English Only Policy Supports Claims for Disparate Impact, Disparate Treatment, Intentional Discrimination and Violation of Equal Protection
After the City of Altus, Oklahoma, implemented an “English-only” policy for its employees because “other employees could not understand what was being said on the City radio” when Hispanic employees spoke in Spanish to one another, plaintiffs filed a putative class action asserting numerous discrimination-based claims. Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006). The district court granted the defense motion for summary judgment with respect to all claims advanced by the class action plaintiffs. The Tenth Circuit affirmed the ruling in part, but permitted the class action to proceed on several key grounds because it found a triable issue of fact as to the allegations of “disparate impact and disparate treatment under Title VII; intentional discrimination under [42 U.S.C.] § 1981; and violation of equal protection under 42 U.S.C. § 1983.” Maldonado, at 1298. We provide but a cursory review of the opinion here; a link to the detailed opinion may be found at the end of the article.
Cutting to the chase, in analyzing the class action claims the Tenth Circuit explained that “disparate-impact claims ‘involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.’” Maldonado, at 1303 (quoting Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843 (1977) (italics added)). The Court further explained that in considering whether a plaintiff’s lawyer has established a prima facie case of disparate impacts (whether in class actions or otherwise), the Court employs a sliding scale: “The less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language.” Maldonado, at 1305. Maldonado held that a prima facie case existed: “Here, the very fact that the City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions.” Id.
The Tenth Circuit also rejected the district court’s conclusion that the City had established a business necessity for the new policy. The district court found
“that city officials had received complaints that some employees could not understand what was being said on the City’s radio frequency because other employees were speaking Spanish … [and] that city officials received complaints from non-Spanish speaking employees who felt uncomfortable when their co-workers spoke Spanish in front of them.” [Citation.] Based on these justifications, it concluded that “Defendants have met any burden they may have to demonstrate that the City’s English-only policy was supported by an adequate business justification.” [Citation.]
Maldonado, at 1306. The Court disagreed, citing Supreme Court authority that business necessity must be related to job performance. Id. (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849 (1971)). In this regard, the Circuit court charitably observed, “Defendants’ evidence of business necessity in this case is scant.” Id. Reversal was required, therefore, because “[a] reasonable person could find from this evidence that Defendants had failed to establish a business necessity for the English-only rule.” Id., at 1307.
The decision discusses several employment law claims, affirming summary judgment as to claims alleging inter alia retaliation and violations of the First Amendment, and reversing as to claims alleging inter alia intentional discrimination and violation of equal protection. A comprehensive discussion of the opinion is beyond the scope of this article, but the opinion may be found in full below.
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