Via Turley, the EEOC has charged Wisconsin Plastics, Inc., with discriminating against Hmong and Hispanics in violation of Title VII of the Civil Rights Act of 1964 for firing employees for not speaking English in the workplace.
EEOC Chicago Regional Attorney John C. Hendrickson stated that “Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable,. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”
The EEOC said that the action was taken after relatively short interviews to judge the English ability of the employees. In 2009 the agency issued a controversial order making a workplace English rule illegal.
The English rule has been a hot button issue for a long time, as a facile way to use a putatively benign job requirement to conceal unlawful discrimination. The story has some huge background gaps, such as why the company hired the people they are now accused of discriminating against in the first place if its purpose is to rid itself of the suspect class. The flip side is that the company should have been fully capable of assessing their language skills at the time of hiring, rather than after they were hired. But the issue is far larger than WPI.
The EEOC took the controversial position that an English-speaking requirement is presumptively discriminatory, thus placing the onus on the business to prove that it’s a bona fide occupational qualification. Is it “required for the safe and effective performance of a job, [ ]or for the successful operation of the employer’s business”? Notably, that customers prefer it does not constitute a BFOQ.
There are hard reasons to require an employee to be capable of communicating with his employer, such as safety and basic effectiveness in job performance. Certainly, no one wants an employee to lose a hand in a machine because he can’t understand how to use it properly. Similarly, no one wants an employee answering telephones who can’t communicate with callers so that his core job function is utterly pointless.
But there are softer reasons as well. The time it takes for a supervisor to explain a job to an hourly worker is money lost in translation. The explanations tend to be “dumbed down” to facilitate cross-language communication of necessity, and may fail to suffice to the level of quality expected and needed.
Then there are issues of non-core communications. I had some guys at SJ World Headquarters last week fixing some broken slates on the roof, none of whom spoke English. They walked along the Yankee gutters to do their repairs. While the repairs appeared fine, walking along the Yankee gutters was a big problem, as they aren’t intended to hold a man’s weight and can be easily damaged. I tried to explain to them that I didn’t want them doing so, but they smiled, said “yes,” and continued to do exactly as they did before. I was not pleased, but their core job was to repair slates, and that didn’t require them to speak English.
The question of English in the workplace (or Spanish, for example, in a workplace with different needs) has good reason to be subject to hard scrutiny. It’s a superficially reasonable requirement that can be easily used to conceal discrimination. The problem is that determining what constitutes a BFOQ is often a matter of personal sensibilities, whether someone more attuned to the interest of ending discrimination sees the requirement as truly necessary as opposed to the employer, whose interest is in running a successful business.
For the employer, some have no qualms about using labor that may not have the ability to speak English, as immigrant labor tends to be less costly and more available. There are a great many low wage jobs, unpleasant jobs, that Americans tend not to want. Non-English speaking workers are happy to take the jobs, and employers are happy to have them to keep costs down.
However, others see this scenario as abusive toward non-English speaking workers, who may desperately need employment and find themselves forced to take low-wage jobs under harsh working conditions. Of course, but for this reality, the costs of goods and services would make many businesses untenable. It’s a delicate balance under the best of circumstances.
For the employer who believes that English-speaking (or Spanish-speaking, if that’s the need) best serves to facilitate the effective performance of the job, should someone at the EEOC stick their nose in and decide how the employer should run his business? Should it really be up to someone who has little clue of a business’ needs, nuances, and efficacy to dictate the qualifications for a position? Will the EEOC be there when a business fails for having been forced to hire or retain a workforce that can’t serve to perform the job, satisfy the customers, fulfill the quality demands of the employer?
No one suggests that discrimination on the basis of national origin (or any other suspect classification) is acceptable. But given the influences of the marketplace for human capital, should a government agency trump an employer’s discretion when it comes to what the employer wants of his employees?
In 1964, when Lyndon Johnson pushed the Civil Rights Act through Congress, this was a different country, deeply steeped in discrimination to the extent that businesses normally cut off their nose despite their face when it came to refusing to hire workers based on race, ethnicity, national origin, gender and other immutable and irrelevant factors.
To some extent, we gotten beyond the worst of it, though discrimination unquestionably remains. Is it still worth the cost to a viable business, a viable economy, to lump the ability to communicate into the list of presumptive discrimination? Probably, but it’s also time to give greater latitude to employers to fix the communication requirements of employees. No matter how deeply one wants to end discrimination, the inability to communicate creates a stranglehold on business that can’t be denied or ignored. In the quest to end discrimination, we can’t end the ability of businesses to function effectively as well.