Testimony

Click here to view ProEnglish Executive Director K.C. McAlpin's oral testimony to the U.S. Civil Rights Commission about English-on-the-job rules. Click here for part two of the video with Richard Kidman, owner of R.D.'s Drive-Inn.

Good morning. My name is K.C. McAlpin. I am the executive director of ProEnglish, a national organization that advocates making English the official language of government and other policies to protect the role of English as the common unifying language of our country. ProEnglish relies on voluntary contributions from the public for our support.

I want to thank you for giving us the opportunity to comment on language in the workplace polices and specifically on the Equal Employment Opportunity Commission’s (“EEOC”) policy of targeting employers with English language workplace rules for prosecution under Title VII of the Civil Rights Act.

In 1980 without prior notice, consultation with, or authorization by Congress, the EEOC adopted guidelines that presume employers’ English-on-the-job rules have a disparate impact on the basis of national origin and therefore violate Title VII’s ban on national origin discrimination.

The EEOC formulated its Guidelines despite a 1973 court decision, Espinoza v. Farah Mfg. Co.,[1] which defined national origin as referring “to the country where a person was born, or more broadly, the country from which his or her ancestors came.” Moreover the same year they were issued the EEOC included its Guidelines in briefs before the Fifth Circuit U.S. Court of Appeals, which immediately rejected them twice. In Garcia v. Gloor (1980)[2] the Fifth Circuit held that “national origin must not be confused with ethnic or socio-cultural traits” and concluded the Equal Employment Opportunity Act does not support an interpretation that equates the language an employee prefers to speak with national origin. And, in 1981, in Vasquez v. McAllen Bay & Supply Co.,[3] the Fifth Circuit again rejected the Guidelines’ formula that language equals national origin and upheld an English-on-the-job rule for truck drivers.

But let’s step back for a moment and apply some common sense. We don’t need the courts to tell us that the language someone speaks and their national origin are distinct and different characteristics. Someone who speaks Spanish or Chinese as their native language may have been born in any number of different countries. On the other hand, someone could have a national origin of Nigeria or India, and speak any one of dozens of different languages as their native language. The equation of language and national origin is so over and under inclusive as to render it meaningless. More than one quarter of the member countries of the United Nations have designated English as an official language.[4] The EEOC’s claim that there is a “close connection” between language and national origin is absolute nonsense.

Yet despite this, and despite more than twenty court cases that explicitly reject the EEOC Guidelines,[5] the EEOC continues to act on its corrupt definition and target employers that have English language workplace rules for investigation, prosecution, and harassment.

The EEOC attempts to justify its illegal anti-English policy by using carefully worded half-truths, evasions, and distortions. Thus on its website, under the heading: Discriminatory Practices -- National Origin Discrimination, the EEOC states that “It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group” (emphasis added). Thus the EEOC adds broad and incomprehensible terminology to the accepted and well defined meaning of national origin, and substitutes “linguistic characteristics” for the clearly defined term “language,” which could be easily rebutted.

In another example, EEOC policy guidance on English language workplace policies state, “The primary language of an individual is often an essential national origin characteristic.” While that may have been true 500 years ago, in today’s world a person’s primary language is rarely an essential national origin characteristic. The fact is that language and national origin are distinct and almost entirely unrelated characteristics.

The EEOC Guidelines presume that employer English-on-the-job rules “when applied at all times” are a burdensome condition of employment that violate Title VII’s ban on national origin discrimination. But the definition of national origin the EEOC is using is totally flawed. It makes no difference whether such a rule is applied at all times or only at certain times because the EEOC: (1) has no basis to assert any violation of Title VII where language is concerned; and (2) even less right to presume an employer’s English workplace policy violates Title VII.

The EEOC Guidelines go on to say that even if an employer’s English language policy is applied only at certain times the employer must still show that the rule is justified by “business necessity.” The effect of this qualification is to give the agency the discretion to attack any English-on-the-job rule and burden the employer with having to demonstrate business necessity in court.

So, for example, when the EEOC sued the Sephora cosmetics store chain, the fact that Sephora’s policy was both narrowly tailored and limited did not stop the agency from filing suit [EEOC v. Sephora].[6]

In fact, the EEOC has been filing language discrimination cases against employers that do not even have an English-on-the-job policy. EEOC v. Spring Sheet Metal is a case in point. In EEOC v. Spring Sheet Metal the false allegations of an employee sent home for a display of out of control temper (after being instructed by a foreman about what tool to use), was sufficient to trigger an EEOC lawsuit alleging national origin (language) discrimination.

But court proceedings lag far behind the accompanying EEOC publicity campaigns that allege employers with language policies are guilty of civil rights violations. As the agency knows, such campaigns inflict serious damage to an employer’s reputation in their community and undermine their will to defend themselves in court.

In examining language in the workplace cases brought by the EEOC both the 5th Circuit and the 9th Circuit Courts of Appeals have ruled that the EEOC was acting ultra vires i.e. outside the scope of its statutory authority, or in layman’s terms, illegally. But the EEOC apparently thinks it is an agency unaccountable to congressional oversight and judicial authority. In a letter to Colorado Congressman Tom Tancredo dated Jan. 21, 2000, the EEOC says it “disagrees with the [9th Circuit] decision in Spun Steak,” and simply declared it was empowered to act as a court and make its own statutory interpretations.[7] In a breathtaking display of bureaucratic arrogance, the EEOC goes on to parse words, cite minority court opinions, and even cite selectively from adverse court decisions in order to justify its actions.[8]

Here is the bottom line. In thirty-five years of court rulings right up to the present there has not been one English language court decision favoring the EEOC that was ultimately upheld or which is controlling: not a single one that supports the EEOC’s language equals national origin formulation. And there have been only two instances in which a U.S. District Court agreed with the EEOC as compared to over twenty instances at the state, federal, and federal circuit courts, in which courts and judges have rejected the EEOC arguments.

Courts have long recognized an employer’s right to set the conditions of employment, including what employees can say on the job.[9] That right is also protected by Title VII, itself.[10]

By singling out employers with English language workplace policies for investigation and illegitimate civil rights prosecution the EEOC is violating an employer’s fundamental right to run their business successfully and in the best interests of themselves, their customers, and their employees. Certainly, in these trying times of economic uncertainty and high unemployment, employers must be free to make optimal business decisions without fear of unwarranted prosecution by an out-of-control federal agency.

In fact, if the EEOC’s language equals national origin formulation were true, the EEOC itself would be guilty of national origin discrimination because its Guidelines presume that only English language workplace policies are violations of Title VII. Thus, the EEOC claimed the Spun Steak Company’s English language policy on its dayshift was a violation.[11] But the Spanish language policy on its nightshift was not.

You have heard (or will hear) from Richard Kidman, the owner of RD’s Drive-In Restaurant, and the story of the EEOC’s unethical and unwarranted attack on this small business owner. I am familiar with the Kidmans’ case because ProEnglish was involved in helping the Kidmans defend themselves against an EEOC lawsuit.

You need to eat a green chili cheeseburger at RD’s Drive-In to understand the absurd lengths that the EEOC will go to pursue their illegitimate policy. Richard and his wife Shauna are small business heroes. Their drive-in restaurant, which grosses barely $700,000 a year, holds its own in the small town of Page, Arizona against competition from fast food giants like McDonalds, Burger King, and Taco Bell.

In 30 years of being in business RD’s has employed hundreds of local residents, the vast majority of whom have been Navajo. But in the year 2000, to protect their employees from harassment, including sexual harassment, they had no choice except to implement an English-language workplace policy. In so doing, they never guessed they would run afoul of a huge federal agency like the EEOC, with its thousands of employees and an annual budget of hundreds of million of dollars.

Here is a summary of what happened to the Kidmans after they put their language policy in place.

The Kidman’s litigation was not finally resolved until six years later in November 2006. By the terms of a court imposed settlement the Kidman’s admitted no guilt but were required to rescind their existing policy. However they retained the option of reissuing an English language workplace policy subject to EEOC review. They did this and today I’m happy to say that RD’s Drive-In Restaurant has a legal English language workplace policy in effect. In the meantime, the problems with employee on employee harassment they had previously experienced, as well as sky-high turnover and difficulty retaining employees have all but disappeared. And perhaps best of all, the people of Page Arizona can continue eating and enjoying RD’s green chili cheeseburgers.

In the end, the EEOC accomplished nothing by all its bullying, attacks, and unethical treatment of the Kidmans as employers and private citizens, not to mention the expenditure of hundreds of thousands of taxpayer dollars.

Unfortunately the Kidmans’ case is not an isolated example. It conforms to a clear pattern of intimidation, misuse of taxpayer money, and heavy-handed behavior that the agency uses again and again to enforce its illegitimate anti-English agenda.

Employers have many valid and compelling business reasons for implementing an English language workplace policy. They include:

Employers like the Kidmans are caught in an impossible situation. If they fail to take effective action to stop harassment including ethnic slurs and sexual harassment in languages other than English, they can be sued under Title VII for maintaining a hostile work environment. But if they take the common sense approach of implementing an English-on-the-job policy, they run the risk of attacks and prosecution by the EEOC.

And even if they fight the EEOC and win their case in court, they are unlikely to recover their legal expenses. Ken Bertlesen, the owner of the Spun Steak Company estimates it cost him and his brother $400,000 in legal fees and expenses to successfully defend themselves against the EEOC all the way through their 9th Circuit appeal.

The EEOC modus operandi is this. (1) Find a plaintiff.[14] (2) Conduct a one-sided investigation that assumes the employer is guilty. (3) Negotiate a settlement in which the employer admits no guilt but lets the EEOC claim victory and issue a news release to the media ballyhooing its accomplishment. (4) If the employer resists, file a lawsuit and issue a headline grabbing press release alleging national origin discrimination by the employer. (5) Bully the employer and wear down their will to resist by running up the employer’s legal bills and waging a public relations campaign attacking the employer as a “discriminator.” (6) Ultimately negotiate a settlement in which the employer admits no guilt but lets the EEOC to claim the “victory” it wants.

In the rare instances in which an employer has the resources and determination to fight the EEOC, the EEOC either loses at trial or agrees to settle the case on terms that vindicates the employer’s policy. Such was the case with the Sephora (cosmetics) Company whose English language workplace policy was upheld by a federal court in September 2005. And just recently, the EEOC was forced to back down and accept a humiliating settlement of its lawsuit against the Salvation Army that effectively recognizes the Army’s legal English-on-the-job policy.

But far more often, due to its vastly superior resources, the EEOC prevails – especially in actions against small employers – and is able to impose burdensome and costly settlements on employers who in actuality are in full compliance with the civil rights laws.

This should not happen in a free society. The EEOC is acting like a multicultural police force – writing its own laws, defying the courts, and using coercive tactics to impose its agenda on law abiding employers, and chilling their freedom to manage their own businesses.

By doing so, the EEOC is not only trampling on the rights of employers. It also is violating the civil rights of employees to work in a non-hostile environment, in which they are protected from racial and ethnic slurs and all forms of harassment including sexual harassment.

In conclusion we urge the Commissioners to condemn the actions of the EEOC which are infringing upon civil rights and which are especially dangerous because they are being committed by a government agency – the very agency created by Congress to safeguard the civil rights of all employees.

1. See references: Exhibit A.

2. Ibid.

3. Ibid.

4. 53 of 193 UN member nations according to Information Please Almanac, Ethnologue.com – project of SIL International, CIA World Fact Book – 2006, and UN member nation Internet websites.

5. See case references: Exhibit A.

6. Ibid.

7. Exhibit C. See also Exhibit B.

8. Ibid.

9. Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 1886 (1994) (employer may prohibit employees from cursing, and may require them to be polite to customers).

10. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (“preservation of an employer’s remaining freedom of choice” is an important aspect of Title VII of the Civil Rights Act).

11. The Spun Steak Company implemented its English language policy on its dayshift to stop ethnic slurs and harassment in Spanish that was being directed at its African-American and Asian-American employees and creating a hostile work environment for the company’s almost entirely minority work force.

12. Exhibit D.

13. “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.”—U.S. District Judge Stephen M. McNamee, Memorandum of Decision and Order, EEOC v. Kidmans, Sept. 14, 2004.

14. There is reason to think that EEOC attorneys actively search for and solicit workplace English policy plaintiffs. EEOC speakers at community outreach forums often make statements that amount to thinly veiled solicitations for plaintiffs.