Gutiérrez v. Municipal Court

838 F.2d. 1031 (9th Cir. 1988)<1>

When it was delivered in 1988, this ruling by the 9th U.S. Circuit Court of Appeals had a dual significance. It both outlawed arbitrary English-only rules in the workplace and declared that Proposition 63, California's Official English declaration was "primarily a symbolic statement." Because the decision was vacated by the U.S. Supreme Court the following year (not on its merits, but because the plaintiff no longer had standing) Gutiérrez lacks precedential value. Nevertheless, it suggests how federal courts might view similar cases in the future. At issue was a speak-English-only rule for municipal court clerks in Huntington Park, California. Ironically, the clerks whose speech was most affected had been hired for their bilingual skills, which they used to translate for Spanish-speaking members of the public. At all other times, except for lunch and coffee breaks, they were required to speak English. Citing guidelines of the federal Equal Employment Opportunity Commission (E.E.O.C.), the court held the English-only policy to be illegal national-origin discrimination.

It is worth noting, however, that another federal appeals court took a conflicting view of similar issues in García v. Gloor, a case that predates the E.E.O.C.'s policy.<2> In addition, a minority of the 9th Circuit judges questioned the reasoning of the Gutiérrez decision, as revealed by their comments on a procedural motion. Judge Stephen Reinhardt delivered the court's opinion in the case, on behalf of a unanimous three-judge panel, on January 27, 1988.

Few courts have evaluated the lawfulness of workplace rules restricting the use of languages other than English. Commentators generally agree, however, that language is an important aspect of national origin. The cultural identity of certain minority groups is tied to the use of their primary tongue. The mere fact that an employee is bilingual does not eliminate the relationship between his primary language and the culture that is derived from his national origin. Although an individual may learn English and become assimilated into American society, his primary language remains an important link to his ethnic culture and identity. The primary language not only conveys certain concepts, but is itself an affirmation of that culture.

From the standpoint of the Anglo-American, another person's use of a foreign language may serve to identify that individual as being of foreign extraction or as having a specific national origin. Because language and accents are identifying characteristics, rules which have a negative effect on bilinguals, individuals with accents, or non-English speakers, may be mere pretexts for intentional national origin discrimination.

Although Title VII [of the Civil Rights Act of 1964] does not specifically prohibit English-only rules, the E.E.O.C. has promulgated guidelines on the subject.<3> The E.E.O.C. recognizes that "[t]he primary language of an individual is often an essential national origin characteristic," and that an English-only rule may "create an atmosphere of inferiority, isolation, and intimidation." Although an employer may have legitimate business reasons for requiring that communications be exclusively in English, an English-only rule is, according to the E.E.O.C., a burdensome condition of employment that is often used to mask national origin discrimination and that must be carefully scrutinized. Accordingly, the E.E.O.C. concluded that while a limited English-only rule may be permissible in some circumstances, no such rule will be deemed lawful unless the employer can show that it is justified by business necessity and notifies the employees "of the general circumstances when speaking only in English is required and of the consequences of violating the rule." ...

[T]he English-only rule in the case before us is concerned primarily with intra-employee conversations, work-related and non-work-related. It is in no way limited to the sale or distribution of the employer's product and there is no contention that the employees' conversations among themselves in Spanish have any effect on those who use the courts. Yet, the prohibition on intra-employee communications in Spanish is sweeping in nature and has a direct effect on the general atmosphere and environment of the work place. ...

[A]ppellants contend that the rule is necessary to prevent the workplace from turning into a "Tower of Babel." This claim assumes that permitting Spanish (or another language) to be spoken between employees is disruptive. Even if appellants' unspoken premise were true, the argument fails. ... Since Spanish is already being spoken in the Clerk's office, to non-English-speaking Hispanic citizens, part of the "babel" that appellants purport to fear is necessary to the normal press of court business. Additional Spanish is unlikely to create a much greater disruption than already exists. Because the "babel" is necessary and has an apparently permanent status, its elilmination in the area of intra-employee communication cannot be termed essential to the efficient operation of the Clerk's office. ...

[A]ppellants assert that the rule is necessary to promote racial harmony. They contend that Spanish may be used to convey discriminatory or insubordinate remarks and otherwise belittle non-Spanish-speaking employees. Appellants, however, have failed to offer any evidence of the inappropriate use of Spanish. In contrast, there is evidence indicating that racial hostility has increased between Hispanics and non-Spanish-speaking employees because Hispanics feel belittled by the regulation. There is also evidence that non-Spanish-speaking employees have made racially discriminatory remarks directed at Hispanics. As the E.E.O.C. has warned, prohibiting the use of the employees' native tongue may contribute to racial tension. Appellants' argument that the English-only rule fosters racial harmony is unsupported by the evidence and is otherwise generally unpersuasive.

Appellants further contend that whatever the actual facts may be, non-Spanish-speaking employees believe that Spanish-speaking employees used Spanish to conceal the substance of their conversations and that the English-only rule is necessary to assuage non-Spanish-speaking employees' fears and suspicions. Appellants' contention is based on a single complaint allegedly made by an employee, a complaint based, at most, on suspicion. ... However, even if there were evidence that a regulation mandating the use of English during working hours would calm some employees' fears and thereby reduce racial tension to some extent, this would not constitute a business necessity for a rule that has an adverse impact on other persons based on their national origin. Existing racial fears or prejudices and their effects cannot justify a racial classification.<4> ...

Next, appellants argue that the English-only rule is required by the California Constitution. Appellants assert that [Article III,] section 6, added by the voters as a ballot initiative in 1986, requires the use of English in all official state business, and thus requires Hispanic employees to communicate in English while at work. Appellants' argument is unpersuasive. ... While section 6 may have some concrete application to official government communications, if and when the measure is appropriately implemented by the state legislature, it appears otherwise to be a primarily symbolic statement concerning the importance of preserving, protecting, and strengthening the English language. ...

Although the precise question of private conversations among public employees was not addressed in the ballot arguments, it appears that the distinction the proponents attempted to draw was between official communications and private affairs. While the initiative addressed, and arguably may have sought to regulate, the former subject, most if not all of the speech barred here would fall in the latter category. ... [I]ronically, while the English-only rule at issue here totally bars private speech in Spanish during on-duty periods, use of the Spanish language for official communications is not only permitted by the government employer, but in a large number of instances is expressly mandated.<5> ...

English-only rules generally have an adverse impact on protected groups and ordinarily constitute discriminatory conditions of employment. Here, none of the justifications appellants offer for their English-only rule meets the rigorous business necessity standard. ... [W]e note that the district court's injunction is more favorable to the employer than the business necessity test permits: the injunction allows restrictions to be imposed based on public relations concerns. Public relations concerns do not constitute a business necessity. If such concerns were sufficient, a major goal of Title VII would be thwarted because employers would be free to consider public prejudices when setting employment policies. ...

A majority of 9th Circuit judges declined to rehear the Gutiérrez case en banc, that is, as a full court. Three dissenting judges, who favored reviewing the decision, voiced substantive objections to the panel's ruling. Their rationale was expressed in an opinion by Judge Alex Kozinski, an excerpt of which follows.

By any rational standard, this case cries out for en banc reconsideration. The panel's opinion creates a square conflict with the Fifth Circuit's opinion in García v. Gloor. The panel also buries a prior opinion of this circuit whose holding is directly contrary.<6> Perhaps most disturbing, the panel reaches a result that severely undermines the principal goal of the Civil Rights Act of 1964, equal opportunity in the workplace. By giving employees the nearly absolute right to speak a language other than English, the panel's opinion will exacerbate ethnic tensions and force employers to establish separate supervisorial tracks for employees who choose to speak another language during working hours. This is not what the Civil Rights Act was meant to accomplish. ...

We need not trot out a parade of horribles; this case illustrates the problem effectively enough. The case arises out of racial and ethnic tensions among the employees of the Southeast Los Angeles Municipal Court, largely between blacks and Latinos. The English-only rule was not adopted by the Municipal Court judges out of xenophobia, but in response to a "complaint from a black female employee concerning the use of the Spanish language between employees in order to conceal the substance of conversation during working hours on the work floor. ..." The rule was also intended to assist "supervisors to understand the work conversations of their subordinates. ..."<7>

The rule was adopted because [according to the Los Angeles Times, April 11, 1985, pt. IX, p. 1] "several of the 27 full-time clerks, including Anglos, blacks, and even some Latinos complained that a handful of Latino clerks were increasingly using Spanish to cloak their conversations and occasionally made it clear that they were discussing co-workers." One employee reported a particularly distressing incident:

    Suzanne Cook, a black employee who was among the first to complain about the use of Spanish ... recalled a day at work when she tripped or dropped something "and the banter in Spanish really got going, and it was obvious that they were laughing at me for doing something stupid."

    If she had understood their jokes, she said, "it wouldn't have been a real big thing, because I would have just shot a comment back. But instead I had to keep it inside, and that was incredibly frustrating. After months of that kind of tension, I was looking for a new job."

The English-only rule had broad employee support. The record contains a letter, signed by eight employees who were concerned that the rule might be overturned:

    If the [Municipal Court] Judges ruling is overturned it will have an adverse effect. Spanish is not essential when relating to fellow employees, and in many cases is used to undermine supervision and to talk about fellow employees. Feelings are hurt and tension builds. This is when employee camaraderie and morale begin to deteriorate. ...

    The ruling was initially intended to create a more harmonious working atmosphere for all employees. It has now been turned into an issue of ethnic background and civil rights. In reality the only issue is common courtesy.

The question of what authority an employer has to address language-related tensions in the workplace is one of exceptional importance. As sad experience elsewhere has shown, language can be a potent source of racial and ethnic discrimination, exacerbating geographic, cultural, religious, ethnic and class divisions. In Canada, for example, the bitter mutual resistance of French- and English-speaking citizens toward one another's language has taken on the characteristics of a racial confrontation.<8> Other examples abound: The long-standing divisions between the French-speaking Walloons and the Flemish-speaking population of Belgium and the "language demands" in various regions of India reflect linguistic as well as class and ethnic divisions of the most invidious sort.Several commentators note that language differences have become emblems of class as well as ethnic group membership; often the dispute over dialect or language choice disguises deeper racial or religious division.<9> The separatist movements by the Corsicans of France, the Basques of Spain, the Tamils of Sri Lanka, the Kurds of Turkey and Iraq, and the Sikhs of India have been reinforced and to some extent inspired by linguistic differences.<10>

Although the United States has become the home for people from all parts of the world, we have been spared much of the language-related agonies experienced elsewhere. A nation of immigrants, we have been willing to embrace English as our public language, preserving native tongues and dialects for private and family occasions. When employees bring their private language into a public workplace, this creates a difficult and sensitive problem for those around them who do not speak the language. Of course, where employees are unable to speak English, or where they are denied a benefit because they are identified with a particular language or ethnic group, the Civil Rights Act protects them; language is, for them, an immutable characteristic. But where employees are perfectly capable of speaking English, it is a much closer question whether they should be entitled to converse in another language during working hours while performing work functions. The right answer will vary with the particular fact situation and ought not to be set in concrete for all employers and all employees.

As this case illustrates, having employees use a language other than English can seriously undermine workplace morale. Here, the Municipal Court judges acted in response to a legitimate complaint by a black employee about what she believed were insulting comments made in a language she could not understand. An English-only rule may not make sense in all situations; sometimes it may be counterproductive, causing more hurt feelings than it saves. But it is highly unwise to prohibit all employers everywhere from adopting such a rule, even when they have reason to believe that language is being used to exclude and isolate employees of a particular race or ethnic group. Our society is too complex, and the factual permutations far too diverse, to permit the imposition of a universal rule by judicial fiat.

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' arguments 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 supervisory posts, Gutiérrez 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. ...

1. En banc rehearing denied, 861 F.2d 1187 (9th Cir. 1988), vacated as moot 109 S.Ct. 1736 (1989).

2. 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981); see analysis by Edward M. Chen.

3. 29 C.F.R. § 1606.7 (1987).

4. Palmore v. Sidoti, 466 U.S. 429, 433-34 (1984).

5. We also note that if the Municipal Court rule forbade communication in Spanish with the non-English-speaking public, serious questions of denial of access to the courts would be presented, and possibly other constitutional questions as well.

6. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987).

7. Declaration of Joseph Sharar, Chief Clerk and Court Administrator, Huntington Park.

8. See John Porter, "Ethnic Pluralism in Canadian Perspective," in Ethnicity: Theory and Experience, ed. Nathan Glazer and Daniel Patrick Moynihan (Cambridge, Mass.: Harvard University Press, 1975), p. 268.

9. See, e.g., Pierre L. van den Berghe, The Ethnic Phenomenon (New York: Praeger, 1987), p. 211 (arguing that the "real impetus to Québecois nationalism ... has been a class conflict in linguistic disguise"); William Petersen, "Subnations of Western Europe," in Glazer and Moynihan, pp. 198-208; Jyotirindra Das Gupta, "Ethnicity, Language Demands, and National Development in India," in Glazer and Moynihan, pp. 466-86.

10. See Donald L. Horowitz, Ethnic Groups in Conflict (Berkeley: University of California Press, 1985).