as the authority for the EEOC’s disparate impact analysis.76 He explained that 

the EEOC is simply upholding this decision, which held that policies which are fair in form, 

but discriminatory in operation, must be justified because of job relatedness and consistency 

with business necessity.77

Commissioner Melendez expressed regret that there was only one panelist representing the 

EEOC, and wished there was testimony from those whom the EEOC is representing in 

litigation.78 Using the example of Navajo Native Americans, he focused on the sensitivity 

involved in implementing English workplace policies.79 Mr. Kidman responded to this issue 

using his personal experience with Navajo employees. He related an incident of two Navajo 

employees waiting on a non-Navajo customer in which they would speak Navajo to each 

other, look at the customer, and laugh. He alleged that this customer left and never came 

back. He also related an incident of a Navajo customer overhearing a Navajo cook cursing 

and swearing while cooking his food. In Navajo culture, according to Mr. Kidman, if a 

person preparing food has a bad attitude or speaks badly, that is passed through the food to 

the person eating it. As a result, Mr. Kidman believed he lost more customers. Furthermore, 

he did not know about these problems because of a taboo in Navajo culture for a Navajo to 

speak ill of a fellow Navajo to a white man. He also attributed 50 percent employee turnover 

to this problem.80 Since implementing an English workplace policy, he states that his 

employee turnover was zero percent in 2008 and business has improved.81 

Continuing the discussion on personnel issues, Commissioner Melendez commented that the 

majority of these issues are brought to the attention of supervisors through second-hand 

information. In a predominantly Hispanic or Native American workplace, he believed that 

supervisors would probably be trained to pick up multiple languages and be able to know 

whether or not people are being harassed. Further, he hoped there would be bilingual 

supervisors hired.82 In response, Mr. Kidman stated that some of his employees refused to 

communicate with their coworkers in English and that when these employees quit, it became 

difficult to rehire because of the restaurant’s tarnished reputation.83

 

74 Briefing Transcript, pp. 82-83. 

75 Briefing Transcript, p. 84. 

76 401 U.S. 424 (1971). 

77 Briefing Transcript, pp. 84-85. 

78 Briefing Transcript, p. 85. 

79 Briefing Transcript, pp. 86-87. 

80 Briefing Transcript, p. 88. 

81 Briefing Transcript, pp. 87-88. 

82 Briefing Transcript, pp. 88-89. 

83 Briefing Transcript, pp. 89-90. 
16 Summary

Vice Chair Thernstrom asked Mr. Russell whether Mr. Kidman’s case was an outlier, but Mr. 

Russell responded that he was not familiar with all of the facts related to his case. He 

indicated that the EEOC only litigates a few of these types of cases out of several hundred a 

year, and therefore this is not an area where the EEOC spends a majority of its time.84

As a final comment, Commissioner Melendez again expressed concern that none of the 

Navajo plaintiffs were present at the briefing, emphasizing the importance of learning their 

perspective on why they reached out to the EEOC.85

Commissioner Taylor indicated that he “would have welcomed the involvement of the 

plaintiffs” from the cases described, but was pleased that the absent panelists from CASA de 

Maryland and the D.C. Employment Justice Center had submitted testimony for the record.86

He understood their view to be that there is a broad effort by employers to institute Englishonly policies as part of an anti-immigration policy. He asked Mr. Russell to reconcile this 

allegation with EEOC figures, and asked whether he felt this effort was widespread.87 Mr. 

Russell did not see a conflict between the two, as CASA de Maryland was referring to the 

implementation of policies, while the EEOC figures presented the number of charges filed 

with the agency.88 

In response to Commissioner Taylor’s comment concerning an anti-immigration policy, Ms. 

Chavez stated that it is inaccurate to suggest that there is a broad effort to enact English-only 

policies to drive out non-English speaking workers. She stated that on the contrary, she is in 

favor of immigration law reform, as are employers who are in desperate need of workers.89 

Mr. McAlpin contended that the recent large-scale immigration within the last forty years 

partially caused the language issue in the workplace. He stated that employers are simply 

trying to rationally respond to this in order to stay in business. He then made several 

comments about the EEOC’s guidelines and litigation process. He disagreed with the 

EEOC’s assertion that language is closely associated with national origin, citing twenty one 

attached cases which he claimed invalidate the EEOC’s view.90 

When Mr. McAlpin asked Mr. Russell why the EEOC would not consider a Spanish-only 

policy as a national origin discrimination case, Mr. Russell responded that this was not 

necessarily the case. While the EEOC’s guideline is specifically for English-only policies, 

Title VII analysis would still apply, and the employer would have to prove that there is a 

business justification for the policy.91 Mr. McAlpin challenged this, stating that the EEOC 

typically never pursues or investigates non-English-only policy claims. Mr. Russell stated 

 

84 Briefing Transcript, pp. 90-91. 

85 Briefing Transcript, p. 91. 

86 Briefing Transcript, p. 92. 

87 Briefing Transcript, pp, 92-93. 

88 Briefing Transcript, p. 94. 

89 Briefing Transcript, pp. 94-95. 

90 Briefing Transcript, pp. 95-97. 

91 Briefing Transcript, pp. 97-98. 
English Only Policies in the Workplace 17

 

that it is standard for the EEOC to issue a right to sue letter for a majority of cases, but 

assured the panel that the investigators take every charge seriously.92

Based on his experience representing a company in a lawsuit commenced by the EEOC, Mr. 

Riordan agreed with Ms. Chavez that there needs to be a high burden of proof before a 

management’s prerogatives are taken away, and that the shifted burden on the employer to 

prove a business necessity gives the EEOC too much power. He claimed that the EEOC 

issued factually incorrect press releases during his case, including one after the denial of the 

motion to dismiss in which the EEOC effectively declared a victory.93 

Commissioner Yaki commented on what he considered to be deficiencies in the briefing 

itself, since English-only claims are a very small part of the EEOC docket, and positing that 

the briefing may be missing the bigger picture. Noting that the overwhelming majority of 

cases filed deal with Spanish-speaking claimants, he mentioned that he previously asked Mr. 

Russell if there was any geographical pattern among the origination of the claims. Other data 

sought by Commissioner Yaki included evidence of employer intimidation reducing the 

number of claims brought forth, and general data about what types of claims are and are not 

coming in and why. He posited that perhaps groups such as CASA may have more 

knowledge of those who did not come forward as a result of their immigrant status. 94 Mr. 

Russell responded that the EEOC had supplied some data relevant to these requests.95

92 Briefing Transcript, pp. 98-99. 

93 Briefing Transcript, pp. 99-101. 

94 Briefing Transcript, pp. 101-104. 

95 Briefing Transcript, p. 107. 
18 Statements

Speaker Statements 

Note: Speakers’ submitted written statements are unedited by the Commission and are the 

sole work of the author. 

Reed Russell 

Statement of EEOC Legal Counsel Reed Russell on English-Only Policies to U.S. Civil 

Rights Commission December 12, 2008 

Good morning, Commissioners, thank you for this opportunity to explain the Equal 

Employment Opportunity Commission’s views on English-only policies. The EEOC has a 

longstanding position that employers’ adoption of English-only policies can implicate the 

prohibition against national origin discrimination under Title VII of the Civil Rights Act of 

1964. The EEOC’s position dates back to at least the early 1970s96 and was promulgated in 

guidelines published in the Federal Register in 1980.97 

English-only policies can arise in a wide range of workplace situations. These policies 

typically limit the circumstances under which employees can speak foreign languages in the 

workplace. For bilingual workers whose primary language is not English, English-only 

policies can limit their opportunity to speak in the language with which they are most 

comfortable and expose them to discipline for inadvertently slipping into their native 

language. For workers with limited or no English skills, English-only rules can operate as a 

bar to employment, preventing otherwise qualified workers from being hired or resulting in 

their discipline and termination. 

As with any other employment practice, an English-only policy violates Title VII if it was 

adopted for the purpose of discriminating against employees based on national origin or 

another protected category. For example, in a Tenth Circuit case, plaintiffs who worked for 

the City of Altus, Oklahoma, presented evidence that the city had adopted an English-only 

policy in order to discriminate based on national origin.98 The evidence presented by the 

plaintiffs showed that management was aware that the policy would result in the taunting of 

Hispanic city employees, that there were no substantial work-related reasons for the policy, 

and that the Mayor referred to the Spanish language as “garbage” while he was giving a news 

interview. 

In other cases, an employer will adopt an English-only policy for nondiscriminatory reasons, 

without intending to limit the employment opportunities of workers based on national origin. 

As explained by the Supreme Court, however, Title VII “proscribes not only overt 

discrimination but also practices that are fair in form, but discriminatory in operation.”99 

 

96 EEOC Dec. 71-446, ¶ 6173 (CCH) (1970); EEOC Dec. 72-0281, ¶ 6293 (CCH) (1971). 

97 29 C.F.R. § 1606.7.

98 Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006). 99 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 
English Only Policies in the Workplace 19

Because of the obviously close relationship between an individual’s national origin and 

primary language, English-only policies may result in a disparate impact on employees of 

certain national origins. For example, in a workplace where some employees are native 

English speakers and others are native Spanish speakers, Hispanic workers with limited 

English proficiency may be disproportionately excluded from certain employment 

opportunities as the result of an English-only policy. 

If an employment practice challenged under Title VII has been shown to cause a disparate 

impact on the basis of national origin or another protected status, the practice is unlawful 

unless the employer can demonstrate that the practice is job related for the position in 

question and consistent with business necessity.100 

EEOC takes the position that an English-only policy is job related and consistent with 

business necessity if it is needed for the safe or efficient operation of the employer’s 

business.101 Thus, employers with legitimate business needs for requiring English-only 

policies are free to adopt them in a variety of circumstances. Similarly, if English fluency is 

required for effective job performance, then an employer is free to reject job applicants who 

are not fluent in English, even if workers of some national origin groups are adversely 

impacted. 

English-only policies are obviously permissible for work-related communications with 

customers, coworkers, or supervisors who only speak English. Thus, a cashier in a retail store 

or a server in a restaurant could be required to speak English when serving English-speaking 

customers or when speaking with his fellow English-speaking employees about work issues 

or with his English-speaking supervisor. 

English-only policies also can be imposed for cooperative work assignments where English 

is needed to promote efficiency. Thus, for example, a taxi cab company might require 

English when communicating with the dispatcher’s office. 

English-only policies also might be required to enable a supervisor to monitor work-related 

communications between coworkers or between an employee and a customer. For example, 

at a coffee shop or restaurant an English-only policy may be needed to allow a supervisor to 

monitor the relaying of orders from the cashier to the baristas or cook. 

And as mentioned, employers may impose an English-only policy where it is needed for 

safety. In fact, one of EEOC’s own Commission decisions from the early 1980s upheld a 

policy at an oil refinery which required employees to speak only English during emergencies 

or while performing work duties in the laboratory or processing areas where there was a risk 

of fires or explosions.102 

 

100 42 U.S.C. § 2000e-2(k)(1)(A)(i). 101 Section 13: National Origin Discrimination, EEOC Compliance Manual, Volume II (BNA) (2002), 

http://eeoc.gov/policy/docs/national-origin.html#VC1. 102 EEOC Dec. 83-7, ¶ 6836 (CCH) (1983). 
20 Statements

These are only examples, however, and there will be other circumstances where English-only 

policies will be consistent with business necessity and therefore lawful under Title VII, even 

if the policies result in a disparate impact on a specific national origin group in a particular 

workplace. 

As can be seen by these examples, English-only polices should be limited in scope and apply 

only to employees when they are working in circumstances where English is actually 

necessary for the business to operate safely or efficiently. As a result, an employer that 

adopts a blanket policy that requires English at all times in the workplace, even during lunch 

and breaks and in purely personal conversations, will have more difficulty establishing 

business necessity than an employer that has adopted a narrower policy.103

English-only policies should not be imposed merely because of coworker or customer 

preference. For example, English-only policies should not be imposed merely because some 

non-Spanish-speaking employees dislike eating lunch in the same room with coworkers who 

engage in private conversations in Spanish. 

However, employers may have a duty to take appropriate corrective measures to address 

workplace misconduct that involves a foreign language, such as race- or sex-based comments 

in Spanish. Such misconduct often can be addressed under the employer’s standard 

disciplinary procedures and therefore will not justify broad English only policies. For 

example, if employees are making derogatory remarks about coworkers in Spanish, they can 

be individually disciplined, and if they are repeat offenders, can be required to speak only in 

English so that non-Spanish-speaking supervisors can monitor their behavior. 

Similarly, if there are isolated instances of employees using foreign languages to insult or 

intimidate English-speaking workers, the employer probably could adequately address the 

misconduct under an existing discipline policy. However, as pointed out in the EEOC’s 

Compliance Manual Section on National Origin Discrimination, some courts have concluded 

that if such misconduct is more widespread, then an employer is justified in adopting an 

English-only policy.104

To be effective in promoting the employer’s business needs, an English-only policy must be 

clearly communicated to affected employees. Employers are free to use any reasonable 

means of providing notice, such as a meeting, e-mail, or posting. In some cases, it may be 

necessary for an employer to provide notice in English and in the other native languages 

spoken by its workers. 

 

If an employer does not provide adequate notice of an English-only policy, it may face 

difficulty in justifying discipline taken for violations of the policy. Pursuant to EEOC’s 

English-only guidelines, the EEOC will consider the application of the policy in such 

circumstances as evidence of national origin discrimination.105 Failure to provide adequate 

 

103 29 C.F.R. § 1606.7(a). 104 Section 13: National Origin Discrimination, EEOC Compliance Manual, Volume II (BNA), Example 21 & 

n.51 (2002), http://www.eeoc.gov/policy/docs/national-origin.html#VC2. 105 29 C.F.R. § 1606.7(c). 
English Only Policies in the Workplace 21

notice also may belie an employer’s assertion that an English-only policy is necessary for 

safe or efficient business operations. Nevertheless, EEOC’s Guidelines on English-only 

policies do not require that employers create bilingual policies or operate a bilingual 

workplace, nor do they promote bilingualism in the workplace. Rather, EEOC’s “concern is 

to prevent employers from imposing speak-English-only rules, as arbitrary and oppressive 

terms and conditions of employment, on people who come from non-English-speaking 

backgrounds in order to deprive them of an equal employment opportunity for jobs they are 

otherwise fully qualified to perform.”106 

The EEOC enforces Title VII’s limits on English-only policies primarily through the 

administrative processing of charges. During the past 10 years, the EEOC received an 

average of about 180 charges per year challenging English-only policies. This constitutes 

only about two-tenths of one percent of the total charges filed with the EEOC during the 

same time period. The EEOC also filed about two to three lawsuits per year challenging 

English-only policies. 

As with other employment practices, the EEOC takes proactive measures to educate 

employers about their obligations and employees about their rights. The EEOC has applied 

the same legal analysis to English-only policies for nearly four decades, and I think it is fair 

to presume that most larger employers are aware of their legal obligations under Title VII. 

Nonetheless, the issue arises relatively infrequently, and some smaller employers may still be 

unaware of their potential liability in adopting English-only policies. Under Title VII, 

however, employers cannot be liable for compensatory or punitive damages for disparate 

impact violations.107

In summary, the EEOC’s position on English-only policies reasonably balances the interests 

of employers and employees by permitting those policies that are consistent with business 

necessity while preserving Title VII’s mandate of ensuring equal opportunities for non-native 

English-speaking individuals who are able to effectively perform their job functions. 

*** 

Timothy J. Riordan 

December 10, 2008 

I was the attorney primarily responsible for counseling and defending Synchro-Start 

Products, Inc. in litigation initiated by the Equal Employment Opportunity Commission 

(“EEOC”), a case cited in the current version of the EEOC’S Compliance Manual at §13(v)I, 

EEOC v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911 (N.D. Ill. 1999). In that case, the 

EEOC filed suit on behalf of a number of Synchro-Start employees whose primary language 

was not English, alleging that Synchro-Start intentionally violated Tile VII by requiring the 

employees to speak only English during working hours. 

 

106 Preamble to Final Guidelines on Discrimination Because of National Origin, 45 Fed. Reg. 85,362, 85,634 

(1980). 

107 42 U.S.C. § 1981a(a). 
22 Statements

On September 15, 1997, Synchro-Start promulgated a policy to its employees to speak only 

English while working on the factory floor. The policy was a result of complaints from a 

number of employees that other employees were perceived to be harassing and insulting 

them while speaking in their native language, which could not be understood by the 

complaining employees. The policy had been implemented to diffuse what was developing 

into a serious morale problem and to avoid potential claims of harassment or discrimination. 

The Company was also concerned that safety on the production line could be compromised if 

employees were not all speaking a common language. 

Shortly thereafter, an employee filed a complaint with the Equal Employment Opportunity 

Commission (“EEOC”) and after an investigation the EEOC made a determination that there 

was reasonable cause to believe that the “English Only” policy discriminated against the 

complaining employee and other employees whose native language was not English. 

Thereafter, in response to the EEOC’s invitation, the Company engaged in good faith 

negotiations for conciliation and as of April 29, 1998, the Company and the EEOC had 

basically agreed upon the terms of a settlement, including the posting of a notice to all 

employees advising of the rescission of the “English Only” policy and execution of a 

conciliation agreement by the Company, the EEOC and the complaining employee. 

However, after the forms had been negotiated, the complaining employee refused to sign the 

documents. The EEOC investigator indicated that the employee had stated that he had no 

personal interest in the matter, that he had not been damaged in any way, that he simply 

wanted to bring the matter to the EEOC’s attention for investigation and, therefore, he 

refused to participate in the settlement of the case by way of executing any documents. 

Although frustrated by the employees’ refusal to participate in the settlement, the Company 

did offer to enter into the settlement as negotiated and, in fact, the Company voluntarily 

rescinded the policy on July 1, 1998. The EEOC then refused to enter into an agreement 

based on the prior discussions. 

On October 7, 1998, the EEOC contacted the Company’s attorneys advising that the EEOC 

would file a suit on behalf of the employees if the matter was not settled pursuant to an 

enclosed consent decree. The consent decree was generally consistent with the settlement 

which had been negotiated earlier; however, it contained an additional requirement for 

payment of $50,000 to the complaining employee. The Company responded by indicating a 

willingness to enter into the settlement agreement, with minor modifications, but refused to 

make any monetary payment for fear of setting a precedent which would require payment to 

other employees who had not as yet made a complaint. 

The EEOC responded by filing suit notwithstanding that the policy had been rescinded and 

that the employee who first complained had no interest in pursuing the matter. 

Synchro-Start filed a Motion to Dismiss contending that its policy which simply required 

employees who are bilingual to speak English while working did not constitute an unlawful 

employment practice and that the EEOC Discrimination Guidelines, 29 C.F.R. §1606.7(a) 

and (b) shifting the burden to the employer to provide a business justification for an English 

only policy was invalid as beyond the scope of the agency’s authority to interpret Title VII. 

The District court upheld the validity of the challenged EEOC discrimination guidelines and 
English Only Policies in the Workplace 23

denied Synchro-Start’s Motion to Dismiss based on a finding that the EEOC’S complaint . . . 

comported with the requirement for a viable Title VII claim.” 

The parties engaged in discovery which confirmed the following facts. 

Synchro-Start was a manufacture of electronic products with approximately 200 employees. 

Substantially all of the Company’s production personnel were first generation immigrants, of 

Polish, Hispanic and Asian descent. Although, in most instances, their native language was 

their primary language, all employees spoke English well enough to understand and follow 

directions and instructions and to perform their job requirements safely and productively. 

Some of the production supervisors, however, spoke only English and were not able to speak 

in the other languages. 

On numerous occasions, individual employees complained that other employees were 

speaking in their native foreign languages and using their bilingual capabilities to harass and 

insult other workers in a language they could not understand. For example, one employee 

stated that Hispanic employees had spoken in their native language which she could not 

understand, then they looked at her, laughed and rolled their eyes, making her feel very 

uncomfortable and intimidated. On each occasion that such complaints were made, the plant 

manager talked to the supervisors to determine the validity of the complaint and the 

appropriate response. The supervisors then attempted to deal with the issue by discussing the 

matter with the group leaders and the effected employees, suggesting that the employees 

speak English while in the presence of other employees who did not speak the same 

language, so that feelings would not be hurt and to improve morale and communications. 

The plant manager was also contacted by a representative of a temporary employment 

agency which provided Synchro-Start with employees who advised that two of the temporary 

employees refused to be sent back to Synchro-Start because the Synchro-Start employees 

intimidated them and made them uncomfortable by speaking in their own language which the 

temporary employees could not understand. 

In response to the continuing complaints, in September of 1997, the Company instituted a 

policy that employees should speak only English while working. The policy did not apply 

while employees were on their own time, such as breaks and lunch. The Company believed 

that it had no alternative but to initiate this limited policy to avoid conflict, at least while the 

employees were on the production line. The Company was concerned that safety on the 

production line could be compromised and that it might otherwise be exposed to claims by 

the complaining employees that it had failed to protect their rights. It is important to also note 

that no employee was disciplined for violating the policy. 

Synchro-Start’s claim that it had a business necessity for adopting the policy was not only 

factually supported, but consistent with the EEOC’s own Compliance Manual, wherein 

footnote 48 in its section relating to English Only Rules, the EEOC cites Roman v. Cornell 

University, 53 F. Supp. 2d 223. 237 (N.D.N.Y.1999) and Long v. First Union Corp., 894 F. 

Supp. 933, 941(E.D.Va.1995) respectively, for the propositions that “business reasons for an 

English-only rule may include ‘avoiding or lessening interpersonal conflicts, preventing nonforeign language speaking individuals from feeling that they are being talked about in a 
24 Statements

language they do not understand,” and “English-only policy may be legitimate and necessary 

for business where adopted to “prevent employees from intentionally using their fluency in 

Spanish to isolate and to intimidate members of other ethnic groups. 

The EEOC also failed to produce any evidence to support its allegations that Synchro-Start 

had intentionally engaged in discriminatory practices or that some Synchro-Start employees 

were unable to comply with the policy because they were unable to speak any English. 

Notwithstanding the EEOC’s inability to factually and legally support its claim of 

discrimination, when offered the opportunity to settle the case for an amount less than the 

expected future costs of defense, the Company had no practical alternative but to settle, 

which it did after almost two years of litigation. 

It should be clear from the above, that my client and I were frustrated with the EEOC’s 

continued pursuit of this case after the original complaining employee lost interest, the policy 

was rescinded and facts became clear that there was no discriminatory intent on the part of 

the company on promulgating the rule. 

It is my belief that all interests would have been better served if the EEOC had devoted its 

resources to remedial and educational activities, rather than the pursuit of punitive remedies 

against Synchro-Start which had acted in good faith with no intention to discriminate. 
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Richard Kidman 

My name is Richard Kidman. Since 1977, my wife and I have owned and managed a small 

independent fast food restaurant called RD’s Drive-In located in Page, Arizona. 

For thirty-one years, we struggled to maintain employee morale at our restaurant by 

requesting that employees be courteous to one another. One issue that kept causing problems 

was the use of a second language that was understood only by some of the employees. Some 

of our employees were bilingual but many, including my wife and myself, speak only 

English. All our employees however, speak and understand English. 

Approximately ten years ago, we began having a very difficult time recruiting new 

employees and holding on to those we already had. In May 2000, one of our reliable 

employees gave me an emotional verbal notice that she would no longer be working for me. 

She explained that some workers were saying terrible things to her on the job. We discovered 

that some employees were being subjected to verbal and sexual harassment even in our 

presence because we could not understand the language. Some of our bilingual workers were 

using their ability to speak a second language as a weapon. 

We understood that our business was at risk of being sued if we allowed this hostile 

environment to continue. We knew we had to act. I asked the employee who gave her notice 

to please stay and give us a chance to fix the problem and she agreed. 

In order to stay in business we had to create a workplace policy that would stop the 

harassment. My son searched the Internet to find out how to deal with language harassment 

issues and located the Equal Employment Opportunity Commission’s (EEOC) website. 

There, he found guidelines of when an English-on-the-job policy was permitted. It reads that 

such a rule is acceptable if “an employer shows that the requirement is necessary for 

conducting the business. If the employer believes such a rule is necessary, employees must 

be informed when English is required and the consequences for violating the rule.” The 

guidelines fit our situation perfectly. 

We followed the EEOC’s guidelines and in June of 2000, we implemented an English-onthe-job policy. We required all employees to read the policy and sign to indicate that they 

understood the policy and the consequences of violating it. Those individuals who had been 

harassing other employees signed the policy and changed their behavior. The work 

environment and employee morale began to improve immediately. 

Four employees (three who were bilingual and one who spoke English exclusively) disagreed 

with the policy and left their jobs. They applied for state unemployment benefits but were 

denied because the judge determined that they quit RD’s without good cause since they 

spoke English fluently. The four then filed a complaint with the EEOC. 

In 2001 the EEOC launched what I consider to be a phony investigation. Some of our 

employees said they were contacted and encouraged by the EEOC to join a lawsuit against 

us. Our lead cook turned down such an invitation responding, “Why do I want to sue the 

Kidmans? They treat me just fine.” One employee felt so intimidated by the EEOC’s conduct 

that she left town and went to live with her parents for over a year. Others were told they 
English Only Policies in the Workplace 53

could earn a lot of money by joining a lawsuit against us. The lead investigator, Melanie 

Allison, contacted me in August of 2001 informing me that she had concluded that we were 

being “racist” and had violated Title VII of the Civil Rights Act and that fines and 

compensation would be approximately $30,000. I responded that I would not accept that 

finding and would be contacting a lawyer. 

We retained the services of David Seldon, an employment lawyer in Phoenix. He offered to 

work with the EEOC to make necessary changes that would be acceptable to the EEOC. The 

EEOC refused to respond. 

A year after the EEOC investigation, we learned from media reports that the EEOC had filed 

suit against us. It was apparent to me from the very beginning that the EEOC had no 

intention of going to a jury trial; they wanted to either force us to settle on their terms or to 

bankrupt us. Either way, they could declare victory. The director of the EEOC’s Phoenix 

Office, Charles D. Burtner sent a letter dated November 25, 2002 to The Navajo Times, the 

primary newspaper of our customers, saying that our case involved “an assault on employees 

who speak Navajo in the work place...”108 This type of public relations warfare hurt our 

business and some readers called for a boycott of our restaurant. 

During the discovery phase of our legal battle, we provided over 100 witnesses who were 

willing to testify about our language in the workplace problem. The EEOC provided no 

witnesses beyond the four complainants. We learned that three of the recorded interviews of 

key individuals taken during the investigation were “mysteriously” lost by the EEOC. We 

were surprised and dismayed that they would make a determination against us based on 

paraphrased statements provided by the investigator about those key interviews. Despite the 

testimony of management and numerous employees that the language issue was a serious 

problem, the EEOC still considered our policy, which conformed to their guidelines, as 

discriminatory. It was obvious that the EEOC had a preconceived agenda. 

Rather than scheduling a trial, U.S. District Judge Stephen M. McNamee, ordered us to 

participate in a series of settlement conferences with a magistrate. The first two conferences 

failed to achieve anything. 

Instead of letting the case go to trial the judge ordered us to attend a third settlement 

conference with a magistrate. By this time our legal bills had escalated well into six figures. 

Fortunately, a national organization, Pro-English, helped us with legal expenses. Still, we felt 

pressured to try and reach a settlement because the judge appeared determined to keep the 

case out of court. We discussed numerous items but reached no agreement. 

The next day when we reviewed the proposed settlement draft as emailed to us by the EEOC, 

we found that things had been added that had never been discussed in conference and in other 

cases the wording had been changed in ways that would be damaging to us. Our lawyer had 

left the country that morning and we refused to agree to and sign the settlement without 

consulting him. The EEOC lawyers attempted to bully us into signing the document 

immediately. 

 

108 The Navajo Indian Reservation 1980); Vasquez v. McAllen, 660 F.2d 686 (5th Cir. 1981). 
54 Statements

The EEOC was negotiating in bad faith. They were using deceit, thinly veiled threats, and 

every underhanded tactic they could to get us to agree to a settlement that would allow them 

to claim a public relations victory and continue to attack us in the media. Due to financial 

pressure, Mountain States Legal Foundation agreed to take over the task of representing us 

pro-bono. 

We could not agree on terms to repair the settlement so the EEOC filed a new lawsuit against 

us to compel us to accept their version, claiming that we had agreed to something we had not. 

We learned it is a big mistake to attend a settlement conference with the EEOC. Judge 

McNamee rejected most of the EEOC’s demands but determined that some key items had 

been agreed to in conference and ordered a settlement based on those items. From the last 

page of his order regarding the EEOC’s conduct he states, 

“The Court must point out that this case does not reach the high water mark 

of civility among lawyers. The EEOC on more than one occasion, attempted to 

put terms into the agreement that clearly were not agreed to. It is clear from 

the documents and witnesses before the Court that certain terms were clearly 

negotiated out of the settlement agreement, only to be reinstated by the 

EEOC... Finally the Court notes, that if counsel for the parties had not 

resorted to unreasonable demands and ultimatums, and if counsel for the 

EEOC had not continually reinserted terms that were specifically negotiated 

out of the agreement, the parties would likely have concluded this matter in a 

manner favorable to both parties.” 

In early 2007, the 9th Circuit court upheld the judge’s order as binding. However, the 

proceedings established that our English-on-the-job policy was essential to protecting our 

employees and customers from abuse and vital to running our business. It also established 

that our willingness to consider rescinding our English-on-the-job policy was based on 

having the right to reissue it as part of a comprehensive employment policy, subject to EEOC 

review. 

In May 2007 a new policy was created and sent to the EEOC for their review and comment. 

They acknowledged receipt of the policy, but refused to comment on it within the time frame 

allowed. To date, we have heard nothing from them regarding our policy. 

After incurring over $700,000 in costs, we were denied our day in court by the unethical and 

underhanded manipulations of the EEOC. Were it not for the generous help of our attorneys, 

Mountain States Legal Foundation, ProEnglish, and numerous individual contributors, we 

would be out of business. The EEOC must have spent an enormous amount of money in their 

effort to bully us. We almost lost our family business simply because we wanted to create a 

safe environment for our employees by instituting an English-in-the-job policy pursuant to 

EEOC guidelines. 

In closing let me say as a small businessman who strives to earn a living, and do the best I 

can for my family, my employees, and my community, this experience has left me feeling 

very mistreated and abused by an agency of my own government. 
English Only Policies in the Workplace 55

*** 

Linda Chavez 

“Specifying English as the Common Language of the Workplace: Every Employer’s Right or 

Violation of Federal Law?” 

December 12, 2008 

Thank you, Mr. Chairman, for the opportunity to testify this morning before the Commission. 

My name is Linda Chavez, and I am president of One Nation Indivisible. I am also chairman 

of the Center for Equal Opportunity, a nonprofit research and educational organization that 

focuses on public policy issues that involve race and ethnicity, such as civil rights, bilingual 

education, and immigration and assimilation. 

I have served as Staff Director of the U.S. Commission on Civil Rights (1983-1985), and 

Chairman of the National Commission on Migrant Education (1988-1992). In 1992, I was 

elected by the United Nations’ Human Rights Commission to serve a four-year term as U.S. 

Expert to the U.N. Sub-commission on the Prevention of Discrimination and Protection of 

Minorities, and I was Co-Chair of the Council on Foreign Relations’ Committee on Diversity 

from 1998-2000. I am the author of, among other books, Out of the Barrio: Toward a New 

Politics of Hispanic Assimilation (Basic Books 1991), which dealt with, among other things, 

the English language movement and Hispanics and language rights. 

In our free-market economic system, there should be a strong presumption that employers are 

left to run their businesses in the way they deem best. The exceptions to this principle are and 

ought to be limited. An argument that, in particular, a particular policy is simply “unwise” or 

“unfair” ought therefore to be addressed to the employer, and the decision about whether it is 

persuasive or not left to the employer or, in cases where a collective bargaining agreement 

exists, ought to be left to the employer and the union to negotiate. 

The obvious possible exception to this principle in the matter we are discussing this morning 

involves discrimination on the basis of race or ethnicity. There is a national consensus that 

employers ought not to be allowed to engage in such discrimination, and of course that 

consensus is reflected in our civil rights statutes, in particular Title VII of the 1964 Civil 

Rights Act. 

Accordingly, the question we ought always to keep before us when we are scrutinizing an 

employer’s language policies is whether that policy discriminates against an employee 

because of his skin color or his ethnic group. If the answer is yes, then there is a role for the 

Equal Employment Opportunity Commission. Otherwise, the EEOC should back off. 

Now, it is conceivable that an employer might use language or language proficiency as a 

pretext for discriminating on the basis of ethnicity. For instance, if an employer in South 

Texas whose business is grave-digging, and who in the past has expressed his reluctance to 

hire Mexican Americans, one day announces that he will refuse to hire anyone with a trace of 
56 Statements

a non-English accent--well, I’m prepared to believe that his new policy is probably designed 

to keep out Mexican Americans, and I would support the EEOC investigating the employer 

and, if it reached that conclusion, bringing a lawsuit. 

But the overwhelming majority of employers who want their employees to be able to speak 

English, and speak it intelligibly to their coworkers and customers, and who want it to be 

spoken in the workplace, are not doing so because they want to keep members of a particular 

ethnic group out of the workplace or harass them once they are there. Instead, the employer 

will have perfectly legitimate and nondiscriminatory reasons for the policy, of which there 

are many. For example, an employee might revert to a language other than English to insult 

other employees or customers, or to engage in insubordinate behavior and avoid detection by 

a supervisor. In one California case on record, a Spanish-speaking employee routinely used 

Spanish to hurl vicious racial insults at her African American and Asian co-workers, but sued 

when her employer attempted to enforce an English-on-the-job rule. While an appellate court 

upheld the employer’s right to force employees to speak English on the job, not all courts 

have come down the same way. And in at least one case, the court’s solution to an 

employer’s claim that English was needed to ensure supervisors’ ability to monitor whether 

employees were hurling racial insults was to force the employer to hire bilingual supervisors, 

which, in effect, forced the company to fire the existing black supervisors who did not speak 

Spanish. 

Let me also say that, even if the EEOC is able to cobble together a “disparate impact” lawsuit 

against a particular employer, as a matter of its own discretion it should not sue the employer 

unless the agency thinks it can prove a “disparate treatment” case. I know that, unfortunately, 

Title VII allows for disparate impact lawsuits, but this doesn’t mean that the EEOC has to 

bring one every time it can. In this language area, in particular, the EEOC’s limited time and 

resources are better spent going after real discrimination. Unlike race, gender, or national 

origin, language is not immutable but learned. Discriminating against someone because she is 

a woman, or black, or because she or her parents were born in another country is different 

from insisting that she learn to type before being hired as a secretary or learn to speak 

English before being hired to take orders in a fast-food restaurant. And would we support a 

disparate impact claim if a firm that primarily does business in Latin America refused to hire 

a sales representative who did not speak Spanish even if such a rule was more likely to 

exclude white or black employees born and raised in the United States? 

I would favor, by the way, legislation that would bar the EEOC from bringing these 

language-based lawsuits, and certainly where the EEOC can assert only a disparate impact. I 

would urge this Commission to urge Congress to do pass such legislation. Senator 

Alexander, as you all know, has played a leading role in supporting a bill like this. 

I am not a lawyer, so I don’t want to dwell further on the legal analysis here this morning. I 

am instead attaching two legal analyses that, while somewhat dated, are I think nonetheless 

very helpful. The paper by Barnaby Zall that my organization published in 2000 does not 

reflect some more recent, and more problematic, court decisions in this area--a trend fed by 

the EEOC’s unwise policies. (The erroneous equation of language and national origin may 

also have been fed by Executive Order 13,166, which in turn rests on the disparate-impact 
English Only Policies in the Workplace 57

regulations that have been promulgated under Title VI of the 1964 Act--a promulgation 

which, in the view of the Center for Equal Opportunity, is ultra vires and illegal. See 

http://www.ceousa.org/content/view/338/96/.) 

What I want to stress, instead, is why as a matter of policy it is a very bad idea for the federal 

government to be doing anything that discourages English acquisition. 

America has always been a multiethnic society, and it is becoming more so. We have always 

been a nation of immigrants. That is a great strength, but for such a society to work, we must 

celebrate our unity. We must cultivate our common bonds, and we must be able to 

communicate with one another. Our common language is the most important social glue that 

keeps us together. 

It does immigrants no favor to remove incentives for their mastering English. Forcing 

employers to run their workplaces on a multilingual basis is not only dubious as a matter of 

law, and costly in its economic effect -- it is disastrous as a matter of national policy. The 

workplace has always played an important role in assimilating new immigrants into 

American society. It should be encouraged, not discouraged, in playing that role. 

For instance, we have urged Congress to provide tax credits and other incentives to 

employers to teach English to their employees. It would be very odd for the federal 

government, on the one hand, to urge employers to teach their employees English--while, on 

the other hand, prosecuting them or other employers when, for nondiscriminatory reasons, 

they adopted policies that English be spoken. 

The overwhelming majority of immigrants expect that they must learn English and are eager 

to do so. 

Thank you again, Mr. Chairman, for the opportunity to testify today. I look forward to any 

questions you and the other Commissioners may have. 

Appendix A: Article from Barnaby Zall, English in the Workplace: The EEOC’s Abuse of Its 

Authority, A Policy Brief, Center for Equal Opportunity, November 2000. 

Article constituting Appendix A begins on next page followed by an article by Roger Clegg

that constitutes Appendix B. 
58 Statements

Appendix A: Barnaby Zall
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*** 

Appendix B: Roger Clegg, “Tongue-Tied,” Labor and Employment News (Winter 1998) 

(Federalist Society newsletter). 

http://fedsoc.server326.com/Publications/practicegroupnewsletters/labour&employment/tong

ue-laborv2i3.htm] 

Tongue-Tied 

Roger Clegg [President and General Counsel, Center for Equal Opportunity] 

Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the basis 

of, among other things, "national origin." To what extent does this prohibition limit an 

employer’s ability to discriminate on the basis of language? Two basic kinds of employer 

practices are commonly implicated. The first is the requirement that employees speak only 

English on the job. The second is that the English they speak not be less intelligible because 

of lack of fluency or a foreign accent. 

Logically, of course, language and national origin are distinct. Some people of a particular 

national origin will desire to speak a non-English language on the job, or will not speak 

English well, but others will not. Conversely, some people not of that national origin will 

desire to speak a non-English language on the job, or won’t speak English well. Not every 

Mexican American will want to speak Spanish on the job or will speak English badly or with 

a Spanish accent. And there will be some people who aren’t Mexican Americans who will 

want to speak a foreign language on the job or who won’t speak English well. 
English Only Policies in the Workplace 69

The EEOC’s Position

The Equal Employment Opportunity Commission’s "Guidelines on Discrimination Because 

of National Origin" are set out in 29 C.F.R. part 1606. Section 1606.1, "Definition of national 

origin discrimination," begins: "The Commission defines national origin discrimination 

broadly as including, but not limited to, the denial of equal employment opportunity because 

of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the 

physical, cultural or linguistic characteristics of a national origin group." 

The italicized passage has some surface appeal but is also potentially troublesome. It is 

certainly conceivable that an employer might choose to exclude those with a "physical, 

cultural or linguistic characteristic of a national origin group" as a means of discriminating 

against that group. For instance, if an employer refused to hire people with Chinese accents, 

but not those with Japanese or Spanish accents, then there would be strong evidence that he 

wanted to exclude applicants of Chinese national origin. But in a disparate treatment case the 

ultimate question will always be whether national origin was in fact the reason for the 

exclusion. The fact that a characteristic is merely correlated with national origin is not 

dispositive. For instance, it may be the case that Italians are, disproportionately, reckless 

drivers; but it is unlikely that a trucking company intends to discriminate by requiring good 

driving skills. 

Section 1606.6, "Selection procedures," cautions that "Fluency-in-English requirements, such 

as denying employment opportunities because of an individual’s foreign accent, or inability 

to communicate well in English," "may be discriminatory on the basis of national origin," 

and thus the Commission "will carefully investigate charges" involving such requirements 

"for both disparate treatment and adverse impact." 

Section 1606.7, "Speak-English-only rules," provides (emphasis added): 

A rule requiring employees to speak only English at all times in the workplace is a burdensome term and 

condition of employment. The primary language of an individual is often an essential national origin 

characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the 

language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of 

national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national 

origin which could result in a discriminatory working environment. Therefore, the Commission will presume 

that such a rule violates title VII and will closely scrutinize it. 

This certainly makes clear that the EEOC doesn’t like it when employers require employees 

to speak English at all times, but it does not explain the Commission’s reasoning. What does 

it mean to say, "The primary language of an individual is often an essential national origin 

characteristic"? As discussed above, language and national origin are always distinct issues; 

so, presumably, this says nothing more than that, in the EEOC’s view, the two are highly 

correlated. The quoted passage then twice assumes the conclusion. It simply asserts that 

prohibiting employees from speaking the language they’d like to speak disadvantages 

employment opportunities "because of national origin"; and that it may create a hostile 

atmosphere "based on national origin which could result in a discriminatory working 

environment." 
70 Statements

Disparate Impact

The clear distinction between language and national origin ought to protect most Englishonly and English-fluency policies from disparate treatment claims, but employers have more 

to fear from disparate impact lawsuits. There is no doubt, after passage of the 1991 

amendments, that disparate impact analysis is available under Title VII for national origin 

discrimination, and the EEOC regulations and its Compliance Manual explicitly promise to 

use that approach (in addition to disparate treatment). If the Commission or a private plaintiff 

can show that an English-only rule or English-fluency requirement has a disparate impact on 

those with a particular national origin, then the employer must prove "that the challenged 

practice is job related for the position in question and consistent with business necessity."(1) 

Thus, the EEOC asserts in 29 C.F.R. 1606.7 (b) that a speak-English-only rule that is applied 

only at certain times may be permissible if "the employer can show that the rule is justified 

by business necessity."(2) 

The EEOC’s Compliance Manual—which devotes Section 623 to "Speak-English-Only 

Rules and Other Language Policies," namely fluency requirements and accent 

discrimination—outlines the Commission’s disparate impact approach in greater detail. 

According to the manual, "a speak-English-only policy or practice is presumed to have an 

adverse impact against the affected group"—that is, it will "adversely affect an individual’s 

employment opportunities on the basis of national origin where that individual’s primary 

language is not English"—and "charges of this nature do not require an analysis under the 

Uniform Guidelines on Employee Selection Procedures."(3) The Compliance Manual 

discusses some possible business necessity defenses(4), such as productivity and good 

communication among coworkers, with customers and clients, and with supervisors; the 

manual is decidedly skeptical about mere customer and coworker "preference" or an 

employer’s desire to improve employees’ English-language skills. 

Don’t Forget IRCA

While Title VII is the most important statute in this area, it is not the only one. The 

Immigration Reform and Control Act (IRCA) prohibits discrimination against employees on 

the basis of national origin or because of citizenship status (with some exceptions, the most 

important being illegal aliens). IRCA is enforced by the Justice Department’s Office of 

Special Counsel for Immigration Related Unfair Employment Practices. This statute applies 

to businesses with four or more employees, while Title VII applies only to businesses with 

fifteen or more employees. According to an Office of Special Counsel "Fact Sheet," it brings 

national origin cases only against employers with from four to fourteen employees, leaving 

the rest to the EEOC.(5) 

The Justice Department agrees with the EEOC that language discrimination can be national 

origin discrimination. The Office of Special Counsel states flatly in a brochure: "YOU ARE 

DISCRIMINATING IF YOU ... Demand that employees speak only English on the job." 

Another brochure says, "National origin discrimination refers to unequal treatment because 

of nationality, which includes place of birth, appearance, accent, and can include language." 

That brochure also equates discrimination on the basis of someone appearing to be "foreign" 
English Only Policies in the Workplace 71

with national origin discrimination. The Office of Special Counsel has run subway and 

newspaper ads warning that the "ability to speak fluent English" must not "affect [an 

employer’s] decision about hiring a prospective employee," according to the Manhattan 

Institute’s Walter Olson. 

It is not clear that a disparate impact model is available under IRCA. There do not appear to 

be any judicial decisions recognizing disparate impact, nor any disparate impact cases 

brought by the government, under IRCA. 

Rethinking the Government’s Role

The courts have been frequently skeptical of the EEOC’s position in this area.(6) Walter 

Olson has written columns documenting dubious efforts by the government to bar fluency 

requirements,(7) and the confusion in this area and the aggressiveness of the EEOC also was 

the subject of a recent Wall Street Journal article.(8) 

The fundamental problem with the government’s approach is that it assigns a heavy 

presumption that any language-based policy is a form of national origin discrimination. This 

is misguided not only logically, but legally and as a matter of policy, too. The Supreme Court 

has made clear that national origin discrimination means hostility to a particular ancestry, not 

a general preference for things American or dislike of things foreign.(9) 

Finally and most fundamentally: as a policy matter, why should the government assume that 

an employer who wants his employees to speak English and speak it well is really trying to 

discriminate against, say, Mexican Americans because of where they came from? Why 

should it assume that the company doesn’t have a legitimate, nondiscriminatory reason for 

such a policy? Are hardworking employees so plentiful that employers will want to hire them 

and then antagonize them for no good reason? 

In a global economy and multi-ethnic country, it seems especially dubious to have the 

government second-guessing the private sector’s language and communications judgments. 

Indeed, a fluency requirement could involve a language other than English, in which case its 

beneficiaries and complainants might be surprising. The EEOC’s Compliance Manual, 

ironically, supplies this example of a business practice some plaintiffs would challenge as a 

violation of the law, even though there are sound reasons for it in a multilingual society: 

R, a movie theater, requires that all of its employees who have contact with the public be 

bilingual in English and Spanish. [Plaintiffs] allege that R’s bilingual requirement has an 

adverse impact on Blacks. R claims that its bilingual requirement is a business necessity 

since it is located in a community which is primarily Hispanic and the majority of its 

customers speak only Spanish. 

Rather than harass employers who are unlikely to harbor any national origin animus, the 

EEOC should hold its tongue. 

1. 42 U.S.C. sec. 2000e-2(k)(1)(A)(i). 
72 Statements

2. But even then, according to Section 1606.7 (c), the employer must inform its 

employees of when the rule applies and what the consequences for violating it are—

otherwise, "the Commission will consider the employer’s application of the rule as 

evidence of discrimination on the basis of national origin." 

3. EEOC Compliance Manual, 165-66, sec. 623.6. 

4. Id.170-74, sec. 623.6(d). 

5. Cf. 8 U.S.C. 1324b (b)(2) (aimed at preventing overlap in EEOC/Title VII 

complaints and Office of Special Counsel/IRCA complaints). 

6. See Christine Cesare & Lisa Lerner, "English Only" Policies: A Guide for the 

Perplexed,10 Emp. L. Strategist 1 (Feb. 1996); Tim A. Thomas, Annotation, 

Requirement that Employees Speak English in Workplace as Discrimination in 

Employment under Title VII of the Civil Rights Act of 1964, 90 A.L.R. Fed. 806 

(1988 & 1997 Supp.); When Does Adverse Employment Decision Based on 

Person’s Foreign Accent Constitute National Origin Discrimination in Violation of 

Title VII of the Civil Rights Act of 1964?, 104 A.L.R. Fed. 816; Michael J. Zimmer 

et al., Cases and Materials on Employment Discrimination 773-82 (1997 & 1998 

Supp.); see also Lisa L. Behm, Protecting Linguistic Minorities Under Title VII: 

The Need for Judicial Deference to the EEOC Guidelines on Discrimination 

Because of National Origin, 81 Marq. L. Rev. 569 (1998). 

7. Anti-Discrimination Ad Absurdum, N.Y. Post, Aug. 24, 1997; Say What?: Civil 

rights enforcers go after "accent discrimination,"’ Reason, Nov. 1997, at 54. 

8. Ann Davis, English-Only Rules Spur Workers to Speak Legalese, Wall St. J., Jan. 

23, 1997, at B1. 

9. The Supreme Court ruled in Espinoza v. Farah Manufacturing Co., 44 U.S. 86 

(1973), that it was not national origin discrimination when a pre-IRCA employer 

refused to hire a noncitizen. The Court there—per Justice Marshall, with Justice 

Douglas the only dissenter—endorsed an early EEOC opinion, that "’national 

origin’ refers to the country from which the individual or his forbears came..., not 

whether or not he is a United States citizen..." (id. at 94, quoting EEOC General 

Counsel’s Opinion Letter, 1 CCH Employment Prac. Guide para. 1220.20 (1967)). 

The Court had correctly noted, "Certainly the plain language of the statute supports 

[that] result" (id. at 88), and thought Title VII’s legislative history "suggest[ed] that 

the terms ‘national origin’ and ‘ancestry’ were considered synonymous" (id. at 89). 

What’s more, the Court expressly rejected the EEOC’s attempt to ban 

discrimination against foreigners by arguing that it would have a disparate impact 

on the basis of national origin (id. at 92-95). It would seem to follow that 

discrimination against all foreign languages and accents doesn’t violate the law; 

only discrimination against a language or accent associated with a particular 

national origin. 

*** 
English Only Policies in the Workplace 73

Kerry O’Brien 

Senior Manager, Legal Program CASA de Maryland 

The issue of English-only workplace policies is of great concern to the community we serve. 

As our country becomes increasingly multi-lingual, so do the individuals that make up its 

workforce. The problems that arise out of these often faulty, over-generalized and misplaced 

policies jeopardize the safety of many employees who are non-native speakers and raise 

questions about the true reasons for their implementation. 

According to the U.S. Census Bureau roughly 55 million residents age 5 and older speak a 

language other than English at home. That number eclipses the entire population of countries 

like Colombia and Argentina. Still, we are seeing more and more employers insisting that 

their employees speak only English at work. Although the EEOC guidelines allow for the 

implementation of these policies when they can be shown to be a business necessity, they 

also make clear the potential harms that must be weighed when making these decisions. 

English-only rules are viewed by the EEOC as a “burdensome term and condition of 

employment” with the potential to “create an atmosphere of inferiority, isolation and 

intimidation based on an individuals’ national origin.” With this perspective in mind, the 

number of jobs that could qualify under the business necessity provision are limited. 

With immigration issues at the forefront of social and political discourse, English-only 

policies walk a very fine line between justified workplace requirements and unlawful 

discrimination. At times, the justifications given by employers for these language restrictions 

are so contradictory that they result in significant employee confusion and frustration. For 

example, one group of women employed by a retail chain in Maryland expressed their fear 

that if they were to answer questions from their largely Spanish speaking clientele in 

anything but English they would be subject to termination. At the same time, they were 

concerned that clients would complain about the quality of their customer service if they 

refused to answer their questions in a manner they could understand. In a situation like this it 

hardly seems necessary for a business to forbid its employees from communicating 

effectively with its clients. There is no doubt that employers are using these policies to 

enforce an anti-immigrant point of view, and therefore systematically violating the federal 

laws of the United States. 

A second and perhaps more important issue is that of ensuring that companies are taking 

adequate measures to protect the health and safety of their employees. English-only policies 

restrict communication between employees, supervisors and clients. This limitation could 

severely inhibit the ability of these individuals to protect themselves and each other in 

emergency situations. Enforcement of English-only rules could result in an employee’s 

inability to gauge the severity or existence of a health or safety risk until it is too late. 

The relatively sudden outbreak of English-only workplace policies over the last several years 

highlights an even bigger issue, which is the implementation of English-only ordinances in 

cities, counties and towns across the country. In Maryland alone there have been Englishonly regulations passed or proposed in Frederick County, the town of Thurmont, 

Walkersville, College Park, and Taneytown, to name a few. These policies serve only to 
74 Statements

deepen the hostility between immigrant and non-immigrant communities in these towns and 

increase the divide that makes integration all but impossible. 

*** 

Laura Brown 

Good morning. My name is Laura Brown and I am an attorney with the D.C. Employment 

Justice Center. The mission of the Employment Justice Center is to secure, protect and 

promote workplace justice in the D.C. metropolitan area, and in striving to achieve its 

mission, the EJC advises, counsels and/or represents over 900 limited English proficient 

individuals each year in the full range of employment-related legal disputes. 

 

I appreciate the opportunity to testify here today, and I believe that the EJC brings a unique 

and compelling perspective to this hearing. While others here today, such as my colleague 

from the EEOC, will no doubt delve into the legal arguments for rightfully prohibiting an 

employer from imposing an “English- only” rule in its workplace, I wish to add context to 

these arguments by speaking from my experience of working with clients in the EJC’s 

workers rights clinics. Simply and practically speaking, “English-only” rules in the 

workplace are unfair to non-native English speaking workers and, in fact, ultimately 

undermine the employer’s articulated purposes for implementing them in the first place. 

At the Employment Justice Center’s weekly workers’ rights clinics, approximately 40% of 

the workers we see are limited or not English proficient. The majority of these are native 

Spanish speakers. A brief examination of the types of work they do and the workplaces in 

which they labor reveals that an adoption of an “English-only” workplace rule by any of their 

employers could not be justified by legitimate business necessity and, indeed, would be 

completely illogical. 

The people the EJC sees are construction workers, kitchen employees, maids, janitors, 

landscapers, nannies, parking attendants, and security guards, among other occupations. 

Their workplaces are hotels, restaurants, construction sites, office buildings, parking garages, 

and private homes. These employees are rarely the only employees in their workplaces who 

speak the same primary language that they do. In fact, the availability of jobs frequently 

spreads within an ethnic community by word of mouth, resulting in pockets of, for example, 

Amharic-speaking Ethiopian parking garage attendants, French-speaking Haitian 

housekeepers, and Spanish-speaking Latino construction workers, landscapers, and banquet 

servers. 

While a customer leaving his or her car at a parking garage in D.C. may be spoken to in 

English, finding out, for example, when he will return to pick up the car, the most substantive 

conversation which typically occurs about how and where that car is ultimately parked often 

takes place in Amharic. Likewise, while an attendee at a banquet in one of Washington’s 

posh hotels will most likely be served in English, the directions given to the team of servers 

about logistics, and details like a server’s instruction to his co-worker about bringing more 

coffee to the table, will likely be in Spanish. 
English Only Policies in the Workplace 75

To implement an “English-only” rule in either of these contexts would not only be unfair; it 

would be disastrous. The workers in both of these contexts deal with customers to some 

degree, but the vast substance of their work depends on successful communication with their 

co-workers; requiring them to speak English amongst themselves, even on the job, would 

lead to confusion and an inability to best serve the customers. While some might opine that 

this inability to perform work effectively in English should reasonably constitute grounds for 

dismissal, this is neither reasonable nor realistic in either of these industries, who could not 

survive without these groups of employees. 

The reasons most commonly articulated by employers for implementing “English-only” 

workplace rules are to improve employees’ English proficiency, promote workplace 

harmony, enhance the effectiveness of employee supervision, and promote safety and 

efficiency in the workplace. Implicit in these goals is the assumption that because employees 

are prohibited from speaking in their own native languages, they will communicate in 

English. This theory is not born out in the workplace; individuals who are prohibited from 

speaking their own native languages in the workplace are instead silenced. 

This resultant lack of communication exacerbates the problems which “English-only” rules 

are, according to their proponents, ostensibly being instituted to resolve. When employees 

don’t talk to each other, non-English speaking minorities are further isolated and 

marginalized. Certainly, this does nothing to promote workplace harmony. Similarly, 

isolation and minimal communication does nothing to foster safety or efficiency. A safe and 

efficient work place is not one in which employees are prohibited from communicating in the 

language that they speak most clearly and fluently. 

Because of the further marginalization which results from their implementation, “Englishonly” rules do not motivate or provide an incentive for workers to learn English. The 

importance of learning English is often accompanied by a call to promote the assimilation of 

ethnic minorities into American society. However, cultural assimilation does not happen by 

the further marginalization of an ethnic minority; this only serves as a further obstacle to 

assimilation. Employers who wish to contribute to the assimilation of their ethnically diverse 

workforces would be more successful if they offered the opportunity for free English classes 

to their non-English speaking workers, or fostered an atmosphere in which they strived to 

learn as much Spanish as their employees learned English. 

In conclusion, despite the rationalizations for promulgating “English-only” rules, in reality 

these rules are usually the manifestation of English speaking employers’ discomfort and 

distrust in managing a workforce that they have come to depend on. We have always prided 

ourselves as a “nation of immigrants” and as a country with rich cultural traditions which 

reflect the background of its people. Our society has and continues to evolve and develop 

through the introduction of new cultures which shape who we are. Rather than implementing 

“English-only” rules, employers and their workers would be better served if employers could 

embrace the realities of a multi-cultural workforce and engage in some creative problemsolving with their workforce in order to address some of the communication issues by which 

they are challenged. Thank you for your time and attention. 
76 Speaker Biographies 

Speaker Biographies 

Reed Russell 

Legal Counsel, U.S. Equal Employment Opportunity Commission 

Reed L. Russell has been sworn in as Legal Counsel of the U.S. Equal Employment 

Opportunity Commission (EEOC), overseeing internal and external policy guidance for the 

nation’s premier civil rights agency. Russell, most recently counsel with the Washington 

office of Akin Gump Strauss Hauer & Feld, was appointed last month by President Bush. 

“We are delighted to welcome Reed Russell as EEOC’s Legal Counsel,” Chair Naomi C. 

Earp said. “Reed’s professional background, which encompasses legal, military and business 

experience, renders him uniquely suited to address existing and emerging employment law 

issues and trends. I would also like to thank Peggy Mastroianni for her diligent work as 

Acting Legal Counsel during the past four years.” 

The EEOC’s Office of Legal Counsel (OLC) serves as the principal advisor to the 

Commission on enforcement matters. OLC represents the Commission in defensive litigation 

and administrative hearings. OLC prepares Commission decisions on charges for which there 

is no precedent. OLC writes regulations, conducts outreach and education efforts, and 

coordinates all federal issues affecting equal employment opportunity. 

“EEOC’s OLC office is involved in analyzing and shaping policy on the cutting-edge EEO 

issues that affect employers and employees across the country every day,” Russell said. 

“Getting to help shape such policy and work with so many experts on EEO law was an 

opportunity I could not pass up.” 

For the past eight years, Russell practiced employment law at Akin, primarily litigating wage 

and hour and some employment discrimination class actions, as well as handling individual 

employment discrimination cases and counseling employers on employment practices. 

Russell served in the Army Reserves and the National Guard, including an active duty tour in 

Iraq from June 2005 until March 2006, where he was an advisor to Iraqi Special Police in 

Ramadi and later Baghdad. He was class valedictorian at Catholic Law School in 1999, and 

graduated from Wake Forest University in 1991 with a bachelor’s in business administration. 

Russell and his wife have two young sons, and expect to welcome a baby daughter from 

South Korea in the spring of 2008. 

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. 

Further information about the EEOC is available on its web site at www.eeoc.gov. 
English Only Policies in the Workplace 77

Timothy J. Riordan 

Defrees & Fiske 

200 S. Michigan Ave. Suite 1100 

Chicago, Illinois 60604 

Timothy J. Riordan concentrates his practice in litigation, employment, corporate and 

municipal law. He also serves as general counsel for numerous companies and a suburban 

park district. 

He has tried numerous bench and jury trials in state and federal courts in Illinois and other 

states involving personal injuries, employment and commercial law. He has also represented 

clients before various administrative agencies such as the Federal Equal Employment 

Opportunity Commission, the Illinois Department of Human Rights, and the Federal 

Aviation Administration. 

For example, he has been responsible for a multi-million dollar claim in the Federal Court of 

Claims for extras on a construction project; a suit in federal court for trademark infringement 

against a nationally known retailer and sports celebrity; the prosecution and defense of sexual 

harassment and discrimination claims and claims arising out of non-competition agreements 

and other aspects of employee-employer relationships. 

Mr. Riordan received a B.A. degree in Philosophy from Loras College in 1962 and a J.D. 

degree from Northwestern University School of Law in 1965. 

Mr. Riordan was an Assistant Attorney General for the State of Illinois in the revenue 

litigation department from 1965 - 1966 and a Special Assistant Attorney General for the State 

of Illinois specializing in insurance company insolvencies and condemnations from 1969 to 

1975. 

He has been admitted to practice in Illinois, the United States District Court for the Northern 

District of Illinois, United States Court of Appeals for the Seventh Circuit, the Illinois Court 

of Claims, the Circuit Court of White County, Arkansas, the District Court of the District of 

Massachusetts, the District Court of the District of Arizona, and the United States Court of 

Federal Claims. 

Mr. Riordan is a member of the Chicago Bar Association where he has actively served on 

various committees, including the Younger Members Committee, Judicial Candidates 

Committee, Probate Committee, Circuit Court Committee, Federal Court Committee, and the 

Labor and Employment Law Committee. 
78 Speaker Biographies 

K.C. McAlpin 

Executive Director, ProEnglish 

K.C. McAlpin grew up in Houston, Texas. He is a C.P.A. with an international business 

degree from the University of Texas at Austin and a master's degree in international 

management from the Thunderbird Garvin School of International Management in Glendale, 

Arizona. For several years he worked for an oil company in South America, Central 

America, and the Caribbean. Later he worked as a financial analyst for a Fortune 500 

company and then as international controller for a high-tech company, before turning to 

public interest work in 1995. 

K.C.'s experience working overseas speaking foreign languages made him appreciate the 

critical role that language fills in promoting empathy and understanding between people. He 

also became aware of the conflicts that inevitably arise when people are unable to speak a 

common language. His concern about the erosion of English as the common language in the 

United States led him to join and become active in ProEnglish, a national non-profit 

organization dedicated to preserving English as our common language and to making it the 

official language of the United States. He was named the organization's executive director in 

2000. 

Media Experience

K.C. has appeared frequently as a guest on radio and television programs including ABC's 

"Good Morning America;" Fox Morning News; CNN News; CSPAN; National Public Radio; 

CNBC; CNN's "Both Sides" with host Jesse Jackson, and "The Lou Dobbs Show;" MSNBC's 

"Connected Coast to Coast;" and numerous other media programs. K.C. can be reached for 

media programs at (703) 816-8821. 

Richard Kidman 

Richard Kidman of RD’s Drive-In in Page, Arizona is the defendant in EEOC v. Kidman, in 

which the EEOC brought suit under Title VII over an English-only policy governing 

employees at the restaurant. 

Linda Chavez 

Linda Chavez is chairman of the Center for Equal Opportunity, a non-profit public policy 

research organization in Sterling, Virginia. She also writes a weekly syndicated column that 

appears in newspapers across the country and is a political analyst for FOX News Channel. 

Chavez authored Out of the Barrio: Toward a New Politics of Hispanic Assimilation (Basic 
English Only Policies in the Workplace 79

Books 1991), which the Denver Post described as a book that “should explode the 

stereotypes about Hispanics that have clouded the minds of patronizing liberals and 

xenophobic conservatives alike.” National Review described Chavez’s memoir, An Unlikely 

Conservative: The Transformation of an Ex-Liberal (Basic Books 2002), as a “brilliant, 

provocative, and moving book.” Chavez’s latest book, Betrayal: How Union Bosses Shake 

Down Their Members and Corrupt American Politics (Crown Books, 2004), describes how 

unions divert hundreds of millions of dollars into political campaigns, often without their 

members’ knowledge or permission, and the public policy consequences that ensue. In 2000, 

Chavez was honored by the Library of Congress as a “Living Legend” for her contributions 

to America’s cultural and historical legacy. In January 2001, Chavez was President George 

W. Bush’s nominee for Secretary of Labor until she withdrew her name from consideration. 

Chavez has held a number of appointed positions, among them Chairman, National 

Commission on Migrant Education (1988-1992); White House Director of Public Liaison 

(1985); Staff Director of the U.S. Commission on Civil Rights (1983-1985); and she was a 

member of the Administrative Conference of the United States (1984-1986). Chavez was the 

Republican nominee for U.S. Senator from Maryland in 1986. In 1992, she was elected by 

the United Nations’ Human Rights Commission to serve a four-year term as U.S. Expert to 

the U.N. Sub-commission on the Prevention of Discrimination and Protection of Minorities. 

Chavez was also editor of the prize-winning quarterly journal American Educator (1977-

1983), published by the American Federation of Teachers, where she also served as assistant 

to AFT president Al Shanker (1982-1983) and assistant director of legislation (1975-1977). 

Chavez serves on the Board of Directors of ABM Industries, Inc., Pilgrim’s Pride, and IDT 

Capital, a subsidiary of IDT Corporation, as well as on boards of several non-profit 

organizations. Chavez is also active in the Republican Party and chairs the Latino Alliance, a 

federally registered political action committee. 

Chavez was born in Albuquerque, NM, on June 17, 1947, received a Bachelor of Arts degree 

from the University of Colorado in 1970. She is married and is the mother of three sons. She 

currently lives in Purcellville, Virginia. 

Kerry O’Brien 

Senior Manager, Legal Program at CASA de Maryland 

Kerry O’Brien is Senior Manager of the Legal Program at CASA de Maryland. From 1998 to 

2005, she was engaged in building and growing the District of Columbia’s first workers’ 

rights center. From 1998 to 2000, she was the Crowell & Moring Equal Justice Works fellow 

at Bread for the City, where she started an employment practice. In 2000, she co-founded the 

D.C. Employment Justice Center with Judy Conti and was co-director until 2005. The EJC is 

an employment rights center for low-wage workers which provides legal services, mainly 

through a weekly Wednesday workers’ rights clinic, advocates for positive workplace laws 
80 Speaker Biographies 

and organizes workers to build power. Kerry and Judy were named Lawyers of the Year by 

the Metropolitan Washington Employment Lawyers Association and also won fellowships 

from the Echoing Green Foundation for social entrepreneurship. She was also a rule of law 

liaison for the American Bar Association in Yerevan, Armenia, and a campaign coordinator 

at the Service Employees International Union. She is a 1998 cum laude graduate of 

Georgetown University Law Center and a 1992 graduate of the University of Texas at 

Austin. She is proficient in Russian and Spanish, and in 2008, completed a course at the 

Academia Espanol in Medellin, Colombia. She is licensed to practice law in Maryland and 

D.C. 

Laura Brown 

Managing Attorney, Legal Services 

Laura Brown joined the D.C. Employment Justice Center as the Legal Services Managing 

Attorney in September 2008. She has overall responsibility for managing the EJC’s Workers’ 

Rights Clinic. Prior to coming to the EJC, Laura was a staff attorney at Quality Trust for 

Individuals with Disabilities in Washington D.C. Laura has also worked as an associate at the 

law firm of Woodley & McGillivary, a Washington D.C.-based law firm specializing in 

federal wage and hour cases and union representation, and as a staff attorney/business agent 

with UNITE HERE Local 25, the hotel and restaurant employees’ union in D.C. As a student 

at Santa Clara University School of Law, Laura both volunteered and clerked at the Workers’ 

Rights Clinics of the Employment Law Center in San Francisco, the program on which EJC’s 

legal services program was modeled. Laura is a member of the District of Columbia and 

California bars. 
English Only Policies in the Workplace 81

 

Statements of Commissioners 

Abigail Thernstrom 

STATEMENT OF COMMISSIONER THERNSTROM 

English Only Policies In the Workplace 

The question of the rights of employers to demand that employees speak English is not easily 

resolved. Title VII of the 1964 Civil Rights Act makes it unlawful for an employer “to 

discriminate against any individual . . . because of such individual's race, color, religion, sex 

or national origin.” There is, however, no settled definition of discrimination. 

The statutory provision bars policies or practices that impose particularly heavy burdens on 

members of protected groups that cannot be defended as a business necessity and operate as 

barriers to equality in workplace. Are there objective criteria that can be used to measure 

such unacceptable burdens? 

Specifically, with respect to English-only policies, is a prohibition on expressions of cultural 

identity a burden as defined by Title VII?109 If so, there would seem to be a statutory right of 

employees to speak the language of their choice in the workplace. And, likewise, there would 

be an entitlement to other expressions of cultural identity. They might include dress and 

hairstyles that at least some employees believe to be central to their cultural self-definition. 

But are judges and federal agencies likely to be good arbiters in deciding questions of 

cultural identity? Do they have some special expertise when it comes to identifying the 

values or practices that are integral to the culture of a racial, ethnic, or other protected group? 

The answer, I think, is clearly, no. What aspects of cultural identity should be protected in the 

workplace is not a matter of rights; it is one that should be negotiated and decided by the 

parties involved on the basis of facts and priorities in particular contexts. Indeed, within 

specific companies, rules that seem legitimate in one corner of the business are likely to be 

less so in another. To take the clearest example, chitchat in the lunchroom is different than 

dealing with a customer who expects to be able to converse in English. 

To turn the expression of cultural identity into a protected right is to start down a road that 

leads to a place we do not want to be – namely, a more segregated America. Ethnic culture 

should not be equated with race; the one is fluid, the other immutable, and to conflate the two 

exacerbates the sense of group differences that is already too high. Moreover, broadening the 

109 The phrase “cultural or linguistic characteristics” appears throughout this briefing report. I use the more 

compact term “cultural identity.” 
82 Commissioner Statements 

category of protected rights risks creating a society in which Latinos and others are less 

likely to acquire a skill essential to economic mobility. English is the lingua franca of their 

adopted country; they need to know it. 

Most Americans believe in racial integration, but of a pluralistic sort. That is, they want an 

end to segregation -- policies that perpetuate a racial and ethnic hierarchy. But their ideal is 

not the eradication of all group differences – an end to any sense of group distinctiveness, 

group loyalties, and cultural pride. 

Thus, they have no problem when Latinos choose to cluster in certain residential areas; they 

enjoy Korean and Indian restaurants that enrich the American palate, and they celebrate the 

electrifying beauty of the Tango and that of jazz, one of the great contributions of African 

Americans to American culture. But they also believe that the assertion of group 

distinctiveness in a pluralistic society has its limits. There are contexts – some workplaces 

among them – in which employees free to speak Spanish (the most obvious example) hurts 

the business. That is, in some contexts, employees, when on the job, need to be (for want of a 

better description) just plain Americans. Individual self-expression cannot always be honored 

in the workplace. 

The language of Title VII stresses discrimination that deprives individuals of “employment 

opportunities.” I would confine its scope (with few exceptions) to circumstances in which 

anti-discrimination laws serve the function of ending status distinctions based on race and 

other ascribed characteristics. Their point should be to end patterns of domination and 

exclusion and to open doors without regard to race, ethnicity, and other group identities. 

Policies that prohibit behavior, when it is a matter of individual choice, are not 

discriminatory. They do not block opportunity. They insist only that employees comply with 

workplace rules – a decision in their hands. Those rules may reduce the comfort level of, say, 

Latinos on the job, or of women or men who are forced to conform to a dress code. But Title 

VII does not promise cultural comfort. 

If group members can voluntarily change their behavior by speaking English when they 

prefer Spanish, or can adopt a conventional hairstyle when they are happier with an “ethnic” 

one, they have not been denied opportunity within the meaning of civil rights statutes. 

Depending on the circumstances, they may suffer from offensive cultural intolerance, but that 

intolerance is not legally proscribed discrimination. 

Indeed, a ban on English-only policies has its potential downsides for Latino employees. 

Some may find the pervasive use of Spanish as coercive. Bilingual workers may feel pressure 

to identify themselves as part of the group more strongly than they would otherwise wish. 

Other employees will experience assimilationist pressures as coercive. Yet complex 

pluralistic societies demand a high degree of cultural assimilation. It is the glue that makes 

pluralism work. The alternative is separation, conflict, and cultural intolerance – precisely 

that which civil rights statutes are in part designed to prevent. 
English Only Policies in the Workplace 83

Striking the right balance between assimilation and expressions of cultural identity is not a 

goal that lends itself to clear-cut legal rules. Legal formulas are not necessarily the best way 

to organize a complex, diverse society. Not all desirable policies need be codified into law. 

To argue, as I have, for a limited reading of the protection that Title VII provides is not to 

suggest that employers themselves should not try to accommodate employees who see their 

native language as an important part of their cultural identity. I argue for a diversity of 

policies fashioned in a diversity of settings – fluid rules that address a changing workplace 

and a changing workforce. 

Dissent

Martin R. Castro, Roberta Achtenberg, Dina Titus 

Dissent Statement of Chairman110 Martin R. Castro, Commissioner Roberta Achtenberg and 

Commissioner Dina Titus 

“At a time when the national need dictates that we should be increasing the exposure of 

our citizens to other languages and cultures, that exposure is declining. Cultural isolation 

is a luxury the United States can no longer afford, but we are nevertheless, culturally 

isolated.” 

U.S. Senator Paul Simon111 

These words were written originally by Senator Simon in 1980, and are just as true now as 

they were then—indeed, even more so. We cannot view language in the parochial way we 

have in the past, especially when our global competitors have populations that are 

increasingly multi-lingual and multi-cultural. 

We also cannot view English-only rules in the workplace in isolation from national origin 

discrimination, from the broader issue of the need and desire of limited English proficient 

persons to learn English, from efforts by the local, state and federal governments to legislate 

language primacy, or from English-only as a reaction to immigration.112 As stated by Kerry 

O’Brien of CASA de Maryland, “There is no doubt that employers are using these policies to 

 

110 Martin R. Castro was designated Chairman by President Obama on March 9, 2011. On March 11, 2011, the 

President’s designation received a unanimous concurrence from the Commission’s members. 111 Simon, Senator Paul. The Tongue –Tied American—Confronting the Foreign Language Crisis. New York: 

Continuum, 1980, reprinted 1992, at 1-2. 112 See, Alex Johnson, Pro-English Measures Being Revived Across U.S., MSNBC, Jun. 15, 2009, available at 

www.msnbc.msn.com/id/31176525/ns/us_news-life/.. The agenda set forth by panelist K.C. McAlpin’s 

organization, ProEnglish, includes: (1) Adopting laws or constitutional amendments declaring English the 

official language of the United States, and of individual states; (2) Defending the right of individual states to 

make English the official language of government operations; (3) Ending bilingual education (e.g. foreign 

language immersion) programs in public schools; (4) Repealing federal mandates for the translation of 

government documents and voting ballots into languages other than English. Available at: 

http://proenglish.org/about-us/mission. 
84 Commissioner Statements 

enforce an anti-immigrant point of view, and therefore systematically violating the federal 

laws of the United States.”113

While we were not members of the Commission at the time of the briefing or of the vote on 

the Report, we feel that the importance of this issue requires that we comment on the Report, 

its conclusions, and on the substantive issue of English-only policies in the workplace. We 

wish to thank our Republican and Independent colleagues for supporting our wish to have 

this statement included in the Report. 

The narrow issue presented in the Report should be whether the Equal Employment 

Opportunity Commission’s (“EEOC”) Guideline on “Speak English Only Rules” is properly 

tailored to address discrimination in the workplace.114 We believe the EEOC Guideline is 

purposely crafted to address situations of discrimination, while at the same time allowing an 

employer to utilize tailored, rather than blanket, English in the workplace policies to address 

effective job performance, work-related communications with customers or other employees, 

cooperative work assignments, supervision and safety.115 Any concern raised by the proEnglish only witnesses would be adequately addressed by the Guideline. 

Is the English language at risk? 

We believe that the real underlying reasons for most of these English-only policies in the 

workplace are not the reasons indicated in the Findings, such as “protecting employees from 

ethnic slurs,” “supervising employees,” or “providing a friendly and courteous atmosphere 

for customers.” Rather, the real reason for these workplace rules is a false belief that the 

English language is under siege by more recent arrivals to this country who are not 

assimilating—and do not want to assimilate—and that English-only rules will force these 

persons to learn English. 

 

113 “English Only Policies in the Workplace” (“Report”), p. 44. 114 29 C.F.R. § 1606.7 (2010) (“Speak-English-only rules”) 

(a) When applied at all times. 

A rule requiring employees to speak only English at all times in the workplace is a burdensome term and 

condition of employment. The primary language of an individual is often an essential national origin 

characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or 

the language they speak most comfortably, disadvantages an individual’s employment opportunities on the 

basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on 

national origin which could result in a discriminatory working environment. Therefore, the Commission will 

presume that such a rule violates title VII and will closely scrutinize it. 

(b) When applied only at certain times. 

An employer may have a rule requiring that employees speak only in English at certain times where the 

employer can show that the rule is justified by business necessity. 

(c) Notice of the rule. 

It is common for individuals whose primary language is not English to inadvertently change from speaking 

English to speaking their primary language. Therefore, if an employer believes it has a business necessity for 

a speak-English-only rule at certain times, the employer should inform its employees of the general 

circumstances when speaking only in English is required and of the consequences of violating the rule. If an 

employer fails to effectively notify its employees of the rule and makes an adverse employment decision 

against an individual based on a violation of the rule, the Commission will consider the employer’s 

application of the rule as evidence of discrimination on the basis of national origin. 115 Briefing Transcript (Dec. 12, 2008), p. 20-1 (Reed Russell speaking). 
English Only Policies in the Workplace 85

According to the U.S. Census Bureau, more than 95% of the population five-years of age or 

older speaks English at least “well,” with more than 91% of the population speaking it “very 

well.” 116 This should be no surprise, as few immigrants who come to this country could fail 

to appreciate the value of learning English. Latinos, for example. overwhelmingly want to 

learn English.117 According to the Pew Hispanic Center, 92% of Latinos believe “it is very 

important that English be taught to children of immigrant families.”118

Unfortunately, these unfounded fears are not new to our country. We have a long history of 

English-only reactions to past waves of newcomers,119 However, each succeeding 

generation of immigrants not only integrates into society and masters English, but the 

primacy of English remains intact. The same is the case now. Today’s immigrants are 

learning English as quickly, if not more so, than past 120 generations. 

 

There is a relationship between National Origin Discrimination and Language Use 

The Report largely treats national origin discrimination as an afterthought. This is captured 

perfectly in the Executive Summary which simply deems English-only policies as 

“attempt[s] to supervise ... bilingual employees”121 and then proceeds to lay out a series of 

rhetorical questions asking what policies are permissible for the EEOC and employers, and 

what the side effects of these policies could be.122 Lost from the discussion is a serious 

116 "Language Use in the United States: 2007," American Community Survey Reports (Apr. 2010), available at: 

www.census.gov/hhes/socdemo/language/data/acs/ACS-12.pdf. 117 According to “Language Rights: An Integration Agenda for Immigrant Communities,” a briefing book coauthored by the Mexican American Legal Defense and Educational Fund and the Asian American Justice 

Center, the largest non-English language group in the U.S. is Spanish-speakers. Language Rights: An 

Integration Agenda for Immigrant Communities,” (June, 2008), p. 5, available at: 

http://www.maldef.org/resources/publications/language_rights_briefing_book_June%202008.pdf. 118 “Hispanic Attitudes Toward Learning English,” Pew Hispanic Center, Fact Sheet, June 7, 2006, available 

at: http://pewhispanic.org/files/factsheets/20.pdf. 

119 For instance, in the late 19th and early 20th Century—well-before U.S. entry into the First World War—there 

was pervasive anti-German sentiment in parts of the United States. The state of Wisconsin, went so far as to 

enact legislation mandating that all schools in the state, including parochial schools, conduct their classes 

only in English. “Americanization and the Bennett Law,” Wisconsin Historical Society, available at: 

http://www.wisconsinhistory.org/turningpoints/tp-031/?action=more_essay. 120 “The very high immigration level of the 1990s does not appear to have weakened the forces of linguistic 

assimilation. Mexicans, by far the largest immigrant group, provide a compelling example. In 1990, 64 

percent of third-generation Mexican-American children spoke only English at home; in 2000, the equivalent 

figure had risen to 71 percent.” Richard Alba, Language Assimilation Today: Bilingualism Persists More 

Than in the Past, But English Still Dominates, (Dec. 2004), p. 1, available at: 

mumford.albany.edu/children/reports/language_assimilation/language_assimilation_brief.pdf. Despite the 

interest amongst immigrants to learn English, one factor that may be slowing the rate of language acquisition 

among present-day immigrants is a lack of supply of English-as-Second-Language (“ESL”) programs. 

Despite the increases in the immigrant population in recent decades, there have been reductions in the funding 

and availability of these programs. As a result, ESL supply has not only failed to keep up with increased 

demand, but has been moving in the opposite direction. See, Dowell Myers & John Pitkin, Assimilation 

Today, (Center for American Progress, Sept. 2010), p. 21, available at: 

www.americanprogress.org/issues/2010/09/pdf/immigrant_assimilation.pdf 121 Report, p. 1. 122 Id., p. 2. 
86 Commissioner Statements 

acknowledgment that discrimination on the basis of national origin is a real and continuing 

problem.123

 

In Lau v. Nichols the U.S. Supreme Court made clear that, for purposes of enforcing the Civil 

Rights Act of 1964 (“CRA”), language and national origin are interrelated.124 The Court 

held that Chinese-speaking students “receive fewer benefits than the English-speaking 

majority from [their] school system which denies them a meaningful opportunity to 

participate in the educational program” and that this denial of opportunity was prohibited b

Title VI of the CRA.

y 

ent 

that such 

 

125 This interpretation of Title VI had been advanced by the Departm

of Health Education and Welfare (“HEW”). Additionally, HEW took the position 

“discrimination is barred which has that effect even though no purposeful design is present.” 

The Nichols Court also accepted this discriminatory effect, rather than discriminatory intent 

standard.126 

In 2000, President Clinton issued Executive Order No. 13166, which reaffirmed the 

Executive Branch’s commitment to addressing policies with discriminatory impacts. 

Executive Order 13166 also reaffirmed the Executive Branch’s understanding that there 

exists a strong connection between language use and national origin, in the context of 

enforcing prohibitions on national origin discrimination.127 In the wake of Alexander v. 

Sandoval,

128 there was some thought that the then-recently inaugurated Bush Administration 

might abandon the use of indirect enforcement modalities such as Executive Order 13166 

and the EEOC’s English-only Guideline. The Bush Administration however, ultimately did 

not seek to challenge Executive Order 13166 or the Lau v. Nichols precedent, but instead 

reiterated the government’s support for the use of indirect methods of civil rights 

enforcement.129 The Obama Administration recently reaffirmed the mandate of Executive 

Order 13166.130

Deficiencies in the Briefing, the Report and its Findings and Recommendations 

We believe that the briefing relied on a set of witnesses that were not able to provide a 

sufficiently diverse and thorough treatment of the briefing’s topic. Two of the English-only 

supporters, Mr. Riordan and Mr. Kidman, were on the defendants’ side of employment 

123 Statistical data regarding national origin discrimination charges can be found on the EEOC’s website here: 

http://www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm. 124 414 U.S. 563 (1974). 125 Id. at 568. 126 Id. 127 Text of the Executive Order available at: http://www.justice.gov/crt/about/cor/Pubs/eolep.pdf 128 532 U.S. 275 (2001) (Denied the right of private action for discrimination suits brought under Title VI on a 

disparate impact basis). 

129 See, Memorandum from Assistant Attorney General Ralph Boyd (Oct. 26, 2001) (Discussing the 

Administrations support for Executive Order 13166), available at: 

www.justice.gov/crt/about/cor/lep/Oct26memorandum.pdf. Linda Chavez’s written statement also makes 

reference to a letter that her organization prepared which criticized the Bush Administration for its support of 

disparate impact enforcement. See Letter to Merrily Friedlander from Edward Blum & Roger Clegg, (Feb. 14, 

2002), available at: www.ceousa.org/content/view/338/96/. 130 Memorandum from the Attorney General (Feb. 17, 2011), available at: 

www.lep.gov/13166/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf 
English Only Policies in the Workplace 87

lawsuits and a third, Mr. McAlpin, was also involved with Mr. Kidman’s lawsuit. As a 

result, the Commission received rather anecdotal accounts of two lawsuits presented by 

highly interested parties. Were these accounts just a small part of the record upon which the 

Report is based, this might not be a problem. Unfortunately the Commission did not gather 

fuller and broader accounts of English-only litigation issues—and then went on to approve a 

Report that rests on such an inadequate record. We believe that Commission investigations 

can be enriched by hearing from those on the defendants’ side of lawsuits, but this must be 

just one perspective among many that the Commission needs to include in order to get a 

well-rounded account of an issue. The fact that the Commission invited such a narrow and 

overlapping set of English-only proponents probably struck the groups who declined to 

participate as indicative of a lack of interest on the part of the Commission to adequately 

cover the serious issue of national origin discrimination.131

Finding #1 notes that Title VII prohibits certain forms of discriminatory practice by 

employers, but that the statute was not meant to otherwise infringe on the creation of 

workplace rules. The EEOC Guideline, however, recognizes both the need to prohibit 

employers from engaging in discriminatory practices as well as the right of employers to 

establish non-discriminatory workplace practices. The fact that the Guideline expresses these 

dual interests is not mentioned in this finding. 

Finding #2 inaccurately characterizes the legal status of the EEOC’s Guidelines. By implying 

that the Guidelines only have a de facto effect and only in the absence of litigation, the 

Finding suggests that the Guidelines do not carry any weight in a court of law. This is simply 

not the case.132

Finding #3 ignores the testimony of Reed Russell, leaving the impression that the EEOC is 

singling out the English language. Mr. Russell, however, testified that the legal reasoning 

behind the EEOC Guideline is equally applicable to any other “[fill in the blank]-only” 

language policies that have a discriminatory effect.133 In light of Mr. Russell’s explicit 

rejection of the premise underlying this Finding, we do not think that this Finding is 

supported by the record established at the briefing. 

Finding #4 notes that courts are divided over the EEOC’s English-only Guideline. We 

believe it is worth noting that this Finding accurately notes that there are only a few cases 

 

131 As noted in the report, the Commission sent invitations to: Kerry O’Brien, Senior Manager for the Legal 

Program of CASA de Maryland; Laura Brown, attorney, D.C. Employment Justice Center; the Mexican 

American Legal Defense Fund; the Asian American Legal Defense and Education Fund; the League of 

United Latin American Citizens; the Lawyers Committee for Civil Rights under Law; National Council of La 

Raza; the ACLU Immigrants Rights Project; and the Institute of Politics at Harvard University’s John F. 

Kennedy School of Government. Report, p. 2 n3. 132 “In evaluating this contention it should first be noted that Congress, in enacting Title VII, did not confer 

upon the EEOC authority to promulgate rules or regulations pursuant to that Title. This does not mean that 

EEOC guidelines are not entitled to consideration in determining legislative intent. But it does mean that 

courts properly may accord less weight to such guidelines than to administrative regulations which Congress 

has declared shall have the force of law or to regulations which under the enabling statute may themselves 

supply the basis for imposition of liability.” General Electric v. Gilbert, 429 U.S. 125, 141 (1976) (Citations 

omitted). 133 Briefing Transcript (Dec. 12, 2008), p. 97. 
88 Commissioner Statements 

that directly address and challenge the EEOC’s Guideline. By contrast, Mr. McAlpin claimed 

that in more than 20 cases, courts rejected the EEOC Guideline.134 An examination of the 

cases listed by Mr. McAlpin quickly reveals that most have little or nothing to do with the 

EEOC Guideline or they are consistent with the Guideline’s acceptance of limited Englishonly or language proficiency requirements.135

Finding #5 is problematic in several ways. First, the Finding promotes as “good reasons” to 

adopt English-only policies: “the need to provide customers and other employees with a 

friendly and courteous atmosphere in which they need not worry about the possibility that 

they are being spoken of in a discourteous manner.” In essence, this putative “good reason” 

opens the door for employers to discriminate against people on the basis of alleged customer 

or employee discomfort with people of particular national origins. Second, the Finding 

asserts without any substantiation that a “significant number” of employers have valid need 

for English-only rules and that the EEOC Guideline chills their adoption of these rules. No 

 

134 Report, p. 23, 28-30. 135 Many of the cases cited by Mr. McAlpin make the point that language use is not synonymous with national 

origin. This is true, but also beside the point. As mentioned above, in Lau v. Nichols, the Supreme Court held 

that language was closely related to national origin. As a result, policies and practices that had a 

discriminatory effect on people because of their language use could run afoul of the CRA’s prohibition of 

discrimination on the basis of national origin. The cases in Mr. McAlpin’s list which note that language use 

and national origin are not interchangeable are: Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980); Pemberthy v. 

Beyer, 19 F.3d 857 (3d Cir. 1994); Velasquez v. Goldwater Mem'l Hosp., 88 F.Supp.2d 257 (S.D.N.Y.2000); 

E.E.O.C. v. Beauty Enterprises, Inc., 361 F.Supp.2d 11 (D.Conn. 2005); Napreljac v. John Q. Hammons 

Hotels, Inc, 461 F.Supp.2d 981 (S.D. Iowa, 2006) [Napreljac is also a language proficiency case]; Brewster 

v. City of Poughkeepsie, 447 F.Supp.2d 342 (S.D.N.Y., 2006). 

 Another set of cases on his list are language proficiency cases. As long as it is an actual business necessity 

(i.e. not a pretext), employers can require that their employees have a certain level of language proficiency. 

Such a requirement could have a (permissible) disparate impact on would-be employees—including nativeborn English-speakers in instances where the language required is something other than English. The cases on 

his list that make this point are: Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5th Cir. 1981); 

Hannoon v. Fawn Eng’g Corp., 324 F.3d 1041, (8th Cir. 2003); Dalmau v. Vicao Aerea Rio-Grandense, S.A.,

337 F.Supp.2d 1299 (S.D.Fla.,2004); Tippie v. Spacelabs Medical, Inc., 180 Fed.Appx. 51, 2006 WL 

1130809, 98 Fair Empl.Prac.Cas. (BNA) 320, C.A.11 (Fla.), April 27, 2006 (No. 05-14384); Napreljac v. 

John Q. Hammons Hotels, Inc, 461 F.Supp.2d 981 (S.D. Iowa, 2006) [This case is also a language/nation 

origin equivalency case]. 

Other cases cited by Mr. McAlpin feature limited English-only policies which, depending on the 

circumstances, can comport with the EEOC Guideline. Those cases are: Olivarez v. Centura Health Corp.,

203 F.Supp.2d 1218 (D.Colo.2002); Cosme v. Salvation Army, 284 F.Supp.2d 229, (D.Mass.2003); EEOC v. 

Sephora, 419 F. Supp. 2d 408, 416, 417 (S.D.N.Y. 2005). Additionally, a couple other cases merely restate 

the EEOC Guideline without rejecting it: Barber v. Lovelace Sandia Health Systems, 409 F.Supp.2d 1313 

(D.N.M., 2005); EEOC v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911 (N.D. Ill., 1999). 

Additionally, Mr. McAlpin’s list features a New Jersey state court opinion interpreting state law, not the 

EEOC Guideline: Rosario v. Cacace and Desantis, 337 N.J. Super. 578 (App.Div., 2001); a Title VI case 

dealing with government documents printed in English: Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 

1983); and a case that distinguishes a person’s citizenship from his or her national origin, allowing certain 

preferences to be given to people with U.S. citizenship: Espinoza v. Farah Mfg Co., 414 U.S. 86 (1973). 

 

In the end, only three of Mr. McAlpin’s “more than twenty” cases—the three cases noted in Finding #4—are 

on point and in conflict with the EEOC Guideline. 
English Only Policies in the Workplace 89

recognition is given to the discriminatory impact these rules might have or to the possibility 

that pretextual use of these “good reasons” could lead to employee discrimination. The 

EEOC Guideline is well-tailored to address those instances where English-only workplace 

policies are needed, while also making clear that English-only policies can have a 

discriminatory intent or effect and, therefore, must be implemented only when needed. 

Finding #6 makes the unsubstantiated assertion that English-only policies are rarely adopted 

for the purposes of “harassing, embarrassing, or excluding” people. Nothing is cited to support 

this claim. Based on this Finding and the others before it, all an employer would need to do to 

create a safe harbor would be to claim that he or she was merely adopting a policy in order to 

provide a “friendly atmosphere.” Such a situation would greatly undermine civil rights 

enforcement. 

Recommendations #1 and #2 display either a lack of understanding of, or indifference to, the 

continuing presence of discrimination in our society, and to the practical challenges of rooting 

out discriminatory conduct and policies. The EEOC Guideline is cognizant of the fact that gross 

and overt discrimination has diminished, but that subtle and covert discriminatory practices 

continue. The Guideline is consistent with other practical, indirect methods adopted by the 

government and accepted by the courts in order to eliminate persistent or evolving instances of 

discrimination.136 The close relation between the language a person speaks and his or her nation 

of origin is recognized both by common sense and by the law.137 At the same time, language 

use is not identical with national origin, and as a result there are circumstances in which it can

be subject to prohibition in a manner in which a person’s national origin may not. Section 

1606.7 embodies these reasonable distinctions, and so we believe that the EEOC should, 

therefore, continue to maintain the Guideline. 

 

In addition, we do not support the recommendation that Congress should narrow in any way the 

scope of Title VII of the Civil Rights Act of 1964. Were Congress to limit Title VII as suggested 

in Recommendation #2, it could engender substantial amounts of discrimination on the basis of 

national origin, whether inadvertently or by resort to pretext. 

Constructive Recommendations 

Rather than allowing for employers to have the unfettered ability to enact potentially 

discriminatory work-place rules, we should examine other methods to address the real or 

perceived concerns raised by the proponents of English-only rules. As mentioned above, the 

concerns of English-only proponents extend beyond that of ensuring safe and productive 

workplaces.138 For instance, we should work together to provide constructive and accessible 

methods by which persons can learn English, quickly, effectively and proficiently. We need to 

increase, not reduce, the resources that provide English acquisition programs to students in our 

elementary and secondary schools, as well as to adult learners. We should identify, disseminate 

and fund best practices in English acquisition that may exist for teaching English. We should 

136 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Establishing the use of disparate impact analysis 

for Title VII cases). 137 Lau v. Nichols, supra Note 13. 138 Concerns already addressed by the balanced approach taken by the EEOC Guideline. 
90 Commissioner Statements 

enact legislation which would support the learning of English for all ages and groups, and assist 

local communities to better integrate new immigrants.139 We also agree with Linda Chavez that 

there should be tax incentives for employers who offer English acquisition programs for their 

employees.140 

The above steps would do more to address the concerns raised in the Report, while not having 

the discriminatory impact that the Report’s Recommendations would cause. 

Commissioner Statement-Rebuttals

Todd Gaziano 

Statement of Commissioner Todd Gaziano 

Language discrimination, as such, is not prohibited by Title VII of the Civil Rights Act of 

1964 or any other federal employment statute. English-language policies violate Title VII 

only if they are used to discriminate against employees born in, or with ancestors from, 

countries where English isn’t commonly spoken. But English-only rules would be a very 

crude method of national origin discrimination in the workforce for the obvious reason that 

many (if not most) people who move to America and can lawfully work here do speak 

English and few native-born Americans, regardless of their national origin, have difficulty 

speaking English by the time they enter the workforce. 

Because there are many legitimate, non-discriminatory reasons why an employer might 

institute an English-only policy, including for safety and customer relations reasons and to 

prevent unlawful hostile environment discrimination, there is no reason to presume such 

policies are adopted to discriminate against employees with particular national origins. Yet 

the EEOC does presume that all such policies are unlawful.141 Based on its unjustified 

presumption of discrimination, the EEOC requires all employers with such a policy to satisfy 

an arduous “business necessity” test that it stands in judgment of and very few can pass—

unless employers are willing to litigate for years and pay enormous litigation costs. 

 

139 Such legislation could be modeled on the “Strengthening Communities through English and Integration Act of 

2008.” 140 Report, p. 37. 141 The dissent relies on the unsupported assertion of Kerry O’Brien of CASA de Maryland that “There is no 

doubt that employers are using these [English-only] policies to enforce an anti-immigrant point of view, and 

therefore systematically violating the federal laws of the United States.” Neither Ms. O’Brien nor the dissent 

cite any evidence in support of this assertion. Conversely, there is overwhelming evidence that American 

employers understand the great economic benefits from hiring immigrants. The counterfactual assertion of 

hostility to immigrants also ignores the reasonable, non-discriminatory reasons that employers have for Englishonly rules, such as to prevent harassing speech in a language the supervisor cannot understand. Finally, the case 

described by Mr. Kidman in which native-born employees were insulting each other in the Navajo language had 

nothing to do with immigration or immigrants, and yet the EEOC handled it no differently than cases involving 

foreign-born workers. 
English Only Policies in the Workplace 91

EEOC’s presumption of discrimination finds no support in the text or legislative history of 

Title VII and has been rejected by many courts. Such a presumption is an unauthorized 

attempt to shift the burden of proof to the employer to prove that its policy satisfies a 

“business necessity” without any prior showing of a discriminatory purpose or effect. 

The clearest example of the EEOC’s unreasonable and illogical presumption is the even 

stronger presumption of discrimination it accords to employer policies requiring employees 

to speak English at all times in the workplace. See EEOC Guidelines, 29 C.F.R. § 1606.7(a). 

It states without exception that such a policy “is a burdensome term and condition of 

employment.” In support of this Guideline, the EEOC General Counsel argued at the 

Commission briefing that employers have no possible justification to require employees to 

speak English when they are on break in the company break or lunch room. But that 

argument is erroneous for reasons that should be quite clear to the EEOC. 

An important non-discriminatory reason for employers to adopt an English-only policy is to 

prevent various types of prohibited harassment in the workplace. As the Commission found, 

such a policy may be necessary to protect employees from having to “worry about the 

possibility that they are being spoken of in a discourteous manner,” which could include 

sexual and racial harassment that create a hostile work environment.142 Once an employer is 

on notice of such harassing language in its workplace, even if it does not involve supervisory 

employees, further inappropriate racial taunting or sexual harassment not only undermines 

workplace productivity but may also subject the employer to liability under Title VII. See

Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) (employer may be liable for 

harassment by co-workers where supervisor knew of the harassment and did nothing) (citing 

Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (8th Cir. 1988)). 

In such a situation, there is no liability-free area of the employer’s facility where sexually- or 

racially-harassing comments can be uttered without consequence. Would-be sexual or racial 

harassers may be more likely to use the break room for this purpose than their work stations. 

Because supervisors and other witnesses are more likely to detect harassment and to 

discourage speech that creates a hostile environment, it may be appropriate or even necessary 

 

142 No one denies that language may be related to national origin and that a case might exist in which language 

is used as a means of national origin discrimination. See Lau v. Nichols, 414 U.S. 563 (1974) (school district not 

providing supplemental English language instruction to students of Chinese ancestry who do not speak English 

discriminated against students on the basis of their national origin and therefore violated Title VI of the Civil 

Rights Act of 1964). In his concurrence in Lau, however, Justice Blackmun cautioned “[a]gainst the possibility 

that the Court’s judgment may be interpreted too broadly,” arguing that the holding was limited to the narrow 

facts of the case and might not apply to subsequent public education cases. Id. at 571-72 (Blackmun, J., 

concurring). Lau should carry even less weight in the employment context. Yet the EEOC wrongly presumes 

that every employer who institutes an English-only rule discriminates on the basis of national origin. Most 

reported cases involving English-only rules concern employers who already have hired many employees who 

speak a language in addition to English. These employers would be among the least likely to harbor 

discriminatory sentiments. Moreover, if employers are not permitted to have English-only rules when a nondiscriminatory reason presents itself, they may be less inclined to hire multilingual speakers, as Commissioner 

Heriot points out in her accompanying statement. Employers who need to monitor what their employees are 

saying, as the EEOC requires in some situations, would be more inclined to hire workers who only speak 

English. 
92 Commissioner Statements 

for an employer to institute an English-only policy throughout its workplace. Indeed, two of 

the Commission witnesses testified that complaints about harassing speech were the reason 

for their English-only policies. See Statement of Timothy J. Riordan; Statement of Richard 

Kidman. Mr. Kidman described a situation in which restaurant staff were insulting other 

employees in Navajo, which supervisors did not understand. There was no reason in that 

case for the employer to think his native-born Navajo employees were not equally fluent in 

English or that its new rule would cause hardship for its Navajo staff. 

When that and similar examples were posed to EEOC’s General Counsel, he refused to back 

down from his break-room myopia or acknowledge the difficult position faced by employers. 

Instead, he responded that an employer might videotape the conversations in the break room 

to detect possibly harassing speech. An employer whose employees take breaks throughout 

the day would need to place mikes in various locations throughout the break room, with 

separate sound equipment for each mike, to capture every conversation. The employer also 

might need a dedicated team of simultaneous translators, conversant in various languages, to 

report any harassing speech before it created liability for the company. Perhaps the United 

Nations can afford that set-up, but few employers who produce anything can. Yet, this is the 

solution EEOC advances to defend its position. 

The good news is that since 1993 most courts have rejected the EEOC’s Guidelines. The bad 

news is that some courts still follow them, and the time and cost of litigating against the 

EEOC prohibit many employers from being able to afford their day in court. The EEOC 

should abandon the wrong-headed presumptions in its Guidelines and, and as the 

Commission recommended, “withdraw section 16.07” and instead inform employers and 

employees that “English-only policies are prohibited only when it can be shown by a 

preponderance of evidence that the policy was adopted for the purpose of harassing, 

embarrassing, or excluding employees or applicants for employment on account of their 

national origin.” Congress should also enact legislation explicitly rejecting the EEOC 

Guidelines and creating safe harbors for appropriate English-language policies in the 

workplace. 

Gail Heriot 

STATEMENT OF COMMISSIONER GAIL HERIOT 

The passage of Title VII of the Civil Rights Act of 1964 was historic. But it was not 

intended to assert federal control over every aspect of the workplace. Its carefully limited 

purpose was to prohibit employment discrimination based on race, sex, color, religion and 

national origin. As Representative William M. McCulloch and his co-authors put it: 

“[M]anagement prerogatives and union freedoms are to be left 

undisturbed to the greatest extent possible. Internal affairs of 

employers and labor organizations must not be interfered with 
English Only Policies in the Workplace 93

except to the limited extent that correction is required in 

discrimination practices.”143

At the time, this was likely seen as an obvious point. But it was not unimportant. Free 

enterprise has always been the engine that drives the nation’s prosperity. For that and other 

reasons, the best way for the federal government to promote the general welfare, including 

the welfare of women and minorities, has usually been to allow individuals the freedom to 

run their own business affairs when acting in a peaceable and honest manner. When 

exceptions like Title VII become necessary, they should be understood as precisely that: 

Exceptions. They must not be allowed to swallow the rule. 

Somewhere along the line, however, this obvious, but important point seems to have been 

lost. Bit by bit, Title VII has been expanding to encompass practices that it was not originally 

intended to cover and that as a matter of sound policy it should not have been permitted to 

cover.

144 The subject of this briefing report is just one example: Under current EEOC 

 

143 Statement of William M. McCulloch, H.R. Rep. No. 914, 88 Cong., 2d Sess (1964). McCulloch was the 

ranking member of the House Judiciary Committee and was considered by many on both sides of the aisle to 

have been indispensable in drafting and securing the passage of the Act. See J.Y. Smith, Former Rep. William 

McCulloch Dies, The Washington Post (February 23, 1980). Indeed the Post obituary states that he has been 

called “the patron saint of civil rights legislation.” See also Richard Lyons, “Mr. Civil Rights” Recalls Hard 

Grueling Fight, The Washington Post (October 26, 1972)(referring to McCulloch as “Mr. Civil Rights”). 

144 Part of the explanation for Title VII’s expansion lies with amendments to the original law. For 

example, as a result of the Civil Rights Act of 1991, 42 U.S.C. 1981a, lawsuits over comparatively minor issues 

have become more financially lucrative than they had been before. Not surprisingly, this has meant that many 

more such cases are brought or credibly threatened. At first blush, this may seem to some like a good thing. 

Title VII is all about eliminating discrimination, and stronger penalties would presumably advance that goal. 

But life is full of trade-offs, and it is impossible to eradicate all the vestiges of any kind of wrong without 

creating other equally serious wrongs. A sense of proportion is necessary. When employers feel that every 

decision they make could potentially give rise to a lawsuit by a disaffected employee, relationships between 

employers and employees and among employees are bound to be profoundly altered. A great deal of legitimate, 

non-discriminatory conduct that the employer fears will be mistaken for discriminatory conduct will also be 

chilled. And a more bureaucratized, regimented and inflexible workplace culture will be created. Such costs 

must always be measured against whatever gains the higher penalties might create.

The reasons for the change in monetary incentives to litigation are complex and (surprisingly to some) rooted in 

the medieval practices of English courts. 

At the time of the passage of the Civil Rights Act of 1964, it was assumed that juries would be unsympathetic to 

the plight of discrimination victims—not just in the American South where the problem of discrimination was 

greatest, but elsewhere too. This presented a serious challenge, since the Seventh Amendment of the U.S. 

Constitution guarantees civil litigants, including defendants, the right to a jury trial in federal lawsuits arising at 

common law. If defendants had a right to a jury trial in Title VII cases, Title VII could become a dead letter—

or at least so many people thought. See U.S. Const. amend. VII (“In Suits at common law, where the value in 

controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury 

shall be otherwise re-examined in any Court of the United States, than according to the rules of the common 

law”). 

But the Seventh Amendment does not apply to all lawsuits. It applies only to “Suits at common law”--that is, 

lawsuits that historically would have been brought in common law courts (as opposed to the courts of equity). 
94 Commissioner Statements 

 Congress could ensure that juries would play no role in the enforcement of Title VII by fashioning Title VII 

lawsuits in such a way that they would be regarded as cases in equity and not as actions at common law. 

The key was in the remedies Congress provided. For the most part, lawsuits brought for money damages are 

regarded as “Suits at common law.” By contrast, lawsuits that ask for injunctive relief are ordinarily regarded 

as cases in equity. Congress was thus careful to limit the remedies for Title VII actions to injunctions (with 

back pay considered a special kind of contractual specific performance and hence a species of injunction). As a 

result, Title VII did not give rise to a right of jury trial. If Congress had provided for money damages intended 

to compensate the victim for the consequences of the defendant’s discriminatory conduct (such as emotional 

suffering or loss of credit rating) serious Seventh Amendment concerns would have been raised. 

For race (but not for sex, color, religion or national origin), change began a few years later when previously 

seldom-invoked Reconstruction Era laws, Sections 1981 and 1982, were interpreted to outlaw private racial 

discrimination. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)(Section 1982); Runyon v. McCrary, 427 

U.S. 160 (1976)(Section 1981). These statutes allowed for broad compensatory damages that are characteristic 

of actions at common law and hence gave rise to a right of jury trial. But a plaintiff was under no obligation to 

bring a cause of action under one of them if he or she was concerned that a jury trial might not be in his or her 

interest. He or she could choose to sue under Title VII only. 

Jones and Runyon were both extremely controversial interpretations of Section 1981 and 1982. See Gerhard 

Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89 (1968)(concluding that 

Jones was wrongly decided); Charles Fairman, History of the Supreme Court of the United States: 

Reconstruction and Reunion, 1864-88, Part One 1117-1260 (1971)(concluding that the Supreme Court 

seriously misread the legislative history in Jones); George Rutherglen, The Improbable History of Section 1981: 

Clio Still Bemused and Confused, 2003 Sup. Ct. Rev. 303 (2003). See also Ben Gilbert, Ten Blocks from the 

White House: Anatomy of the Washington Riots of 1968 (1968)(recounting historical events thought by some 

to have influenced the Jones decision). 

Whether or not the Jones and Runyon decisions correctly construed legislative intent, their approach was largely 

codified as to Section 1981 by the Civil Rights Act of 1991. Also by 1991, the concern that juries would be 

unsympathetic to victims of discrimination had faded considerably. Indeed, some thought that juries would be 

more sympathetic than judges. The law was thus changed to allow for jury trials under Title VII and also to 

allow for the kinds of compensatory damages traditionally recoverable only in “Suits at common law.” This 

applied not just to race but also to sex, color, religion and national origin. Little public attention was focused on 

the dynamic such changes would create, especially in areas like harassment law. Under the original 1964-

version of Title VII, it was ordinarily not in the employee’s interest to undertake a lawsuit unless either back 

pay was at issue or the plaintiff considered the problems associated with the workplace environment serious 

enough to go to the trouble of obtaining an injunction to change them. Back pay, of course, is at issue only in 

cases in which (1) the plaintiff was not hired, not given a promotion or raise in pay, or fired and (2) the plaintiff 

was unable to secure an equally well-paying position elsewhere in a short period of time. 

Under the new provision, an employee is more likely to bring an action where issues of pay are not involved. 

For example, there has been a marked increase in the number of complaints based on a theory of sexual 

harassment in which the plaintiff employee never left her job or obtained another job at equal or greater pay. 

Lawsuits involving employer-imposed rules that employees regard as nuisances would fall into this category. 

One interesting aspect of all this is that penalties for employment discrimination were increasing at the same 

time that (and indeed because) perceptions were changing about the likelihood that juries would be sympathetic 

to discrimination victims. Put differently, the increase in penalties was coming at the same time that the 

average American (and hence presumably the average employer) was apparently becoming less likely to engage 

in discriminatory behavior against women and minorities. 
English Only Policies in the Workplace 95

guidelines, employers can be made strangers in their own workplace—forbidden to require 

their employees to speak in a language they themselves can understand. My fellow 

commissioners and I believed this to be agency overreach. 

Since the Commission’s approval of the report, three new appointees have been added to the 

Commission, and these three commissioners have submitted a joint dissenting statement.145 

In defending the EEOC policy, their statement begins with a quote by the late Senator Paul 

Simon in which he generally advocates an increase in the study of foreign languages by 

American school children. (Draft Dissent at 1.) For what it is worth, I am inclined to agree 

with Senator Simon. It would be nice if more American school children learned to be fluent 

in a foreign language. It might even help our country compete in the global marketplace, as 

the dissenting commissioners claim in their first paragraph. But, at best, Senator Simon’s 

remark is tangentially related to the issue in this report. 

The real issue at the heart of this report is: Who gets to decide whether there will be a 

uniform language spoken at a particular workplace? Anyone can see that whether to have a 

uniform language can be a genuine dilemma. On the one hand, there may be reasons that it is 

more convenient, efficient and conducive to workplace harmony if different languages can be 

spoken. Some employees may be more comfortable in a language other than English and in 

some cases it may promote safety and quality if employees can converse in the language they 

know best. On the other hand, there may be reasons that it is more convenient, efficient and 

conducive to workplace harmony for only one language to be spoken. In some workplaces, 

safety and quality issues may require that everyone understand what everyone else is saying 

at all times. In others, it may be important that employees be closely supervised, and that 

means they will need to speak a language the supervisor understands too. In still others, 

employees and customers may be particularly sensitive to feelings of exclusion if they cannot 

understand what is being said around them. 

Every workplace is different. Whose role will it be to balance the relevant considerations?

146 Will it be the employer, in negotiation with employees and applicable unions, deciding 

what works best at a particular workplace? Or will the decision go to distant regulators 

deciding for us 147 all? 

 

145 Chairman Martin Castro and Commissioners Roberta Achtenberg and Dina Titus replace Chairman Gerald 

Reynolds and Commissioners Ashley Taylor, Jr. and Arlan Melendez respectively. It has been the 

Commission’s practice that former members do not file statements. Consequently neither Reynolds, Taylor nor 

Melendez has done so. Pursuant to the Commission’s rules, I received a copy of the dissenting commissioners’ 

statement in draft form. All my references to the statement are to that draft. 146 Ordinary Americans explicitly acknowledge the need for employer discretion in this area. When asked by 

Rasmussen Reports whether employers should be permitted to require its employers to speak “English only” 

while on the job, 77% of Americans responded that they should, while only 14% said they should not and 9% 

were unsure. See Poll: Most Americans Support English-Only in the Workplace (November 27, 2007). 

147 The dissenting commissioners cite Wisconsin’s century-old legislation requiring parochial schools to 

conduct classes only in English to bolster their argument in favor of the EEOC’s policy. I certainly agree that 

Wisconsin’s law was an abuse, but I draw a very different lesson for it than do the dissenting commissioners. 

Wisconsin was wrong to dictate to parochial schools the language they must conduct classes in. If parochial 

school students preferred to conduct classes in English or Latin, they should certainly be free to negotiate for 

those languages, but ultimately it is the parochial schools themselves that must make the call. If they choose 
96 Commissioner Statements 

Congress has prohibited employment discrimination on the basis of national origin. So when 

employers require their employees to speak English for the purpose of harassing, 

embarrassing or excluding employees or applicants for employment on account of their 

national origin, the EEOC should intervene.148 But the EEOC has no authority to prohibit 

English only rules in order to promote Senator Simon’s vision of multilingualism or to 

promote the dissenting commissioners’ vision of global competitiveness. It is simply not up 

to them. And it is strange that the dissenting commissioners would offer these reasons as 

their very first defense of the EEOC policy.149 

 German, so be it. Similarly, the EEOC is wrong to dictate to private employers that they must conduct a 

multilingual business. If employees wish to negotiate with their employers over this, again, hey should be free 

to do so. But ultimately it is the employers that should be making the call, subject to the knowledge that if their 

employees are displeased, they may lose those employees. 

148 The dissenting commissioners cite Lau v. Nichols, 414 U.S. 563 (1974), for the proposition that “language 

and national origin are interrelated.” I readily concede the point, just as I hope that the dissenting 

commissioners will readily concede that they are not the same thing (as several courts much more directly on 

point to the issue before the Commission than Lau have held). In Lau, which was decided under Title VI rather 

than Title VII, the San Francisco Unified School District had failed to provide any language-appropriate 

instruction for about 1800 students of Chinese ancestry who did not speak English and were thus effectively not 

being educated at all. The Court held this to be a violation of Title VI. This is rather far removed from EEOC’s 

policy on English only rules. Although the Court found it unnecessary to rule on the Fourteenth Amendment 

claim in Lau, on the facts of the case, it would seem to me that liability could have been established on that 

ground too even under the standard of Washington v. Davis, 426 U.S. 229 (1976). 

149 The dissenting commissioners also argue in their statement that, contrary to the beliefs of some, the English 

language is not “under siege.” (Draft Dissent at 2.) It is unclear whether this (or even a false belief that English 

is in jeopardy on the part of employers) has any bearing on Title VII issues. If I understand what the dissenting 

commissioners mean by this military metaphor, they may well be right that English is not “under siege.” I 

certainly take no position on the question of whether English language acquisition is proceeding more quickly 

or less quickly than it did in the past among immigrant communities. Nevertheless, the inner statistician in me 

compels me to point out that the statistics they use to support their point contain a significant methodological 

flaw. 

They state, “In 1990, 64 percent of third-generation Mexican-American children spoke only English at home; in 

2000, the equivalent figure had risen to 71 percent.” In interpreting these numbers it is important to keep in 

mind the U.S. Census’s definition of the relevant terms: A first-generation child is a child born in a foreign 

country. A second-generation child is defined as the offspring of at least one foreign born parent. A thirdgeneration or higher child is the offspring of two American-born parents. (Note that the dissenting 

commissioners have slightly misstated these figures. They apply to “third-generation or higher,” not “thirdgeneration.” Since the rate of English spoken at home by fourth, fifth and higher generation children is 

overwhelmingly likely to be higher than that by third-generation children, these numbers overstate the latter and 

understate the former.) 

These definitions makes it very difficult to compare across decades when immigration is expanding or 

contracting, since the numbers of mixed-generation marriages can be expected to change during such periods 

too. The period between 1990 and 2000 was part of a long-period of steadily increasing immigration. As the 

pool of first-generation immigrants increases, the chance that a second-, third- or higher generation adult will 

marry a first-generation immigrant increases. The children of such a union will be classified as secondgeneration under the U.S. Census definitions. And if those children marry first-generation immigrants 

themselves, a chain of “second-generation” children can in theory be maintained for a significant period of time. 

This is the crucial point: Especially given that it is the least-assimilated second-, third- and higher generation 

adults who are more likely to marry a first-generation immigrant, this may artificially inflate the rate at which 
English Only Policies in the Workplace 97

There are many good reasons that an employer may wish to require its bilingual employees 

to speak only English in the workplace. There is therefore no need to assume in the absence 

of evidence that an employer’s motivations are discriminatory. Among the good reasons are 

these: 

(1) An employer may be concerned that its monolingual customers and employees will 

be made uncomfortable because they cannot understand what is being said by the 

bilingual employees. These monolingual customers and employees may imagine, 

correctly or incorrectly, that they are being talked about or that they are being made 

the butt of jokes by the bilingual employees—especially if they can hear their names 

interspersed among words they cannot understand.150 

 third-generation or higher children appear to be English-language assimilated. None of this is to say that 

mixed-generation marriages hasten or delay English-acquisition. It could be either. Marrying a first-generation 

immigrant will likely slow the English-acquisition of the children of the second-generation parent relative to 

what would have been if the second-generation parent had married another second-generation adult. On the 

other hand, from the perspective of the first-generation immigrant, having a second-generation spouse rather 

than a fellow immigrant spouse likely speeds the English-language acquisition of his or her children. Without 

more sophisticated data, it is impossible to know how this nets out overall. 

What is certain is that looking at the rates of English language use by third-generation and higher is a highly 

misleading way to go about comparing English-language assimilation by immigrants across decades. The 

likelihood of an increase in the number of mixed-generation families in times of increasing immigration throws 

off the analysis. 

 

It is also worth pointing out that the very same article the dissenting commissioners cite to show that rates of 

English spoken at home for third-generation (and higher) children are increasing contains a chart indicating that 

the rate for second-generation children decreased slightly over the same period. See Richard Alba, Language 

Assimilation Today: Bilingualism Persists More than in the Past, But English Still Dominates, Lewis Mumford 

Center for Comparative Urban and Regional Research, University of Albany (December 2004)(Figure 2), 

available at http://mumford.albany.edu/children/reports/language_assimilation/language_assimilation_brief.pdf. 

It should go without saying that cherry picking statistics is not a good practice. In any event, both sets of 

figures must be viewed with more than a little skepticism for the reasons above and other reasons. 

Indeed, even if both numbers had pointed in the same direction, it still would not have been reliable evidence 

that overall rates of English language acquisition increased from 1990 to 2000 as the dissenting commissioners 

contend. If that seems counter-intuitive, think of it this way: Suppose we have two groups, 100 members of the 

NBA, all of whom are well over six feet tall and 100 members of the hypothetical Pee Wee League, all of 

whom are children standing four feet high. Then we do two things: (1) the shortest member of the NBA is 

transferred to the Pee Wee League; and (2) five additional children join the Pee Wee League, all of whom are 

four feet tall. The average height of both groups has, of course, increased. But the average height of the 

combined group of 205 has decreased. 

This does not mean that English language acquisition by Mexican American immigrants and their descendants 

was or was not proceeding more quickly in 2000 than in 1990. The point is simply that the rate of English use 

at home by third-generation and higher children is just one piece of the puzzle—and likely a highly misleading 

one given the likelihood of an increase in mixed-generation marriages. An accurate or even reasonable measure 

of the phenomenon the dissenting commissioners purport to measure is much harder to come by than their 

statement would suggest. 

150 See Garcia v. Spun Steak Co, 998 F.2d 1480 (9th Cir. 1993). The court in Garcia described the employer’s 

reasons behind its decision to adopt an “English Only” work rule this way: 
98 Commissioner Statements 

(2) An employer may be concerned that its bilingual or multilingual customers and 

employees will be made uncomfortable because they understand only too well what is 

being said by bilingual or multilingual employees. Sometimes the insults and 

harassment are quite open to those who speak the language. The monolingual 

employer/supervisor on the other hand does not understand and hence cannot 

properly discipline the offending employees. Allowing the problem to continue 

could cause the employer to lose employees or customers or could even open the 

employer up to liability for claims of sexual or other kinds of harassment.151

 Prior to September 1990, [bilingual] Spun Steak employees spoke Spanish freely to their coworkers during work hours. After receiving complaints that some workers were using their 

bilingual capabilities to harass and to insult other workers in a language they could not 

understand, Spun Steak begun to investigate the possibility of requiring its employees to 

speak only English in the workplace. Specifically, Spun Steak received complaints that 

Garcia and Buitrago made derogatory, racist comments in Spanish about two co-workers, one 

of whom is African-American and the other Chinese-American.” 

“The company’s president, Kenneth Bertelson, concluded that an English-only rule would 

promote racial harmony in the workplace. In addition, he concluded that the English-only 

rule would enhance worker safety because some employees who did not understand Spanish 

claimed that the use of Spanish distracted them while they were operating machinery, and 

would enhance product quality because the U.S.D.A. inspector in the plant spoke only English 

and thus could not understand if a product-related concern was raised in Spanish. 

Similarly, in EEOC v. Synchro-Start Products, Inc., 29 F. Supp 2d 911 (N.D. Ill. 1999), the employer had a 

staff of approximately 200 employees. Nearly all were first-generation immigrants of Asian, Hispanic or Polish 

descent. As its attorney, Timothy J. Riordan described it at our briefing: 

On numerous occasions, individual employees complained that other employees were 

speaking in their native foreign languages and using their bilingual capabilities to harass and 

insult other workers in a language they could not understand. For example, one employee 

stated that Hispanic employees had spoken in their native language which she could not 

understand, then they looked at her, laughed and rolled their eyes, making her feel very 

uncomfortable and intimidated. On each occasion that such complaints were made, the plant 

manager talked to the supervisors to determine the validity of the complaint and the 

appropriate response. The supervisors then attempted to deal with the issue by discussing the 

matter with the group leaders and the effected employees, suggesting that the employees 

speak English while in the presence of other employees who did not speak the same language, 

so that feelings will not be hurt and to improve morale and communications. 

The plant manager was also contacted by a representative of a temporary employment agency 

which provided Synchro-Start with employees who advised that two of the temporary 

employees intimidated them and made them uncomfortable by speaking their own language 

which the temporary employees could not understand. 

See Statement of Timothy J. Riordan at 20. 

151 In Gloor v. Garcia, 618 F.2d 264 (5th Cir. 1980), the employer, a lumber and supply company, argued, 

among other things, that its English only rule “would permit supervisors, who did not speak Spanish, better to 

oversee the work of subordinates.” 
English Only Policies in the Workplace 99

(3) An employer may be concerned that if all employees are not speaking the same 

language miscommunications will occur that will lead to safety or quality 

problems.152

Nevertheless, the EEOC has for years had guidelines that assert that it “will presume [an 

English-Only rule that applies at all times] violates title VII and will closely scrutinize it.” 

Under the same guidelines, an employer may adopt an English-Only rule that applies only “at 

certain times,” but only “where the employer can show that the rule is justified by business 

necessity.153

 

152 This appears to have been a consideration in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993) and in 

EEOC v. Synchro-Start Products, Inc., 29 F. Supp 2d 911 (N.D. Ill. 1999). 

Other employer motivations for English only rules may be unique to particular industries. For example, in 

Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987), the defendant employer was a radio station. When 

one of its employee disc jockeys began broadcasting in a mixture of English and Spanish, management 

concluded that their ratings were suffering and asked him to desist. The employee stated in an affidavit: 

“Benson wanted me to stop speaking Spanish altogether. I did not comply with Benson’s 

wishes because it would have taken my character away. He told me to speak English or quit. 

I told him I would not quit, he would have to fire me. I refused to give up my bilingual 

presentation.” 

Id. Of course, the employer’s position is easy to understand in this case. The employer earns profits by keeping 

its rating as high as possible. The employer was understandably concerned that a bilingual program sandwiched 

between English programming will cause monolingual English speakers to switch stations without picking up 

an equal or larger number of listeners who prefer bilingual programming. Insofar as the bilingual program 

picks up any additional listeners, they will likely be lost as soon as the program is over and the format switches 

back to English. Mixed formats tend to confuse listeners. It is not usually a profit maximizing move. What is 

remarkable about the Jurado case is that it was filed at all. 

 

153 Section 1606.7 specifically states: 

Section 1606.7 Speak-English-only rules. 

(a) When applied at all times. A rule requiring employees to speak only English at all times in the 

workplace is a burdensome term and condition of employment. The primary language of an individual 

is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, 

from speaking their primary language or the language they speak most comfortably, disadvantages an 

individual’s employment opportunities on the basis of national origin. It may also create an 

atmosphere of inferiority, isolation and intimidation based on national origin which could result in a 

discriminatory working environment. Therefore the Commission will presume that such a rule violates 

title VII and will closely scrutinize it. 

(b) When applied only at certain times. An employer may have a rule requiring that employees speak only 

in English at certain times where the employer can show that the rule is justified by business necessity. 

(c) Notice of the rule. It is common for individuals whose primary language is not English to 

inadvertently change from speaking English to speaking their primary language. Therefore, if an 

employer believes it has a business necessity for a speak-English-only rule at certain times, the 

employer should inform its employees of the general circumstances when speaking only in English is 

required and of the consequences of violating the rule. If an employer fails to effectively notify its 
100 Commissioner Statements 

As is so often the case with regulatory guidelines of any kind, they are deceptive when they 

suggest that English only rules that apply only “at certain times” will be permitted if they are 

justified. In practice, it is extremely difficult to persuade the EEOC of business necessity. 

Those who offer advice to employers warn of the difficulties. For example, the National 

Federation of Independent Business tells its 350,000 small-business members that they “may 

be in for a rude awakening in the form of a civil-rights lawsuit if [they] have an English-only 

workplace.”154 Another organization--- Wolters Kluwer Law & Business/CCH--calls the 

business necessity standard “stringent” and states: 

“Under the best-case scenario an English-only policy subjects an employer to 

potential litigation. For example, even in jurisdictions where narrowly 

tailored English-only policies have been held lawful, such as Florida, the 

EEOC routinely accepts charges challenging such policies.”155

Another popular web site on human resources issues offers this advice: 

“It’s very tempting for employers to mandate their employees speak only 

English during working hours. It’s also—in most cases—very wrong. ... If 

you wish to mandate an English-only workplace, we strongly suggest you 

review the policy with an employment attorney prior to implementation. It’s 

not worth it!”156 

 employees of the rule and makes an adverse employment decision against an individual based on a 

violation of the rule, the Commission will consider the employer’s application of the rule as evidence 

of discrimination on the basis of national origin. 

(Citations omitted.) 

The reason for the EEOC’s distinction between policies that apply to employees on break is not clear. If the 

reason the employer adopts the policy is to prevent harassment of other employees, the danger is higher while 

the employees are on break, not lower. Perhaps the EEOC would take the position that when these guidelines 

were initially drafted, the Civil Rights Act of 1991’s new remedial provisions were not yet law and lawsuits for 

racial, sexual, religious and national origin harassment were not as common as they are today. See supra n. 2. 

Hence they gave the employer’s need to police employees little weight. If so, circumstances have now changed. 

154 National Federation of Independent Business, English-Only Workplace Policies: Tread Cautiously to 

Avoid Discrimination, available at http://www.nfib.com/business-resources/business-resourcesitem?cmsid=29535. 

155 HR Issues and Answers: Approach Workplace English-Only Policies Cautiously (October 6, 2003), 

available at http://hr.cch.com/hhrlib/issues-answers/approach-workplace-english-only-policiescautiously.asp?date=October-6-2003. 

156 See English Only in the Workplace? Bad Idea, Managing People in the 21st Century (June 15, 2009), 

available at http://managingpeople.blogspot.com/2009/06/english-only-in-workplace-bad-idea.html. 
English Only Policies in the Workplace 101

Indeed, the witnesses at our briefing told stories of ruinous litigation instigated by the EEOC 

against the businesses they owned or represented when the English only rules under scrutiny 

were perfectly justified.157 It is hardly surprising under the circumstances that employers 

make every effort to steer clear of confrontations with the EEOC the best they can. Only an 

employer who is convinced that its decision will pay large dividends will take the risk of 

trouble. The employer’s ability to adapt to the facts on the ground is reduced. Innovation is 

chilled. 

After they argue that English only policies somehow harm global competition, the dissenting 

commissioners argue that EEOC’s stringent approach is justified because the typical 

employer adopting an English only rule is in fact somehow ill-motivated. Their statement 

quotes Kerry O’Brien, Director of Services at CASA de Maryland: “’There is no doubt that 

employers are using these policies to enforce an anti-immigrant point of view, and therefore 

systematically violating the federal laws of the United States.”’ 

This is a stretch. It doesn’t take unusual sensitivity to recognize that it is often considered 

rude to speak in a language that others in the room do not understand—whether that language 

is Spanish, English or ancient Etruscan.158 It can make those who do not understand feel 

excluded. When that can be avoided without significant inconvenience, it should be. 

It is unnecessary to take my word concerning the sensitivities of those who perceive 

themselves to be excluded. The internet is alive with expressions from ordinary employees 

about their feelings.159 Experts on workplace decorum also weigh in. Cynthia Lett, author 

of “That’s So Annoying—An Etiquette Expert on the World’s Most Irritating Habits,” gave 

this advice in response to an inquiry from an unhappily excluded employee. 

 

It is considered rude for foreign language speakers to converse in their native 

tongue if English speakers are apt to be listening. It is exclusionary and 

makes those who don’t understand uncomfortable. Since the point of 

demonstrating good etiquette (either business or social) is to make others 

157 See Statements of Richard Kidman at 31-4 (describing his business’s experiences with litigation); K.C. 

McAlpin at 22-30 (describing cases that he has learned about through his work with the group Pro-English, 

including a case involving the Sephora cosmetics chain’s policy and that of the Salvation Army) and Timothy J. 

Riordan (describing his experiences as a lawyer for Synchro-Start, a firm that had an English only-policy) at 19-

21. See also Tr. at 29-37 (Riordan’s oral testimony); 37-45 (McAlpin’s oral testimony) and 45-53 (Kidman’s 

oral testimony). 

158 Similarly, it does not take an industrial engineer to see why a uniform language may often be desirable in 

the workplace as a way to promote safety and quality. One of the best-loved stories in Western Civilization is 

that of the ill-fated Tower of Babel. That project was abandoned when workers suddenly found themselves 

speaking in a multitude of languages. See Genesis, ch. 11, v. 1-9. Similar stories involving an epic project that 

must be abandoned on account of a confusion of languages occur in many other cultures too. See Sir James 

Frazer, Folklore in the Old Testament: Studies in Comparative Religion, Legend and Law (1918). 

159 Something to Talk About: Different Languages at Work, Monster Blog (July 25, 2006), available at 

http://monster.typepad.com/monsterblog/2006/07/something_to_ta.html, (stating that some people have 

“suggested that non-English workplace conversations might be seen as exclusionary and create a "languagehostile" environment.”). 
102 Commissioner Statements 

comfortable, putting others in the position of not understanding what you are 

saying may make them believe you are saying something you don’t want them 

capable to understand, thus they are uncomfortable and suspicious of both of 

you. 

What you do in your own home or together in a strictly social situation, where 

all others speak the same language, is different than in a business where you 

know you are the only ones who understand.160

Are Ms. Lett and the thousands of others who have expressed their feelings of exclusion 

simply venting their anti-immigrant rage? The dissenting commissioners apparently think so. 

But perhaps my own experience with my grandmother will shed light on the issue. 

My grandmother lived most of her life in rural Maine, where, apart from an occasional 

French Canadian, non-English speaking immigrants were fairly rare. Like Ms. Lett, she felt 

that speaking a language that not everyone in the room understands is generally rude, and she 

told me so in no uncertain terms when I was about ten years old. In her case, however, it is 

rather difficult to accuse her of being “anti-immigrant” or “anti-any-particular-nationalgroup.” The conduct she wished to correct was not that of an immigrant, but rather of my 

 

160 Cynthia Lett, Business Etiquette: Foreign Language at Work (May 28, 2004), available at 

http://en.allexperts.com/q/Business-Etiquette-2294/foreign-language-work.htm. 

Similarly, DiversityInc, a popular magazine/webzine that bills itself as “the leading source information on 

diversity management,” spoke to “leaders from Latino professional groups for their best advice on speaking 

Spanish and how it can affect your daily professional life.” It received answers like this one:

"One can acknowledge a coworker as Spanish speaker with a greeting but then should revert to English so that 

no one is excluded," says Manny Espinoza, CEO of the Association of Latino Professionals in Finance and 

Accounting (ALPFA). "It can definitely be perceived as rude, so it is better to err on the side of common 

courtesy." 

Lizz Carroll, Should You Speak Spanish at Work?, DiversityInc (October 9, 2009) available at 

http://www.diversityinc.com/article/6233/Should-You-Speak-Spanish-at-Work/. Espinoza’s answer was 

typical. Another example from the same article is the following: 

 

“Jim Huerta, president emeritus of the National Society of Hispanic MBAs (NSHMBA), advises you to mind 

your manners. ‘I think that what prevails is be courteous in a public setting, whether it's professional or social,’ 

he says. ‘[So] if you're going to speak a foreign language, you should know who's in attendance, who's in your 

surroundings and what environment you're in.’" 

See also, Zayda Rivera, Is It Okay to Speak Spanish in the Workplace?, DiversityInc (October 13, 2008), 

http://www.diversityinc.com/article/4580/Is-It-OK-to-Speak-Spanish-in-the-Workplace/. In that article, Rivera 

quotes Rene Rodriguez, president and founder of Babbalu.com, a predominately Latino organization, 

who believes that it is “common workplace courtesy” to respect the feelings of non-Spanish speaking 

colleagues:

"’It's rude to speak [Spanish] if you're in a room with five people and three are Latino or two are Latino and 

three are not,’ he says. ‘Whatever the case may be, it's rude for those two people to be speaking in a manner that 

the other people do not understand.’" 
English Only Policies in the Workplace 103

ten-year-old playmates and me. And the language she disapproved of was not a true language 

that could be associated with a particular nationality. Rather it was a secret code spoken by 

children language similar to Pig Latin.161 

My grandmother was obviously not indulging some bias against immigrants or against 

members of certain national origin groups. She wasn’t even acting out of personal 

resentment that she could not understand. (Alas, she had broken the code herself all too 

easily.) She was just trying to prevent me and my code-talking girl friends from hurting the 

feelings of the other children in the neighborhood who had not yet figured it out. How can it 

be so obvious to the dissenting commissioners that employers who impose English only rules 

are not similarly motivated? 

The dissenting commissioners are very inclined to find anti-immigrant hostility—despite the 

fact that they have pointed to no cases in which the employer’s decision appears to be so 

motivated. Indeed, the employers who adopt English only rules are ordinarily the employers 

who have hired a large number of immigrant employees. Such hiring decisions would seem 

to me to be a good indicator, even if not a perfect indicator that the employer does not harbor 

anti-immigrant hostility. 

A useful way to look at this debate is as a disagreement about the EEOC’s authority to 

prescribe presumptions. The EEOC implicitly takes the position that it can designate certain 

conduct as presumptively in violation of Title VII, and that once it does, it is up to the 

defendant employer to demonstrate it did not discriminate rather than up to the EEOC or to a 

Title VII plaintiff to demonstrate that it did. In the case of English only rules that apply at all 

times, the EEOC makes it clear that the presumption is all but irrebuttable. In the case of 

English only rules that apply only sometimes, the presumption is stringent, but in theory may 

be rebutted by proof of business necessity. 

Title VII, however, confers no such power. And the Supreme Court has made it clear that 

Title VII follows the ordinary model in civil cases, which places the burden of proof on the 

plaintiff to show a violation of the law. The defendant is not obligated to prove it is not a 

wrongdoer. Although the burden in a civil case is fairly light—plaintiff need only prove by a 

preponderance of the evidence that the defendant is liable for his actions—it is nevertheless 

the plaintiff’s burden, not the defendant’s. As the Supreme Court put it in St. Mary’s Honor 

Center v. Hicks, 509 U.S. 502 (1993), a case that held that the burden of proof in Title VII 

cases is on the plaintiff: 

“The question facing triers of fact in discrimination cases is both sensitive 

and difficult. The prohibitions against discrimination contained in the Civil 

Rights Act of 1964 reflect an important national policy. There will seldom be 

‘eyewitness’ testimony as to the employer’s mental processes. But none of 

 

161 See Wikipedia Entry for “Gibberish (Language Game), available at 

http://en.wikipedia.org/wiki/Gibberish_(language_game). 
104 Commissioner Statements 

this means that trial courts or reviewing courts should treat discrimination 

differently from other ultimate questions of fact.”162

The dissenting commissioners also try to defend the EEOC’s policy against English only 

rules on the ground that such rules have disparate impact on national origin minorities.163 

 

162 St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 524 (1993)(quoting United States Postal Service Board of 

Governors v. Aikens, 460 U.S. 711, 716 (1983). See also Texas Department of Community Affairs v. Burdine, 

450 U.S. 248, 256 (1981)(“The plaintiff retains the burden of persuasion” in a Title VII case). 

163 The Supreme Court has never directly addressed the constitutionality of disparate impact analysis. In his 

concurrence in Ricci v. DeStefano, 129 Sup. Ct. 2658 (2009), a case that avoided the question, Justice Scalia 

begins with this statement: “I ... write separately to observe [this decision] merely postpones the evil day on 

which this Court will have to confront the question: Whether, or to what extent, are the disparate-impact 

provisions of Title VII ... consistent with the Constitution’s guarantee of equal protection.” 

In any event, Title VII has been seriously altered by the rise of “disparate impact” theory, which since Griggs v. 

Duke Power Co., 401 U.S. 424 (1971) and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), has come to be 

an accepted tool for analyzing job qualifications. Since the Civil Rights Act of 1991, disparate impact theory 

has been backhandedly acknowledged in the text of the statute. See 42 U.S.C. 2000e-2(k). 

 

Under it, employers must constantly be on guard lest some facially neutral job qualification or requirement be 

challenged on the ground that it has disparate impact on women or men or on some racial, religious or national 

group—regardless of whether the employers consciously or unconsciously adopted the qualification or 

requirement on account of its discriminatory effect. Intent to treat members of one group differently from 

members of another is deemed irrelevant to liability. 

The problem is that very nearly all qualifications have a substantial disparate impact on some group. As a 

group, men are physically stronger than women. Unitarians score higher on mathematics aptitude tests than 

Lutherans. Hispanics are more likely to meet the height and weight requirements to be jockeys than are 

Swedish Americans. Asian Americans are more likely to have a college degree in engineering than American 

Indians. Subcontinental Indian Americans are more likely to have management experience in the 

hotel/restaurant industry than Polish Americans. Women are more likely to qualify for jobs requiring 

experience caring for small children. Some group is always advantaged or disadvantaged by a particular job 

requirement 

Consequently, if the disparate impact of a job qualification can form the basis of liability, every job 

qualification is presumptively a violation of the law. Employers must be vigilant to avoid any action that will 

encourage the EEOC or a disgruntled employee to go to the trouble of taking legal action. See also Uniform 

Guidelines on Employee Selection Procedures, 29 C.F.R. part 1607 (attempting to limit the use of disparate 

impact analysis with arbitrary numerical limits). 

In theory, employers can escape liability by proving that “business necessity” required them to act as they did. 

But such a defense is often of little practical use. Most employers are not in a position to risk litigation in the 

hopes that once the lawsuit is filed they will be able to persuade the trier of fact that they are responding to a 

“business necessity.” They must avoid trouble before it starts. Consequently, they will avoid a perfectly sound 

objective employment qualification—like an examination that requires the job applicant to prove his mastery of 

basic bookkeeping/accounting procedures-- if its disparate impact is easily provable, and instead adopt some 

second-best subjective standard. 

The irony, of course, is that the subjective standard they adopt—e.g. “passing” a personal interview with the 

personnel manager about basic bookkeeping/accounting procedures--may indeed require judgment calls by a 

manager that allow him to disguise his conscious or unconscious discrimination. But because the standards are 

subjective, it will be almost impossible to prove. Legal action is thus significantly less likely. 
English Only Policies in the Workplace 105

But regardless of one’s view of disparate impact analysis as a whole, any disparate impact 

argument is dubious here. At issue are workplace regulations that can be easily complied 

with if the employee is only willing to do so (as opposed to employment qualifications that 

work to screen out some applicants for employment entirely.) Three courts have already held 

that disparate impact analysis for English-only rules is inappropriate.164

The argument is not that members of national origin minorities made subject to the English 

only rules cannot speak English in the workplace; the argument is that they may prefer not to. 

The cases we are looking at all involve employees who are bilingual.165 Lack of desire is 

insufficient to give rise to a claim for disparate impact. The disparate impact approach was 

developed as an extreme remedy to deal with true obstacles to employment, not to regulate 

the everyday working environment. 

There are many things employees prefer not to do. They can’t all give rise to Title VII 

lawsuits just because their preferences will have a disproportionate impact on one race, color, 

sex, religion or national origin. Some of these preferences will be strongly held, others less 

so. More Catholics than atheists may prefer not to work at a hospital that performs abortions. 

More women than men may be disappointed by a rule that requires them to wear what they 

regard as unfeminine work clothes. Some of these preferences are not obvious until they are 

given some thought. More Mexican Americans than Danish Americans may be disappointed 

that an employer does not allow its employees to use sick leave to take their well children to 

routine doctor’s appointments (since on average Mexican American families have more 

children than Japanese American families). The list could go on. The problem is that there 

is no method by which these preferences can be classified and prioritized that does not put 

the federal government in change of every decision an employer makes.166

 

The ultimate beneficiaries of this overwrought legal system are not employees in general or even women and 

minority employees in particular. When employers feel that their discretion has been hemmed in, they will 

likely hire fewer, not more, employees. Instead, the beneficiaries are mainly the lawyers and human resources 

experts who administer the system. These days, no employer can afford to make decisions about job 

qualifications (or indeed many other workplace practices) without consulting an expert. 

164 Garcia v. Spun Steak, 998 F.2d 1480, 1486-7 (9th Cir. 1993); Kania v. Archdiocese of Philadelphia, 14 F. 

Supp. 2d 730 (E.D. Pa. 1998); Long v. First Union Corp. 884 F. Supp. 933 (E.D.Va. 1995). 

 

165 Whether employers can decline to hire employees who do not speak English is a separate issue, not covered 

by the EEOC’s English only guidelines or by this briefing except insofar as witness K.C. McAlpin happened to 

list cases in his testimony showing that English-language ability is a common job requirement and that such a 

requirement is ordinarily not a problem under Title VII, since communication skills are basic to most jobs. 

Language job requirements adopted for the purpose of harassing, embarrassing or excluding applicants for 

employment on the basis of their national origin are, of course, violations of Title VII, just as English only rules 

adopted for those purposes would be. 

166 The problem cannot be dealt with by allowing the EEOC the discretion to determine which aspects of a 

particular culture are “essential” and which are not. Is the right to speak Spanish in the workplace, a language 

that is not unique to Mexico and not spoken by all Mexicans, “of the essence” of Mexican culture (and if so, 

why isn’t it essential to American culture that Americans speak English?)? Is it “essential” to secondgeneration Mexican-American culture? Or is it a more important aspect of Mexican- and Mexican-American 

culture to be able to honor the pro-life tenets of the majority religion among Mexicans—Roman Catholicism? 
106 Commissioner Statements 

It is the rule rather than the exception for men and women or for different racial, religious 

and national origin groups to have, on average, slightly and sometimes not-so-slightly 

different tastes and sensibilities. Indeed, that is the very point of the popular adage 

“diversity is our strength”: Broad groups are all different in some ways and it takes all kinds 

to run a successful business. Imposing a disparate impact theory on matters of employee 

preference will transform the decision on what radio station to listen to—salsa, rap, classical 

or bluegrass—into a legal issue. 

For disparate impact analysis to work even tolerably well, it must be limited to cases where 

employee selection and promotion practices screen out a disproportionate number of a 

protected group for reasons the members cannot immediately control. It cannot be applied to 

everything. 

Moreover, insofar as English only rules have a disparate impact on bilingual speakers, the 

failure to adopt English only rules has at least as great and arguably greater disparate impact 

on monolingual speakers. It is no doubt true that many bilingual speakers would prefer to 

speak a language other than English in the workplace. But it is also true that monolingual 

speakers (or bilingual speakers whose other language is not the language that is being 

spoken) would like to work where they can understand what the people around them are 

saying? Whose preferences must be indulged by Title VII? 

Note that indulging the preferences of bilingual employees can also have a disparate impact 

on the likelihood that African Americans, Irish Americans and members of others groups that 

tend to be monolingual will be hired in the first place. In Gutierrez v. Municipal Court of the 

Southeast Judicial District, Judge Reinhardt, in arguing against the necessity of English only 

rules insisted that “the best way to ensure that supervisors are apprised of how well the 

bilingual employees are performing ... their assigned tasks would be to employ Spanishspeaking supervisors.” 167

 Obviously, wise men and women will want to avoid these impossible questions. But even assuming that the 

EEOC staff members are so culturally sensitive that they can answer questions that would confound any 

reasonable anthropologist, it could not limit the application of these “rights” to members of that particular 

racial, religious, or national group without making a mockery of Title VII. Can Title VII give Mexican 

Americans and not African Americans a “right” to speak Spanish in the workplace? Can it give Roman 

Catholics and not Presbyterians a “right” not to have to work on a project that will confer benefits on an 

abortion clinic? Can it give Scotsmen and not Swedes the “right” to wear a kilt? As the ancient maps used to 

put it, “Thar be dragons.” When the direction the EEOC is headed in requires employers to discriminate rather 

than forbids them to do so, it is time to reverse course. 

Employers often can, should, and do accommodate the particular tastes and desires of their workers, included 

some that are rooted in the workers’ race, color, gender, religion or national origin. They do so in large part 

because they correctly understand that this is often in their own self-interest: Employers want to attract and 

retain good employees. Interpreting Title VII as the EEOC and the dissenting commissioners urge makes this 

harder, not easier. 

167 838 F.2d 1031 (9th Cir. 1988), vacated, 490 U.S. 1016, 1043 (1989)(Reinhardt, J.), vacated, 490 U.S. 1016 

(1989). 
English Only Policies in the Workplace 107

This solution is worse than the problem. In Gutierrez, bilingual employees had been 

ridiculing and insulting fellow employees, including at least one African-American 

employee. Judge Reinhardt wanted to deal with this not by requiring the bilingual employees 

to speak in a language understood by their supervisor, so that he or she could ensure that they 

were observing proper workplace decorum, but by requiring the employer to hire supervisors 

who speak the language (or languages in the case of multi-ethnic workplaces) of the 

offending employees. This effectively shuts out monolingual employees (who will be 

disproportionately African American, Irish American and other racial or ethnic groups who 

tended to arrive in this country at an earlier time) from supervisory positions. 

In dissenting from the decision not to rehear the case en banc, Judge Alex Kozinski wrote: 

The opinion gives an important insight into the types of problems we are 

creating for ourselves by failing to repudiate the rule the panel adopts. In 

response to the defendants’ argument that non-Spanish speaking supervisors 

will be unable to supervise employees who speak Spanish during working 

hours, the panel offers a facile solution: “employ Spanish-speaking 

supervisors.” This “let them eat cake” attitude masks a very serious problem: 

By deciding to speak another language during working hours, employees can 

limit who may qualify for supervisorial positions. If fluency in a second 

language is the sine qua non of supervisorial status, employees who are not 

bilingual, including other people of color, will be effectively eliminated from 

consideration for these coveted positions. Given the natural competition for 

supervisorial posts, Gutierrez may well exacerbate racial tensions. It is 

incomprehensible to me that this result is being reached in the name of a law 

designed to promote ethnic and racial harmony in the workplace.168

And it gets worse. Even bilingual employees as a group are eventually disadvantaged under 

the EEOC’s approach. One of the most unfortunate aspects of its policy is that it increases 

rather than decreases the incentive for employers to discriminate on the basis of national 

origin. Suppose an employer believes in good faith that it must closely supervise its 

employees (bilingual or otherwise) out of concern that customers or other employees are 

being harassed. It knows, however, that the adoption of an English-only policy, which it 

needs in order for its supervisors to keep tabs on its employees, is a legally risky move, so it 

tries to come up with an alternative. The most obvious alternative may be to avoid hiring 

bilingual employees in the first place. Unlike an English Only rule, which must be explicitly 

disclosed to the affected employees in order to be effective, a policy of discrimination against 

immigrants from non-English-speaking countries can fly under the radar screen. This hardly 

seems like an incentive the EEOC should wish to create. 

 

168 Gutierrez v. Municipal Court of the Southeast Judicial District, 861 F.2d 1187, 1194 (9th Cir. 

1988)(Kozinski, J., dissenting from a denial of rehearing en banc)(citations omitted). 
108 Commissioner Statements 

This is an area that could benefit from attention by Congress.169 My greatest concern is that 

Congressional action limited to the area of English only rules might suggest to some that 

 

169 In their statement, the dissenting commissioners also attempt to critique the Commission’s findings pointby-point. My responses are as follows:

(1) The dissenting commissioners do not appear to have any specific grievance with Finding 1 except that they 

would have preferred the Commission to expand on it. Specifically, they seem to want an acknowledgement 

that the EEOC, in their words, “recognizes both the need to prohibit employers from engaging in discriminatory 

practices as well as the right of employers to establish non-discriminatory workplace practices.” (Draft Dissent 

at 5.) The whole point of the report, however, is that the EEOC does not in fact sufficiently recognize these 

competing considerations. The dissenting commissioners’ point, insofar as they have one, really goes to the 

report as a whole rather than to Finding 1. For its rebuttal, please see this statement’s text. 

(2) The dissenting commissioners purport to take issue with the Commission’s finding that “[a]lthough 

Congress consciously withheld the power to issue substantive regulations in connection with Title VII when it 

created the EEOC, the EEOC has for decades nevertheless issued ‘Guidelines’ ....” (Finding 2.) They state 

that this finding “inaccurately characterizes the legal status of the EEOC’s Guidelines.” I very much stand 

behind the Commission’s characterization. They are not statutes, not regulations, and not law of any kind. The 

dissenting commissioners cite a case in which the Supreme Court accords them “consideration in determining 

legislative intent.” General Electric v. Gilbert, 429 U.S. 125, 141 (1976)(ultimately rejecting the EEOC 

guidelines as a persuasive source for the meaning of Title VII). (Draft Dissent at 5.) But the fact that 

something may be considered in determining legislative intent does not make it law. Courts may consider a 

wide range of things in determining legislative intent—committee reports, debates on the floor of Congress, 

reports of the U.S. Commission on Civil Rights, legal treatises, law review articles, and even non-legal sources 

like dictionaries and newspapers. Any source may be considered “for what it is worth.” But for the EEOC 

Guidelines to be treated as regulations would be a usurpation of power given Congress’s clear intent that it 

should not have that power. 

(3) In arguing against Finding 3, the dissenting commissioners take exception to the Commission’s conclusion 

that “Section 1606.7 does not apply to ‘Spanish Only,’ ‘Japanese Only,’ or other exclusive language rules.” 

(Finding 3.) They point to the testimony of EEOC counsel Reed Russell, who admitted that the logic of the 

EEOC’s analysis ought to other languages also. Russell was, of course, conceding the implication of the 

Commission’s point, not denying it: There is no reason under Title VII to treat English only rules differently 

from workplace rules establishing any other language as the language of the workplace. Yet that is what the 

English only guidelines do. As Mr. Russell himself put it, “[W]e have not seen fit to issue a later guideline that 

says and also fill in the blank only ....” (Tr. at 97). Mr. Russell attempted to assure that “assuming a charge 

was filed,” the EEOC would take it seriously as a potential Title VII violation. But such an assurance is beside 

the point. Given that the published guidelines expressly prohibit “English only” rules and no other, the agency 

is less likely to receive a complaint about a different language rule and employers are less to be deterred from 

instituting “other language only” rules. The dissenting commissioners’ decision to challenge Finding 3 is 

puzzling; it is simply a fact that Section 1606.7 applies to English only policies and makes no mention of any 

other kinds of exclusive language policies. It bears emphasis that the Commission has not taken the position 

that the guidelines should be amended to prohibit other exclusive language policies. Rather, it is our position 

that Section 1606.7 should be withdrawn. 

(4)The dissenting commissioners do not appear to have a problem with Finding 4, which points out that more 

courts have rejected the EEOC’s English Only policy than accepted it and cites the specific cases. Instead they 

take issue with one of the witnesses, K.C. McAlpin, who drew the Commission’s attention to a large number of 

cases that deal with the relationship of language and national origin--usually in the context of employment 

discrimination. Their point appears to be that not all of these cases bear specifically on the EEOC’s English 

Only policy. This is true enough, though it is my understanding that when Mr. McAlpin stated at the briefing 

that there are “over 20 decisions that have explicitly rejected the EEOC formulation” (Tr. at 39), he meant the 

EEOC’s general formulation of the link between language and national origin. That formulation does indeed 
English Only Policies in the Workplace 109

Congress generally approves of the EEOC’s other guidelines. This is not an impression that 

should be created. 

Ordinarily I would treat criticisms of the briefing process itself in the footnotes. But I am 

troubled by the use of footnotes in the dissenting commissioners’ statement, and I think the 

issue merits treatment in the text of this statement. 

The dissenting commissioners complain that the “briefing relied on a set of witnesses that 

were not able to provide a sufficiently diverse and thorough treatment of the briefing’s 

topic.” “Two of the English-only supporters, Mr. Riordan and Mr. Kidman, were on the 

defendants’ side of employment lawsuits and a third, Mr. McAlpin, was also involved with 

 underlie the EEOC’s English only policy. In any event, the dissenting commissioners are dissenting from the 

Commission’s report, not from the testimony of one of the witnesses. As they apparently concede, the 

Commission’s Finding 4 accurately lists cases that bear directly on English only policy in particular. 

(5)The dissenting commissioners object to Finding 5, which catalogues commonly-articulated reasons for 

adopting an English only policy. They argue, among other things, that “[n]o recognition is given “to the 

possibility that pretextual use of these ‘good reasons’ could lead to employee discrimination.” (Draft Dissent at 

6). To the contrary, this report fully recognizes the possibility of pretext. It repeatedly states that English only 

policies that are adopted for the purpose of harassing, embarrassing or excluding employees or applicants for 

employment on account of their national origin are prohibited. For responses to the dissenting commissioners’ 

other objections to this finding, see the text of this statement. 

(6) The dissenting commissioners chastise the Commission for a finding that, in their words, “English only 

policies are rarely adopted for the purpose of ‘harassing, embarrassing, or excluding’ people.” (Draft Dissent at 

7.) The actual finding states that employers who wish to adopt English only policies just for the purpose of 

harassing, embarrassing or excluding employees or applicants for employment on account of their national 

origin are “few.” In context, this is meant to be in contrast to “most employers” referred to in Finding 5, who 

are described as having “no need for [an English only policy].” This is a true statement. In my view, there is no 

need to determine precisely what proportion of employers who adopt these policies is well-motivated and what 

proportion is ill-motivated. It is more than sufficient to show that a significant number are well-motivated. In 

our system of civil liability, it is up to the plaintiff to prove by a preponderance of the evidence that the 

defendant has wronged him, and there is no good reason to reverse that presumption in the case of English only 

policies. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)(Title VII case placing burden of proof on 

plaintiff). Finding 6 goes on to state, “Withdrawing section 1606.7 and instead advising employers and 

employees that ‘English-only’ policies are prohibited only when the employer adopted the policy for the 

purpose of harassing, embarrassing or excluding employees or applicants for employment on account of their 

national origin would improve the guidelines and make them more consistent with the intent of Congress.” The 

dissenting commissioners argue that this “create[s] a safe harbor” for wrongdoing employers. (Draft Dissent at 

7.) To the contrary, such an approach merely establishes that cases involving English only rules should be 

governed by the same presumption in favor of the civil defendant as is ordinarily found in American law. The 

burden on the defendant is not heavy. In a case involving English only rules, it would be sufficient if the EEOC 

(or other Title VII plaintiff) could show that the defendant employer is “more likely than not” motivated by a 

purpose to harass, embarrass or exclude an employee or applicant for employment on account of his national 

origin. But it is the EEOC’s (or other Title VII plaintiff’s) burden, not the defendant employer’s. Defendants 

are not presumed to be wrongdoers. The dissenting commissioners argue that applying ordinary burden of 

proof rules to English only rules “would greatly undermine civil rights enforcement.” By the same token, 

placing the burden of proof on plaintiff in ordinary torts actions, from medical malpractice to nuisance to 

automobile accident cases, must “greatly undermine [tort] enforcement.” And the much greater burden of proof 

beyond a reasonable doubt in criminal case must “greatly undermine [criminal law] enforcement.” 
110 Commissioner Statements 

Mr. Kidman’s lawsuit.”170 This statement might suggest to some that the Commission 

received as witnesses only litigants on one side of the litigation. This is not the case. Both 

lawsuits were, of course, brought by the EEOC, and Reed Russell, Legal Counsel to the 

EEOC, testified on behalf of that agency. 

Moreover, the dissenting commissioners suggest that the Commission “invited ... a narrow 

and overlapping set of English-only proponents.” This is untrue. Buried in the footnote is an 

admission that the Commission in fact attempted to secure the testimony of a large number of 

other persons and organizations all of which it expected would have a positive view of the 

EEOC’s English only guidelines. The included the CASA de Maryland, the D.C. 

Employment Center, the Mexican American Legal Defense Fund, the Asian American Legal 

Defense and Education Fund, the League of United Latin American Citizens, the Lawyers 

Committee for Civil Rights Under Law, the National Council of La Raza, the ACLU 

Immigrants Rights Project and former mayor of Nashville William Purcell (then with the 

Institute of Politics at Harvard University’s John F. Kennedy School of Government). 

The dissenting commissioners’ notion that these organizations declined to participate because 

the Commission’s witness list was unfairly tilted against them is off-base. Kerry O’Brien, 

Director of Services at CASA de Maryland did agree to testify, and so did Laura Brown, an 

attorney with the D.C. Employment Justice Center. Both withdrew, however, the evening 

before the testimony. Nevertheless, to suggest that they withdrew on account of an 

unbalanced witness list is to engage in circular logic. The only reason that the witness list 

can be considered unbalanced is that they withdrew; their decision made a well-balanced list 

unbalanced. Fortunately, they had submitted statements, so all was not lost. 

Unfortunately, this leads to a sensitive subject. Over the last few years, it has been noted on 

more than one occasion that when witnesses whose views were in general sympathy with the 

Democratic appointees to the Commission have agreed to testify, they sometimes 

mysteriously withdraw shortly after their names were made available to all commissioners. 

Commissioner Michael Yaki would then berate the staff for failing to balance the witness list 

and argue that the report was somehow tainted.171

 

170 Mr. Riordan and Mr. Kidman provided different perspectives. Mr. Riordan is a lawyer who represented a 

Chicago area manufacturer in connection with EEOC-instituted litigation over the manufacturer’s English only 

rule. He testified as to the EEOC’s strong-arm tactics in that litigation. Mr. Kidman is a restaurant owner in 

Arizona. He testified from a businessman’s standpoint. I am surprised by the dissenting commissioners’ 

suggestion that this is somehow an overabundance of testimony from employers. Perhaps if the EEOC and 

other federal bodies took the time to hear from employers more often, unemployment would not be where it is. 

171 Commissioner Yaki’s term ended in December 2010. Although I am told he is set to be re-appointed to that 

seat, when that happens, he will no longer be in the Commission’s minority, since the Commission’s 

membership has changed in the last few months. I therefore do not expect to have to deal with this problem 

again. 

Commissioner Yaki was evidently of the opinion that witnesses whose views he agreed with were somehow 

being taken advantage of by being asked to present their views to the Commission. See Rebuttal of 

Commissioner Gail Heriot to Encouraging Minorities to Pursue Science, Technology, Engineering and Math 

Careers (October 2010). 
English Only Policies in the Workplace 111

The dissenting commissioner appear to be unaware that the rules requiring the Commission 

staff to assemble a panel of experts representing the broad spectrum of viewpoints were part 

of a series of reforms put into place beginning in 2005 under the chairmanship of Gerald 

Reynolds.172 The previous chairman, Mary Frances Berry, had been uninterested in ensuring 

such balance, and the Commission frequently held events at which only views congenial to 

Chairman Berry were entertained. 

Since the departure of Chairman Reynolds, the dissenting commissioners have terminated a 

number of highly beneficial programs and procedures he had put into place. I hope the 

policies favoring balanced presentations will not be among them. Instead, I believe these 

policies can be greatly improved upon by requiring individual commissioners to shoulder at 

least some of the responsibility for panel balance. I believe this will go a long way toward 

controlling the most recent abuses mentioned alluded to above as well as other real and 

potential problems the Commission has faced or will likely face in the future. 

Rebuttals

Abigail Thernstrom 

REBUTTAL STATEMENT OF VICE CHAIR THERNSTROM 

English Only Policies In the Workplace 

I hope all commissioners could agree that American students would benefit from knowing 

languages other than English, and that cultural ignorance and isolation is dangerous. When 

public school districts cut foreign languages out of their curriculum, they are saving money at 

the expense of quality education. 

I would make a sharp distinction, however, between a failure to expose children to foreign 

languages and cultures and the assumption on the part of schools that, in America, English is 

the primary language. American students who do not master English will end up flipping 

hamburgers and pumping gas, as the Democratic commissioners implicitly acknowledge in 

their dissent. 

English-only workplace rules are an entirely separate issue. In their dissent the Democratic 

commissioners essentially assert that more often than not English-only rules amount to 

national origin discrimination. It is too sweeping a condemnation for me. Attorney General 

Eric Holder has called America “a nation of cowards” when it comes to talking about race. I 

would put the point differently: We are a nation in which too many have been cowed into 

biting their tongues. Those who try to talk about the subject with a modicum of honesty – 

raising the problem of single-parent households in the black community, for instance -- risk 

 

172 See, e.g., Administrative Instruction 1-6. See also Letter of May 11, 2007 from Staff Director Kenneth 

Marcus to the Honorable Alan B. Mollohan and the Honorable Rodney P. Frelinghuysen (outlining reforms 

undertaken by the Reynolds administration). 
112 Commissioner Statements 

being called “racist.” If we want an intellectually honest discussion about the complexities 

of enforcing Title VII properly, it would seem best if we hesitate before charging people with 

condoning national origin discrimination. Stifling conversations, encouraging people to 

censor themselves lest they risk condemnation, is not in the public interest. 

In addition, where is the evidence that national origin discrimination is a big problem? The 

most obvious indicator of whether certain groups are deprived of jobs on the basis of their 

race or ethnicity is the employment/population ratio. Bureau of Labor Statistics data show 

that Hispanics consistently have higher employment/population than non-Hispanic whites in 

recent years. The ratio reversed -- but by only a tiny amount -- as a result of the current 

recession. The industries and skill levels in which Hispanics are concentrated have been 

particularly hard hit, but this presumably will reverse again when the economy recovers. The 

rates for Asians are also consistently as high or higher than those for whites, and remained so 

despite the recession. [U.S. Department of Labor, Labor Force Characteristics by Race and 

Ethnicity, 2009, Report 1026, Table 3, at http://www.bls.gov/cps/cpsrace2009.pdf.]. 

I agree that at the fringes of the English-only movement racist or xenophobic motives can be 

found, as in any political movement. But let us not take the extremists as representative of 

American sentiments in general, and let us keep the focus on workplace rules rather than the 

larger and complicated issue of immigration policy, which is another separate matter. If we 

tread carefully, we may find more agreement than disagreement on the commission. 

Peter Kirsanow 

Rebuttal of Commissioner Peter Kirsanow 

Rather than undertaking a detached, critical analysis of the Equal Employment Opportunity 

Commission’s (“EEOC”) Guidelines on “Speak English in the Workplace Rules” 

(“Guidelines”) my Democratic colleagues, writing in dissent,173 embrace the policy as a 

means of effectuating their vision, implicitly shared by the EEOC, of the modern 

multilingual, multicultural workplace. Their support for the Guidelines appears to stem from 

the same flawed premise that underlies the EEOC’s policy—that an employer’s adoption of a 

uniform workplace language requirement is more likely a reflection of national origin 

discrimination (which the dissent believes is a systemic national problem) than the result of 

some legitimate, non-discriminatory business necessity of the employer. 

The dissent fails to seriously credit or even adequately consider the wide spectrum of 

possible legitimate, non-discriminatory business purposes for which an employer might 

adopt a uniform workplace language requirement. At the same time, it countenances the 

 

173 Chairman Castro and Commissioners Achtenberg and Titus were not members of the Commission on Civil 

Rights either at the time of the English-in-the-workplace briefing or during the preparation and vote on the final 

report and findings and recommendations. At the Commission’s March 11, 2011 business meeting, a 

Commission majority approved a request by Chairman Castro to break with agency precedent and permit the 

new Commissioners to file a dissenting statement. I voted against that motion. 
English Only Policies in the Workplace 113

Guidelines’ seeming reversal of the traditional burden of proof from the plaintiff to make a 

showing that the employer’s language rule has a discriminatory purpose or effect to the 

defendant to prove that its policy is driven by a legitimate business necessity. The practical 

effect of the Guidelines is to make it exceedingly difficult for employers to defend Englishlanguage workplace policies. When faced with the likelihood of high litigation costs and 

external pressure in the form of negative publicity generated by the EEOC, many employers 

are forced to simply abandon these policies, however necessary to the safe, orderly and 

efficient running of the workplace they may be. 

By uncritically embracing the EEOC’s position with respect to English language workplace 

rules, the dissenting Commissioners abandon this Commission’s obligation to independently 

appraise the EEOC’s enforcement policies and make recommendations that might help those 

policies reflect a more reasonable balance between the federal government’s interest in 

ensuring nondiscrimination in employment and an employer’s prerogative to adopt policies 

that contribute to the safety, efficiency and harmony of its workplace. Worse still, by 

professing to know the “real underlying reasons for most of these English-only policies”174

without citing any actual data, evidence or other substantiation for their beliefs,175 the 

 

174 Dissenting Statement of Chairman Martin R. Castro, Commissioner Roberta Achtenberg and Commissioner 

Dina Titus (“Dissent”) at 83-84 (uncritically crediting the unsubstantiated assertion of one witness that antiimmigrant animus was at the heart of such rules). 

175 As evidence for this the proposition, the dissent cites the assertion of CASA de Maryland’s Kerry O’Brien in 

her written statement to the Commission. In that statement, O’Brien claimed that “[t]here is no doubt that 

employers are using these policies to enforce an anti-immigrant point of view, and therefore systematically 

violating the federal laws of the United States.” Dissent at 83-84. 

But O’Brien’s perspective is simply not borne out by the facts—far from being anti-immigrant or harboring 

anti-immigrant bias, many of the nation’s employers and business interests have been at the forefront of 

opposition to state, local and federal efforts to control illegal immigration and have argued strenuously for 

comprehensive immigration reform. See, e.g. Julia Preston, “Employers Fight Tough Measures on 

Immigration,” N.Y. TIMES (Jul. 6, 2008), http://www.nytimes.com/2008/07/06/us/06employer.html; Bill 

Kaczor, “Business Groups Can’t Stop Fla. Immigration bills, AP (Apr. 15, 2011), 

http://www.businessweek.com/ap/financialnews/D9MK3T6O0.htm. 

In fact, in her testimony before the Commission on English language workplace policies, Linda Chavez—a 

strong proponent of comprehensive immigration reform and a legal pathway to citizenship for those already 

here illegally—observed the same, taking issue with O’Brien’s characterization that employers are motivated by 

a desire to drive immigrant workers out of the workplace. Testimony of Linda Chavez, Briefing Trans. at 95. 

To the contrary, Ms. Chavez observed: 

And I would say that quite to the contrary, that certainly in large sectors, which I am familiar 

with, because I happen to sit on some corporate boards that employ large numbers of foreignborn persons, that there is a frustration on the part of many employers that Congress has not 

moved to, in fact, enact comprehensive immigration reform, because they are desperate for 

workers, many of whom don't speak English, and many of whom were born outside the 

United States. So this idea that there is this large scale move, I don't think is accurate. 

Id. at 94. 

I would have very much liked to have asked Ms. O’Brien about this assertion, which the dissent now relies 

upon as evidence, but she was one of two witnesses who was scheduled to speak in favor of the EEOC’s 

position on English in the workplace language policies who cancelled her scheduled appearance before the 
114 Commissioner Statements 

dissenting Commissioners ignore common sense176 and do little to elevate the discussion 

above the usual ideological divisions to search for consensus. Their views are unsupported 

by the briefing record, witness testimony or available EEOC data.177 Accordingly, it would 

be a mistake to view English-in-the-workplace policies through the dissent’s (and the 

EEOC’s) distorted lens. 

While language bears some relationship to national origin, neither Congress nor the Supreme 

Court has deemed it a sufficient proxy for national origin such that language is automatically 

considered a “protected class” under Title VII. Under Title VII of the Civil Rights Act (and 

its subsequent amendments), Congress prohibited discrimination in employment on the basis 

of race, color, religion, sex and national origin. Though “national origin” is not specifically 

defined in the statute, the legislative history of the Act’s adoption indicates that Congress 

contemplated a very narrow definition of the term.178 Relevant Supreme Court precedent 

 Commission at the very last minute the night before the briefing. Ms. O’Brien cited “panel balance concerns” 

as her rationale for cancellation, despite the fact that the briefing would have been evenly balanced had she and 

Laura Brown of the D.C. Employment Justice Center appeared as scheduled. In short, her withdrawal (and that 

of Ms. Brown) provoked the very problem she alleged. 

The dissent is critical of the briefing panel’s composition. Dissent at 86-87. 

It is worth pointing out to some of the newer Commissioners that in both the English Language and STEM 

briefings, briefing witnesses whose participation would have likely guaranteed the Dissent’s dissent’s desire for 

more sufficiently diverse viewpoints accepted staff invitations to participate in the briefings as panelists only to 

pull back from participating late in the planning process. The circumstances surrounding these often lastminute withdrawals are, at the very least, curious. 

I also note that the Commission issued a total of ten invitations to groups who might have more fully discussed 

the issue of national origin discrimination that the dissentdissent wished had been more fully developed in the 

record. See Briefing Trans., at 10-12. All told, eight of the those ten invited declined to attend; two committed 

and then withdrew. Id. By contrast, the Commission invited four witnesses that the dissent mischaracterizes as 

“a narrow and overlapping set of English-only proponents.” Those witnesses were simply proponents of an 

EEOC policy that better reflects the delicate balance struck in Title VII between an employer’s control over its 

workplace and the federal government’s efforts to ensure nondiscrimination. 176 For example, it makes little sense to presume that an employer who hires immigrants would then adopt an 

English language policy out of anti-immigrant animus. 

177 For example, as a percentage of total national origin discrimination charges received, charges implicating 

English-only rules are actually few and have remained relatively constant in terms of real numbers over the past 

ten years. Then General Counsel of the EEOC, Reed Russell, revealed during the Commission’s 2008 briefing 

that “during the past 10 years, EEOC received an average of about 180 charges per year challenging Englishonly policies. This constitutes only about two-tenths of 1 percent of total charges filed with EEOC during the 

same time period.” USCCR, Briefing on Specifying English as the Common Language of the Workplace (Dec. 

12, 2008), Testimony of Reed Russell, General Counsel, EEOC. Briefing Trans. at 60-61, 99. See also Email 

of Ernest Haffner, Senior Attorney Advisor, EEOC, to David Blackwood, Attachment: Charges Accountable to 

EEOC Filed 01/01/97 through 12/10/08, Disposition as of 12/10/08 (Dec. 10, 2008) and Equal Employment 

Opportunity Commission, National Origin Charge Statistics FY1997-FY 2010, 

http://www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm (last visited Apr. 15, 2011). 178 See 110 Cong. Rec. 2549, 2550 (1964) (Statement of Rep. Roosevelt) (emphasizing a narrow definition of 

national origin as “the country from which you or your forebears came from”). See also James Leonard, 

Bilingualism and Equality: Title VII Claims for Language Discrimination in the Workplace, 38 U. MICH. J.L.

REFORM 57, 101 (2004) (“Language is not mentioned in the text of Title VII. . . .One can fashion arguments in 

the abstract that there is a relationship between an immigrant’s country of origin and his primary language. 

There is scant evidence, however, that the enacting Congress entertained them.”). 
English Only Policies in the Workplace 115

further supports a narrow construction of “national origin,” which the Court held refers to 

“the country where a person was born, or, more broadly, the country from which his or her 

ancestors came.”179 Subsequent amendments to the statute have not resulted in the addition 

of “language” or “language choice” to the list of classes protected under Title VII. 

 

Thus, while I grant the dissent’s assertion that there is some “relationship”180 between 

language and national origin, that connection is not sufficient in and of itself to render the 

terms interchangeable for purposes of Title VII. Nonetheless, the EEOC, which the dissent 

concedes has no rulemaking authority under Title VII by deliberate design of Congress,181

promulgates Guidelines that treats the terms as if they are synonymous, thereby binding 

employers who are not in a position to risk litigation. At best, the equation of English-usage 

with national origin discrimination is highly problematic. As others have cogently argued, 

one’s national origin and his or her ability to speak English are two separate and distinct 

qualities.182 For example, “some people of a particular national origin will not be able to 

speak English well, but others will. Conversely, some people not of that particular national 

origin will also not be able to speak English very well.”183 It is on this basis that the vast 

majority of federal courts to consider the question have either rejected the EEOC’s 

Guidelines outright or rejected their underlying presumption of national origin 

discrimination.184

Another critical feature distinguishing language from national origin is that while the latter is 

immutable, the former is something that can be acquired or improved over time with a bit of 

effort. The fact that language is not fixed at birth like race, gender or national origin renders 

it even less likely that Congress intended for language to be automatically treated as a proxy 

for national origin discrimination under Title VII. 

Consider the Supreme Court’s decision in Espinoza v. Farah Manufacturing Co.,

185 in which 

Justice Marshall, writing for an 8-1 Court majority, held that an employer did not engage in 

national origin discrimination where it refused to hire a non-citizen. In that decision, the 

Court rejected the EEOC’s equation of “national origin” with United States citizenship.186 In 

so doing, it flatly rebuffed the agency’s attempt to ban U.S. citizenship preferences in 

employment on the grounds that such preferences would have a disparate impact on the basis 

of national origin.187 It stands to reason, then, that an employer’s specification of English as 

the language of the workplace (which in effect “discriminates” against all foreign languages, 

 

179 Espinoza v. Farah Manufacturing Co., 414 US. 86, 88 (1973). 180 Dissent at 85. 181 Dissent at 87, n.132. 182 Letter from Roger Clegg & Edward Blum to Merrily Friedlander, U.S. Department of Justice, Regarding 

DOJ’s Guidance on Title VI and Its Prohibition Against National Origin Discrimination at 3 (Feb. 14, 2002), 

available at www.ceousa.org/content/view/338/96/ (hereinafter “Clegg & Blum Letter”). 183 Id. 184 The dissent is critical of the Commission’s Finding #2, alleging that it mischaracterizes the extent to which 

the EEOC Guidelines carry weight in courts of law. But the fact that a Court may credit the Guidelines in 

determining legislative intent under Title VII does not confer upon those Guidelines the force of law, especially 

where Congress explicitly restricted the EEOC’s ability to promulgate regulations. 185 414 U.S. 86 (1973). 186 Id. at 94. 187 Id. at 92-95. 
116 Commissioner Statements 

just as the citizenship preference in Espinoza “discriminated” against all foreigners) is not 

properly considered national origin discrimination.188 “It would seem to follow that 

discrimination against all foreign languages doesn’t violate the law; only discrimination 

against a language associated with a particular national origin.”189

The dissent’s reliance on Lau v. Nichols190 is thus largely beside the point. There, the Court 

held that a school district’s failure to provide language assistance to non-English speaking 

children violated the nondiscrimination requirements imposed by the Department of Health, 

Education and Welfare through regulations promulgated under Title VI. Justice Blackmun’s 

concurrence specifically limited the holding to the narrow facts of the case.191 So as a 

preliminary matter, it is not at all clear that Lau would apply to cases outside of the 

educational context or to circumstances outside of the receipt of federal financial assistance 

governed by Title VI; in fact, it seems most unlikely that it would. Perhaps most 

importantly, the dissent’s reliance on Lau obscures the actual circumstances under which 

most workplace English language policies operate. The vast majority of English workplace 

policies challenged by the EEOC do not apply as in situations like in Lau (where the children 

spoke no English at all), but to circumstances where employees are bilingual and their ability 

to speak the preferred language of their choice in the workplace (equally applied to all 

bilingual employees, regardless of national origin) is actually what is governed by the 

employer’s language policy.192 

The Commission’s findings and recommendations do not at all discount the possibility that 

an ill-intentioned employer might use English-language rules to harass, embarrass or exclude 

employees or applicants on account of their national origin. Such conduct, if shown by a 

preponderance of the evidence, would be prohibited under Title VII. Our disagreement with 

the EEOC Guidelines, and by extension with the dissent’s uncritical embrace of those 

Guidelines, is with their treatment of English-language rules as presumptively invalid. In so 

doing, the EEOC’s Guidelines adopt a burden-shifting scheme that differs in significant 

respects from that which Congress adopted in the Civil Rights Act of 1991, which codified 

the four-part disparate impact burden-shifting analysis enunciated in Griggs v. Duke Power 

Co.193 

Under Title VII, employment practices that have a disparate impact are unlawful only if “a 

complaining party demonstrates that a respondent uses a particular employment practice that 

causes a disparate impact on the basis of race, color, religion, sex, or national origin and the 

respondent fails to demonstrate that the challenged practice is job related for the position in 

question and consistent with business necessity. . . .” 42 U.S.C. § 2000e-2(k) (emphasis 

added). 

 

188 See Clegg & Blum Letter, supra note 8 at 4. 

189 Id.

190 414 U.S. 563 (1974). 

191 Id. at 571-72. 

192 See Transcript, USCCR Briefing on Specifying English as the Common Language of the Workplace (Dec. 

12, 2008), Oral Testimony of Reed Russell, General Counsel, EEOC, at 18 available at

http://www.usccr.gov/calendar/trnscrpt/121208ccr2.pdf. 

193 401 U.S. 424 (1971). 
English Only Policies in the Workplace 117

Utilizing the standard set forth in Griggs, to establish a prima facie case of discrimination, a 

plaintiff must demonstrate that the employer maintains an English-only policy that has the 

purpose or effect of discriminating in the terms, conditions or privileges of employment 

against members of a protected class, regardless of the employer’s intent. The harm must be 

sufficiently severe to alter the plaintiff’s terms and conditions of employment or those of 

members of plaintiff’s protected class. Once this evidentiary burden is met, an employer can 

offer as an affirmative defense a valid business necessity for its policy. If the employer can 

prove business necessity, the burden of proving a Title VII violation then shifts back to the 

plaintiff to show that the employer can fulfill the business necessity with more narrowly 

tailored alternatives than its English-language policy. 

Ignoring the unequivocal intent of Congress to codify the disparate impact analysis set forth 

in Griggs in the 1991 Civil Rights Act,194 the EEOC Guidelines turn Griggs’ carefully 

crafted burden-shifting scheme on its head. Under the EEOC’s formulation, an employment 

policy that requires employees to speak English at all times is treated, without any further 

analysis, as a “burdensome term and condition of employment” and is thereby treated as a 

presumptive violation of Title VII.195 In practical effect, the EEOC relieves the plaintiff of 

the burden of demonstrating that he or she is part of a protected class and that the employer’s 

English policy caused actual, severe harm sufficient to alter the terms and conditions of 

employment of members of the plaintiff’s protected class and not just employees more 

broadly. Then, the EEOC essentially tells employers that no business necessities exist that 

can justify blanket workplace English-only rules. Employers may only adopt more limited 

English-only language policies (i.e. those that apply while on the assembly line, but not in the 

break room) if they can show that their policy is justified by a valid business necessity and 

they provide their employees with adequate notice of their adoption of such a policy.196

But as Commissioners Gaziano and Heriot adequately chronicle, there are numerous, 

legitimate, non-discriminatory business reasons that might necessitate an employer’s 

adoption of even blanket English-language workplace policies of the type that are basically 

forbidden outright by the EEOC.197 One such reason is so that an employer might comply 

with Section 5(a)(1) of the Occupational Safety and Health Act, also known as the General 

Duty Clause, which speaks to workplace safety. Under the General Duty Clause, an 

employer has an affirmative duty to furnish its employees with a workplace free from 

recognized hazards that cause or are likely to cause death or serious physical harm.198 

 

194 For a fuller discussion of this issue, and of the careful balance that Congress intended to strike under Title 

VII between preventing discrimination and preserving the independence of the employer, see Melissa Meitus, 

English Only Policies in the Workplace: Disparate Impact Compared to the EEOC Guidelines, DEN. UNIV. L.

REV. 901, 919-21 (Sept. 2005-2006). 

195 29 C.F.R. § 1606.7(a) 

196 Id. at 1606.7(b)-(c). 

197 For example, Commissioner Gaziano envisions a circumstance in which an employer might institute a 

blanket English language workplace policy to remedy racial and sexual harassment that has created a hostile 

work environment. See Concurring Statement of Commissioner Gaziano at 1-2 (arguing that if an employer 

becomes aware of harassing conduct, but does nothing to remedy it, the employer could be liable for such 

conduct). Indeed, Mr. Kidman of RD’s Drive In testified before the Commission to exactly this situation. 

Briefing Trns. at 45-49 

198 Section 5(a)(1) of the General Duty Standard reads: “Each employer shall furnish to each of his employees 

employment and a place of employment which are free from recognized hazards that are causing or are likely to 
118 Commissioner Statements 

Section 5(a)(1) is broad and all-encompassing. It covers the workplace generally, not solely 

when workers are on duty. If applied as the EEOC intends, the Guidelines would have the 

perverse effect of rendering English-language workplace requirements adopted for the 

purposes of complying with the General Duty Standards invalid. 

Accordingly, one negative unintended consequence of the Guidelines is that they have the 

effect of discouraging employers from proactively assessing workplace safety (or other) 

challenges and adopting policies directed at avoiding those challenges for the benefit of all 

their employees. The Guidelines’ rigidity do not permit appropriate distinctions to be drawn 

between circumstances where an employer adopts an English language policy to harass, 

embarrass or exclude employees or applicants and when that employer is simply acting in the 

best interests of all its employees. The EEOC’s position makes it exceedingly difficult for 

small and medium-sized employers to defend their discretion over the workplace because 

they cannot afford the litigation or negative publicity that often accompanies it. Regardless 

of the merits of their case, the costs of litigation drive many employers to simply settle with 

the EEOC rather than undergo the burdens of protracted litigation and the danger of the 

EEOC launching a public relations war.199

It is also not difficult to imagine how the existence of two separate standards (the EEOC’s 

and Title VII’s) might create confusion for an employer earnestly wishing to ensure that it is 

complying with Title VII. This is all the more true for small businesses that typically lack 

the resources to hire attorneys and human resource specialists to ensure proper compliance 

with Title VII. The dissent sidesteps this EEOC-generated confusion all together. 

The preceding discussion amply illustrates how both the fact of the EEOC’s promulgation of 

“Speak English Only” Guidelines and the substance of the Guidelines, themselves, exceed 

the bounds of the text and Congressional intent behind Title VII (including its subsequent 

modifications), as well as applicable case law. The dissent admonishes us to uncritically 

accept such guidance, preferring to rely instead on the faulty, if consistent position of the 

EEOC through three successive administrations.200 Espinoza is again instructive. There, the 

Court held that where the EEOC’s interpretation of “national origin” exceeded Congress’ 

actual intent to address the employment practice in question, its guidance was wrong and the 

courts need not be bound by it.201 

Although the Chevron doctrine entitles an agency’s administrative guidelines to considerable 

weight, “the Court has also ‘consistently held that there are limits on an agency’s power to 

issue regulations’ and ‘that this power is extremely limited when an agency tries to modify or 

 cause death or serious physical harm to his employees.” Occupational Health and Safety Act, 29 U.S.C. § 

654(a)(1) (2010). 

199 See Testimony of K.C. McAlpin, Briefing Trns. at 43 (discussing the Kidmans’ experience upon having been 

sued by the EEOC) (“The Kidmans' case is, unfortunately, typical of the way the EEOC operates. Even when 

an employer goes to court and wins, they can't recover their legal costs in most circumstances, so the EEOC 

uses its superior resources to intimidate employers, exhaust their resources, and force them to accept a 

settlement that allows them to accept a settlement that allows the EEOC to claim a public relations victory.”). 200 Dissent at 86. 201 414 U.S. at 94-95 (“Courts need not defer to an administrative construction of a statute where there are 

compelling indications that it is wrong.”). 
English Only Policies in the Workplace 119

 

change the meaning of the statute.’”202 Thus, if courts are not bound to give substantial 

weight to the EEOC Guidelines when it attempts to graft onto Title VII standards or legal 

theories the statute does not contain, then this Commission, which is independently charged 

with assessing federal agencies’ civil rights enforcement efforts and policies and making 

recommendations regarding same, can afford the Guidelines even less weight. In fact, we 

need not afford the Guidelines any weight at all. 

202 Natalie Prescott, English Only At Work, Por Favor, 9 U. PENN. J. LAB. & EMP. L. 445, 461 (2007) (citations 

omitted).