New York Employment Lawyer Blog

David B. Grinberg, a spokesman for the EEOC in Washington, D.C., declined to comment on the amendment, saying the commission typically doesn’t comment on congressional legislation, including bill amendments.

But under EEOC guidelines, an English-only rule violates federal law unless the employer can provide a “legitimate business justification” for forcing employees to stop speaking their native language. Requiring English where no business necessity exists constitutes national origin discrimination under Title VII of the Civil Rights Act of 1964, according to the EEOC.

Sen. Barbara A. Mikulski, D-Md., opposed Alexander’s amendment, calling it “a very slippery slope” to dictate what the EEOC can litigate. In addition, she said, she “disapproved of a move to legislate on an appropriations bill,” said Melissa Schwartz, spokesperson for Mikulski.

The bill technically called for “no appropriated funds” to be used by the EEOC for pursuing such cases. The vote came the same day a sweeping immigration reform bill proposed by President Bush was voted down in the Senate.

Impetus for Amendment

Alexander’s actions were prompted by an April 2, 2007, suit filed by the EEOC against The Salvation Army in U.S. District Court in Massachusetts. The suit maintains that The Salvation Army discriminated against two Hispanic thrift store employees is Framingham, Mass., by requiring them to speak English on the job, then firing them when they didn’t.

Dolores Escorbor, a native of the Dominican Republic, and Maria del Carmen Perdomo, of El Salvador, were shown the door in December 2005. The suit said the employees “worked commendably and without incident for five years” before they were booted. Spanish is their native language, and both spoke little English.

“Employers should carefully scrutinize their English-only policies and English fluency requirements to ensure they are not discriminating against employees on the basis of national origin,” Spencer H. Lewis Jr., the EEOC’s New York district director, said in a statement.

The suit, which is pending, seeks monetary relief, an order requiring The Salvation Army to implement new policies and practices eradicating past discrimination, and a permanent injunction against similar offenses in the future.

In a statement issued in May 2007, The Salvation Army said it believes that there’s no legal basis for the complaint and that it has “longstanding national and international policies that denounce any form of discrimination based on ethnic origin, among other factors, whether in the provision of our religious and charitable services or in employment.”

Backlog of Cases

Alexander introduced the amendment at a Senate hearing in May, arguing in part that the EEOC should find better things to do. He said that not only does the EEOC have a backlog of about 56,000 cases, but also The Salvation Army in Massachusetts posted the language rule clearly and employees were given a year to learn the language.

His figure may be off, but the backlog is high nonetheless. Grinberg says preliminary data shows about 46,000 pending private-sector charges at the end of the second quarter of fiscal 2007, on March 31.

Alexander, a former U.S. secretary of education, has advocated for immigrant assimilation policies and efforts to help prospective citizens learn English. During the immigration debate in 2006, the Senate voted 91-1 to pass his “Strengthening American Citizenship Act.”

Among other things, the act would have provided education grants of up to $500 for English courses to legal immigrants who want to become citizens, and it would have allowed citizenship applicants who learn to speak English fluently to meet residency requirements after four years in the United States, rather than five.