Entire Brief -- Amicus Merits Brief

A classification is implicitly made, but it is on the basis i.e., English-speaking versus non-English-speaking

See also, Toure v. United States, 24 F.3d 444, 446 (2d Cir. Soberal-Perez").

§ 2000d, Pub. L. 88-352, Title VI, § 601, July 2, 1964, 78

Legislative History:

Legislative history does not support a language-based definition of national origin. This Court has noted that the legislative history concerning the meaning of national origin, even under statutory law, is "quite meager." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). Nevertheless, "[t]he terms ‘national origin’ and ‘ancestry’ were considered synonymous." 414 U.S. at 89. During debate on the 1964 Civil Rights Act, Representative Roosevelt stated: "May I just make very clear that ‘national origin’ means national. It means the country from which you or your forebears came from. You may come from Poland, Czechoslovakia, England, France, or any other country." 110 CONG. REC. 2,549 (1964).

This Court supports that assessment: "[t]he term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza, 414 U.S. at 88; see also, Pejic v. Hughes Helicopters, 840 F.2d 667, 672-73 (9^th Cir. 1988)(persons of Serbian national origin are members of

Administrative Interpretations:

As noted above, there are now three administrative interpretations which equate language and national origin. The oldest⁸ is the EEOC’s presumption against requiring the

⁸ The EEOC presented its proposed interpretive guidelines to the Fifth th Circuit), but the Fifth Circuit Garcia v. Gloor, 618 F.2d 264, 270 (5 th Cir. cert. denied, 449 U.S. 1113 (1981)("The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin."). Cong. Tancredo’s examination of the legal support for this interpretation and the EEOC’s detailed response.

use of English on the job. 29 C.F.R. § 1606.7. The newest are the interlocked Executive Order 13,166 (August 11, 2000) (reprinted in Supp. App. 10a - 13a), and the Justice Department’s Policy Guidance on National Origin Discrimination Against Persons With Limited English Proficiency (reprinted in Supp. App. 14a - 28a).

This Court has never reviewed those administrative interpretations, and they do not bind this Court. Espinoza, 414 U.S. at 94-95.

Numerous other courts have reviewed the EEOC Guidelines and have rejected them and their underlying equation of language and national origin. See, e.g., Garcia v. Spun-Steak, 998 F.2d 1480, 1489-90 (9 th Cir. 1993), cert. den. 512 U.S. 1228 (1994)(EEOC Guidelines equating ultra vires); Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686 (5 th Cir. Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217, 1222 (7 th Cir. Long v. First Union Corp., 894 F.Supp. 933, affirmed, th Cir. 1996).

Judicial Interpretations:

As the lower court recognized, 197 F.3d at 509 n. 26, this Court has never held that the language a person chooses to speak can be equated to the person’s national origin.⁹ (which relies on Judge Reinhardt’s vacated opinion in Gutierrez v. Municipal Court of the Southeast Judicial Dist., discussed in fn 2 above)

⁹ Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926), sometimes cited to equate language and national origin, involved intentional discrimination.

Though this issue was briefed and discussed in Hernandez v. New York, 500 U.S. 352 (1991), the Court did not make a holding on this question. "Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a result, it violates the Equal Protection Clause. . . We need not address that argument here." 500 U.S. at 360. 

The Circuits, on the other hand, have rejected such an equation.¹⁰  See, e.g., Soberal-Perez v. Heckler, 717 F.2d at 41:

A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class.

See, also, Toure v. United States, 24 F.3d at 446 (affirming Soberal-Perez and rejecting request for multilingual An v. General Am. Life Ins. Co., 872 F.2d 426 (9^th Cir. 1989)(table).

A few cases indicate that if the language policy is a pretext for intentional discrimination, a language-related rule might violate national origin rules.¹¹ In addition, two recent 

on the basis of ancestry rather than language, because the law there was designed "to affect [Chinese merchants] as distinguished from the rest of the community." 271 U.S. at 528.

¹⁰ The circuit courts have found a Sixth Amendment right to an See, e.g., United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970). But see, Abdullah v. Immigration and Naturalization Service, 184 F.3d 158, 165-66 (2d Cir. 1999)(distinguishing between "government-initiated proceedings seeking to affect adversely a person’s status and hearings arising from the person’s affirmative application for a benefit").

¹¹ For example, Judge Reinhardt wrote, in an opinion vacated by this Court, that "since language is a close and meaningful proxy for national.

lower court decisions have adopted the EEOC’s interpretation equating language and national origin. See, e.g., EEOC v. Synchro-Start Products, 29 F.Supp.2d 911, EEOC v. Premier Operator Services, 113 F.Supp.2d 1066 (N.D. Texas, Synchro-Start and Judge Reinhardt’s dissent from denial of rehearing en banc in Spun Steak, found disparate treatment See, e.g., Gloor, 618 F.2d at 270 ("The EEO Act does not Nazarova v. INS, 171 F.3d 478, 483 (7^th Cir. 1999)(permitting Carmona v. Sheffield, 475 ^th Cir. 1973)(permitting English benefit termination notices); Frontera v. Sindell, 522 F.2d 1215 (6^th Cir. 1975)(civil service exam for carpenters can be in Garcia v. Spun Steak, 998 F.2d 1480, 1489-90 (9^th Cir. 1993), cert. den., 512 U.S. 1228 (1994) (rejecting EEOC Gonzalez v. Salvation Army, 985 F.2d 578 (11^th Cir.)(table), cert. den., 508 U.S. 910 (1993)(rejecting employment discrimination claim); Jurado v. Eleven-Fifty 813 F.2d 1406 (9^th Cir. 1987)(permitting radio station to choose language an announcer would use); Vasquez v. 

origin, restrictions in the use of languages may mask discrimination against specific national origin groups, or more generally, conceal nativist sentiment." Yniguez v. Arizonans for Official English, 69 F.3d 920, 947-48 (9 th Cir. 1995), vacated, sub nom., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).

McAllen Bag & Supply Co., 660 F.2d 686 (5 th Cir. 1981) (upholding English-on-the-job rule for non-English-speaking truck drivers); Garcia v. Rush-Presbyterian St. Luke’s Medical Center, 660 F.2d 1217 (7 th Cir. 1981)(upholding hiring practices requiring English proficiency); Long v. First Union Corp., 894 F.Supp. 933, 941 (E.D. Virginia, affirmed, 86 F.3d 1151 (4 th Cir. 1996); Gotfryd v. Book Covers, Inc., 1999 WL 20925, *8 (N.D. Ill. 1999)(rejecting attempt to use EEOC guidelines to establish hostile workplace); Magana v. Tarrant/Dallas Printing, Inc., 1998 WL 548686, *5 (N.D. Texas, 1998) Tran v. Standard Motor Products, Inc., 10 F.Supp.2d 1199, 1210 (D. Kansas, 1998)("the purported English-only policy does not constitute a hostile work environment"); Mejia v. New York Sheraton Hotel, 459 F.Supp. 375, 377 (S.D.N.Y. Prado v. L. Luria & Son, Inc., 975 F.Supp. 1349 (S.D. Fla Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730, 733 (E.D. Penn. 1998) (surveying cases: "all of these courts have agreed that – particularly as applied to multi-lingual employees – an English-only rule does not have a disparate impact on the basis of national origin, and does not violate Title VII.").

There is, therefore, no basis in the terms, history or interpretation of "national origin" which supports a per se rule equating a person’s language and that person’s national origin

2. A Per Se Rule Equating Language and National Spanish is spoken in many countries,¹²  impairing a Espinoza, "the country from which his or her ancestors Hernandez v. Texas, 347 U.S. 475, 479-80 (1954)(persons of Mexican descent wrongfully excluded from jury duty).

A per se rule equating a person’s language and national origin would be both over- and under-inclusive. Many Hispanics do not speak Spanish.¹³  Many non-Hispanics speak Spanish.¹⁴

Nor is language an immutable characteristic, like "the Espinoza, Garcia v. Gloor, 618 F.2d at 270, in that aspect language may be much 

¹² At least 13 countries have Spanish as their official or national Resolving Language Conflicts: A Study of the World’s Constitutions, (1986).

¹³ The Rand Corporation reported in 1985 that by the second generation Official Use of English: Yes/No, 74 A.B.A. J.

¹⁴ The American Council of Teachers of Foreign Languages reported that 3,219,775 American high school students were taking Spanish language courses in 1994. Draper & Hicks, Foreign Language Enrollment in Public Secondary Schools, Fall 1994, Table 2. Contrary to popular belief, "people who got good grades in high school Spanish classes remembered much of the Spanish vocabulary up to 50 years after taking their last course." College Classes Spur Lifelong Math Memory, 138 Science News 375 (1990).

like alienage – not statutorily protected. Although alienage cannot be changed before qualification for naturalization, it can be changed eventually. Sugarman v. Dougall, 413 U.S.

B. A Per Se Rule Equating Language and National Origin Is Unworkable

Providing services or assistance in many languages, Hernandez v. New York, 500 U.S. at 361, citing, United States v. Perez, th Cir. 1981)¹⁵ ; Seltzer v. Foley, 502

¹⁵ This Court quoted testimony from United States v. Perez, 658 F.2d 654 (CA9 1981), to illustrate the sort of problems that may arise even with an official translation:  

"DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the interpreter a question? I'm uncertain about the word La Vado [sic]. You say that is a bar. "THE COURT: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to me -" 

DOROTHY KIM: I understood it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover.

"THE COURT: These are matters for you to consider. If you have any misunderstanding of what the witness testified to, tell the Court now what you didn't understand and we'll place the -"

DOROTHY KIM: I understand the word La Vado [sic] - I thought it meant restroom. She translates it as bar.

"MS. IANZITI: In the first place, the jurors are not to listen to the Spanish, but to the English. I am a certified court interpreter.

"DOROTHY KIM: You're an idiot." Id., at 662. Upon further questioning, "the witness indicated that none of the conversations in issue occurred in the restroom." Id., at 663. 

The juror later explained that she had said "`it's an idiom'" rather than "`you're an idiot,'" but she was nevertheless dismissed from the jury. Ibid. 

500 U.S. at 361, n. 3.

F.Supp. 600, 603-4 (S.D.N.Y. 1980)(interpreter in magistrate’s courtroom changed the motive of the accused without her knowledge). A 1985 report found that of 1,400 applicants, only 30 passed the federal certification test for Spanish language courtroom interpreters. "Problems Cited in Greater Use of Court Interpreters," 16 CRIM. JUST. NEWSL. The Bilingual Courtroom, New York Times, May 8, See, e.g., Abdullah v. INS, 184 F.3d at 166:

The applicants in this case alone would

See, also, Nazarova v. INS, 171 F.3d at 483:

[T]he logical implication is that the INS must

See further, Toure, 24 F.3d at 446 (providing forfeiture Vialez v. New York City Hous. Auth.,

C. A Per Se Rule Equating Language and National Origin Is Unwise

This Court noted in Holland v. Illinois, that "[t]he earnestness of this Court’s commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds." 493 U.S. 474, 488 (1990). It would be difficult to cabin the lower court’s equation of language choice and national origin. The most critical example is the Administration’s adoption of the lower court’s opinion in Executive Order 13,166 to expand the equating of language and national origin to every federal agency, contractor and grantee.

Although the primary question in this case is the existence of a private right of action, a misinterpreted phrase in an opinion from this Court could generate unintended controversies in other areas far beyond this case:

Language of Government Activities:

24 States have declared English their official languages.¹ These declarations are the subject of substantial

¹ Alabama: Ala. Const. Amend. 509 (1990); Alaska: Ak. Stats. § Arizona: Ariz. Const. Art. XXVIII (1988) (negated by Arizona Supreme Court – 1999); Arkansas: Ark. Stat. Ann. 1-4-117 California: Cal. Const. Art. III, § 6 (1986); Colorado: Colo. Const. Art. II, § 30 (1988); Florida: Fla. Const. Art. II, § 9 (1988);

litigation. See, e.g. Arizonans for Official English, No. 95- 974, 520 U.S. 34 (1997).

Other cases, like this one, involve challenges to governments’ choices of English for internal operations. The lower court’s analysis, for example, would have precluded the English-language civil service examination upheld in Frontera v. Sindell, 522 F.2d at 1218, and the English-language Nazarova v. INS, 171 F.2d at 483, Soberal-Perez v. Heckler, 717 F.2d at 41, Carmona v. Sheffield, 475 F.2d 738 th Cir. 1973), Toure v. United States, 24 F.3d at 446, Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, cert. denied, 459 U.S. 806 (1982), Guerrero v. Carleson, 9 Cal. 3d cert. denied, Commonwealth v. Olivio, 369

Language of Education:

As noted above, the elimination of bilingual

Georgia: Ga. Code Ann. § 50-3-30 (1986); Hawaii: Hawaii Const. Art. ; Illinois: Ill. Rev. Stat. Indiana: Ind. Code Ann. § 1-2-10-1 (1984); Kentucky: Ky. Rev. Stat. § 2.013 (1984); Mississippi: Miss. Code Ann. Missouri: Mo. Stats. § 1-028 (1999); Montana: Mont. Code Ann. § 1-1-510 (1995); Nebraska: Neb. Const. Art. I, § 27 (1920); New Hampshire: 1995 N.H. Laws 157 (1995); North Carolina: N.C. North Dakota: N.D. Cent. Code, § 54-02-13 (1987); South Carolina: S.C. Code Ann. § 1-1-(696-698) (1987); South Dakota: S.D. Codified Laws Ann. §§ 1-27-20 to 1-27-26 (1995); Tennessee: Tenn. Code Ann. § 4-1-404 (1984); Virginia: Va. Code § Wyoming: Wyo. St. 8-6-101 (1996). An initiative measure declaring English the official language is on the November 7, 2000 Utah ballot.

agencies would roll back these bilingual education reforms, New York Times called "a bilingual prison." "A Bilingual Prison," The New York Times, September 21, 1995, A22.

Language of the Workplace:

As noted above and discussed in the Appendix to this brief, courts have overwhelmingly rejected the EEOC’s presumption that English-on-the-job rules are national origin discrimination. See, e.g., Gloor, 618 F.2d at 270 ("The EEO Spun-Steak, 998 F.2d at 1489-90 (EEOC ultra vires). These decisions would be wiped   Amici respectfully urge the Court to reverse the decision below on the question of whether a person’s choice of language can be equated to the person’s national origin.

II. Federal Rules Which Affect Core Rights of the States to Choose English for Internal Operations

The decision below will require the State to speak in a language which its political processes have decided will harm its interests.² This Court has historically recognized States’ rights to "regulate the content of what is or is not expressed when it is the speaker." Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 Rosenberger is a First Amendment case, it reflects this Court’s concern for States’ sovereignty.

² 89% of Alabama’s voters approved the State’s English Language Amendment in 1990. Secretary of State, Certification of Results of Election Held June 5, 1990, June 20, 1990, 1.

A State defines itself as a sovereign "[t]hrough the structure of its government and the character of those who exercise government authority." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Several of these areas of State sovereignty lie beyond the general reach of federal laws, including the regulation of a State’s internal operations. "A State is entitled to order the processes of its own governance." Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2264 (1999)("Such plenary federal control of state government processes denigrates the separate sovereignty of the States.").

This is not a new thought, as this Court noted over a century ago: "To [the States] nearly the whole charge of interior regulations is committed or left." Lane County v. Oregon, 7 Wall. 71, 76 (1869); Oregon v. Mitchell, 400 U.S. 112, 126 (1970)(Black, J., joined by the Chief Justice and three other Justices)("And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States’ power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous.").

Under this Court’s recent decisions, the Tenth Amendment protects the reservation of "original powers" of a State. U.S. Term Limits v. Thornton, 514 U.S. 779, 801 Alden, 119 S.Ct. at 2259, quoting, Nevada v. Hall, 440 U.S. 410, 425 (1979).

A State’s Tenth Amendment right to choose the language of its own internal operations is one of those historically-based core powers. Throughout American history, this Court has permitted States to use English.

Patterson v. De La Ronde, 8 Wall. 292, 299-300 Meyer v. Nebraska, 262 U.S. 390, 402 (1923)("The power of the State to . . . make reasonable requirements for all schools, including a requirement that they shall give instructions in English, is not questioned.").

And prior to the Constitutional Convention, the primacy of English was well-established. "[T]he English language dominated all public life. It was the only official language and as such was used in the courts, the assemblies, and the press." J.R. Pole, Foundations of American Independence, 1763-1815, 18 (1972).

Like the choice of location of its own State Capitol, a State’s choice to use English in conducting its affairs is a "function essential to [the State’s] separate and independent existence." Coyle v. Wyoming, 221 U.S. 559, 595 (1911).

Choice of the English language for internal State operations is thus an "original power," a core State function over which federal abrogation power is limited. Any federal abrogation, therefore, must be explicit and remedial. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 638 (1999). There are few, if any, such abrogations, and those identified in the decision below are neither clear nor remedial.

The lower court seemed to rest its entire view of federal regulatory power over States’ internal language choices on this Court’s decision in Lau v. Nichols, 414 U.S. See, e.g., 197 F.3d at 495-97, 504-07. Yet Lau was a narrow decision – focused specifically on a particular problem in education – and not the type of clear, remedial abrogation envisioned by this Court’s recent decisions. If left intact, the decision below will encourage other courts to use Lau to overrule States’ internal decisions in other non-educational contexts, shoving that narrow, education-based decision far beyond its original limits.

This Court should protect these core States’ rights by reversing the decision below.

CONCLUSION

Amici therefore respectfully urge the Court to reverse

BARNABY W. ZALL
Counsel of Record for Amici Curiae
7018 Tilden Lane
Rockville, MD 20852
(301) 231-6943

November 9, 2000

Appendix

Letter to Equal Employment Opportunity Commission

Thomas G. Tancredo
6 th District, Colorado
Washington Office:
1123 Longworth Building
Washington, DC 20515
Main: (202) 225-7882
Fax: (202) 225-4623

District Office:
5601 S. Broadway, Suite 370
Littleton, CO 80120
Main: (720) 283-9712
Fax: (720) 283-9776

Committee on Education and the Workforce
Subcommittees:
Early Childhood, Youth and Families
Oversight and Investigations

Committee on Resources
Subcommittee:
Energy and Minerals

Committee on International Relations
Subcommittees:
International Operations and Human Rights
Africa

Congress of the United States
House of Representatives
Washington, DC 20515-0606

 

December 14, 1999

The Hon. Ida L. Castro
Chairwoman
Equal Employment Opportunity Commission
1801 L St., N.W.
Washington, DC 20507

Dear Ms. Castro:

Thank you for the Commission’s October 20, 1999 ultra vires. To quote just one of at variance with the statute it interprets, wrong." Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d 730, 735-736 (E.D. Penn. 1998) ultra vires -- beyond Kania court’s position that the Commission’s Guidelines are ultra vires, unfounded in Title VII and "wrong" is virtually Garcia v. Gloor, 618 F.2d 264 (5 th Cir. 1980), cert. denied, 449 U.S. Vasquez v. McAllen Bay & Supply Co., th Cir. 1981)(same as applied to non-English-speaking ultra and unlawful include:

	Long v. First Union Corp., 86 F.3d 1151 (4 th Cir. affirming 894 F.Supp. 933 (E.D. Va, 1995). See 894 F.Supp. 940 (Guidelines are ultra vires because Congress enacted a specific and detailed
	Gonzalez v. Salvation Army, 985 F.2d 578 (11 th Cir.), cert. denied, 508 U.S. 910 (1993), affirming, No. 89-1679-Civ-T-17 (M.D. Fla. 1990)(citing Gloor for  proposition that, where co-workers or customers can overhear, English-on-the-job rule does not violate Title VII; notes that legitimate business purposes included the ability of managers to know what was said in the workplace, and the ability of co-workers to know what was being said around them).
	Garcia v. Spun Steak Co., 998 F.2d 1480 (9 th Cir. 993), cert. denied, 114 S.Ct. 2726 (1994)(in rejecting language-based claim by employees who hurled racial insults at co-workers in language co-workers could not understand, Guidelines struck down as illegal and ultra vires). An attempt to obtain rehearing by citing Title VII was rejected by the full Ninth Circuit. 13 F.3d 296 (9 th Cir. 1994).
	Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9 th Cir. 1987)(on motion for summary judgment, rejecting Guidelines-based claim by radio announcer for disparate impact).
	Tran v. Standard Motor Products, Inc., 10 F.Supp. 2d 1199 (D.C. Kansas 1998)(in rejecting language-based claim by employee who sexually harassed co-workers in a language other than English, found that business necessity includes insuring that all workers can understand each other, preventing injuries, and preventing co-workers from feeling they are being talked about; English-on-the-job rule did not create hostile work environment).
	Roman v. Cornell University, 53 F.Supp. 2d 223, 237 (N.D. N.Y. 1999)(after surveying cases, finding: "All decisions of which this Court is aware have held that English-only rules are not discriminatory as applied to bilingual employees where there is a legitimate business justification for implementing such a rule" and "Several courts have held that an English-only policy designed to reduce intra-office tensions is a legitimate business reason.")

These decisions completely undermine the Commission’s Guidelines. Surely the Commission should know of these decisions, yet they are not provided to employees or reflected in the Commission’s policies. Nor is there any countervailing controlling legal authority. There are only three decisions which might support the Commission’s Guidelines – and none of those is significant or broadly applicable. The first was Gutierrez v. Municipal Court of the Southeast Judicial District, 838 F.2d th Cir. 1988), vacated, 490 U.S. 1016 (1989). In Gutierrez, court employees racially insulted co-workers in a language they could not understand; the Ninth Circuit upheld a title VII claim based on the Guidelines, suggesting that the employer’s remedy was to fire African-American employees and hire Spanish-speaking supervisors. Several Ninth Circuit judges decried this opinion as a "let them eat cake" approach which would exacerbate workplace tensions. 861 F.2d 1187, 1194 (9 th Cir. 1988). The Supreme Court of the United States Gutierrez opinion immediately without further briefing, but did so with an unusual reference to a passage indicating that the vacated opinion was to "spawn no legal consequences." 490 U.S. 1016 (1989).

It is unlikely that the Commission would want to rely on a vacated opinion which suggests firing African-American supervisors in order to permit continued racial insults in a workplace. Fortunately, the Commission’s training and policy materials make no reference to Gutierrez. EEOC v. Synchro-Start Products, 29 F.Supp.2d 911 Synchro-Start, Judge Shadur notes Synchro-Start, rejected an attempt to use the Gotfryd v. Book Covers, Inc., __ F.Supp. 2d ___ 1999 WL 20925, *8 (N.D. Ill. 1999).

The Commission probably will not want to rely heavily on a District Court opinion so specifically limited and contradicted in its own district. Unfortunately, the press coverage included in your letter to me indicates that personnel in the Chicago office do not share this discretion. An EEOC attorney is quoted as claiming that "courts are divided on the legality of such English-only personnel policies." This quote, which was given at the start of the lawsuit against Synchro-Start, is simply incorrect. At the time this quote was given, there were no courts which had rejected such policies, as Judge Shadur later recognized in Synchro-Start saying that he was the first Synchro-Start and Gotfryd).

The same article quotes another EEOC attorney as saying that English-on-the-job "policies are generally a manifestation of prejudice toward ethnic minorities." There is no such finding in the judicial cases, and it is difficult to believe that the EEOC attorney is applying some general factual finding rather than personal prejudice. I find no evidence that the Commission made such a general factual finding.

The most troubling note in the package of information, however, was the Chicago EEOC office’s press release of January 21, 1999, in which John P. Rowe, District Director in Chicago, says that "One of our enforcement priorities in this jurisdiction is to make the Commission’s Guidelines on ‘English only’ rules a reality in the workplace. Judge Shadur’s reference to the EEOC Guidelines and his decision permitting the case against Synchro-Start to keep moving ahead are very significant milestones and reinforce our commitment to the agency’s enforcement priorities. We look forward to making further strides in this area." It appears from this quote that the Chicago regional office has not reviewed or credited each of the more than a dozen federal judicial decisions rejecting the Commission’s interpretation of Title VII as applied to English-on-the-job rules. It is difficult to determine what grounds the Chicago regional office has for believing that all those courts are wrong and the Commission interpretation is the only correct version.

There is a third (and most recent) decision, which is also contradicted in its own jurisdiction. As you know, the Commission sued Premier Operator Services of Desoto, Texas, alleging that its English-on-the-job rule violated Title VII. EEOC v. Premier Operator Services, __ F.Supp.2d ___, 1999 WL 1044180 (N.D.Texas, 1999). Magistrate Stickney refused to grant summary judgment in the case, finding that he must give "some consideration" to the Guidelines where there were genuine material factual disputes. Magistrate Stickney did not cite any decision involving English-on-the-job rules other than Gloor, which he said was not applicable to a situation where an employee "inadvertently" uses a language other than English. Yet an earlier decision by Judge Fitzwater in the same Northern District of Texas, citing

Gloor and Spun-Steak, held flatly: "English-only policies are Magana v. Tarrant/Dallas Printing, Inc., __ F.Supp.2d __, 1998 WL 548686, *5 (N.D.Texas 1998).

The summary of all these cases is that there is no judicial recognition of a legal basis for the Commission’s Guidelines from any federal appellate court, and the lower courts largely reject the Guidelines. This lack of legal foundation for a federal enforcement policy troubles me.

I have reviewed the material you sent to me explaining the Commission’s position in general and instructing its personnel about English-on-the-job rules. I find no mention of most of these cases. I find no significant legal analysis of the Commission’s interpretation beyond a simple declaration of its conclusions. I find interpretations which contradict and ignore the straightforward and unanimous opinions of the federal courts which have reviewed English-on-the-job rules. In short, the materials I received from the Commission explaining its position and instructing its personnel were simply "wrong."Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d at 735-736.

That makes the case load report you sent to me all the Synchro-Start and Premier Operator.

A description of the geographic location of the

Response from Equal Employment Opportunity

[seal]

U.S. Equal Employment Opportunity Commission
Washington, D.C. 20507

Jan 21 2000

The Honorable Thomas G. Tancredo
U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman Tancredo:

This is in response to your letter of December 14, 1999, regarding the policy of the Equal Employment Opportunity Commission (EEOC) on "English-only" rules. Specifically, you requested that the EEOC provide the following: 1) an explanation of the EEOC’s legal rationale regarding the application of title VII to English-only rules; 2) information regarding the 27 charges challenging English-only rules during the period of August 28, 1998, to August 26, 1999, in which the EEOC found violations; and 3) an explanation of any changes the EEOC intends to make to materials addressing the English-only rule. This letter will address each of these requests in turn.

EEOC’s Analysis of the Application of Title VII to ¹

As you know, the EEOC has adopted the following When applied at all times. A rule requiring When applied only at certain times. An employer  

1 This section summarizes the EEOC’s position on English-only rules. To provide a more detailed discussion of the EEOC’s analysis, we have enclosed the initial and reply briefs filed by the EEOC as amicus curiae in support of rehearing en banc in Garcia v. Spun Steak Co.. Pursuant to your specific request, we have also enclosed the EEOC’s response to defendant’s motion to dismiss in EEOC v. Synchro-Start Products, Inc., and the EEOC’s opposition to defendants’ motion for summary judgment in EEOC v. Premier Operator Services, Inc., along with supporting materials.

in English at certain times where the employers can show that the rule is justified by business necessity.²

The guidelines reflect the EEOC’s position that a rule Hernandez v. New York, 500 U.S. 352, 370 (1991); See also Garcia v. Spun Steak Co., 998 F.2d 1480, 1487 (9 th Cir. rehearing en banc denied, 13 F.3d 296 (1993), cert. denied, 512 U.S. 1228 (1994); Asian American Business Group v. City of Pomona, 716 F.Supp. 1328, 1330 (C.D.Cal. Gutierrez v. Municipal Court of the Southeast Judicial Dist., 838 F.2d th Cir. 1988), remanded with directions to vacate as moot, 490 U.S. 1016, vacated as moot, 873 F.2d th Cir. 1989); see also Spun Steak, Spun Steak [sic] 13  

2 The guidelines also require employers to provide employees with adequate notice of the rule. 29 C.F.R. § 1606.7(c).

identity and a means of affirming links to his original regardless of whether they can comply with the rule. EEOC v. Synchro-Start Prods., Inc., 29 F.Supp. 911, 915 (N.D. Ill. 1999). They face Spun Steak, 13 F.3d at 298 (Reinhardt, dissenting from denial of E.g., Spun Steak, 998 Synchro-Start, 29 F.Supp. at 912 (English-only See, Hishon v. King & Spaulding, 467 U.S. 69, 75 See Synchro-Start, 29 F.Supp. 2d Spun Steak, 13 F.3d 300 (Reinhardt, J., See Section 623: Speak-English-Only rules and

Other Language Policies, EEOC Compliance Manual (BNA) 623:0009-0016 (1984). By requiring an employer to explain the business justification for an English-only rule, the guidelines balance a reasonable presumption of adverse impact with the employer’s right to adopt needed business practices.

The guidelines have been scrutinized by relatively few courts since their adoption in 1980. Among U.S. Courts of Appeal, only one circuit, the Ninth Circuit, has directly addressed the guidelines.3 In Garcia v. Spun Steak Co., 998 th Cir.), rehearing en banc [4] denied, 13F.3d 296 (1993), cert. denied, 512 U.S. 1228 (1994), the court stated that a plaintiff challenging an English-only rule Id.

3 Three other U.S. Courts of Appeals have issued decisions on English-only Long v. First Union Corp., 894 F.Supp. 933 (E.D.Va. 1995), the district court unpublished decision without addressing the guidelines. 86 F.3d 1151 th Cir. 1996)(per curiam). The Fifth Circuit decision in Garcia v. Gloor, th Cir. 1980), cert. denied, 449 U.S. 1113 (1981), Id. at 268 n. 1. Finally, in Gonzalez v. Salvation Army, No. 89-1679-CIV-T-17, 1991 U.S.Dist. KEXIS 21692 (M.D. Fla. May 28, th Cir.), cert. denied, 508 U.S. 910 (1993). For these reasons, none of these Courts of Appeals decisions can be interpreted as rejecting the EEOC guidelines.

The court also acknowledged, as did the employer, that such Id. at 1487.⁴  Accordingly, the court rejected the Id. at 1490. Spun Steak. In addition, we Spun Steak completely disregarded Gutierrez v. Municipal Court of the Southeast Judicial Dist., 838 F.2d 1031 (9 th Cir. 1988), remanded with directions to vacate as moot, 490 U.S. 1016 vacated as moot, 873 F.2d 1342 (9 th Cir. 1989).⁵  The Gutierrez determined that the ease of compliance Id. at 1041. Moreover, the court found Id.

4 The court acknowledged that an English-only rule might have a

5 The Spun Steak court merely stated that Gutierrez had no precedential Gutierrez was vacated and had no Spun Steak, Gutierrez made it apparent that Id.

District courts that have considered the EEOC’s Spun Steak majority in rejecting the EEOC’s guidelines.⁶  Recently, however, the EEOC v. Sunchro-Start Prods., Inc., 29 F.Supp. 2d 911, 914 (N.D. Ill. Spun Steak, and found the justification for the guidelines to be persuasive.⁷  In EEOC v. Premier Operator Services, Inc., Garcia v. Gloor, 618 F.2d 264 th Cir. 1980), cert. denied, 449 U.S. 1113 (1981), which Premier Operator noted that the English-only rule at dispute in the case before Gloor specifically stated that  

⁶ E.g., Kania v. Archdiocese of Philadelphia, 14 F.Supp. 2d 730 (E.D. Pa. Long v. First Union Corp. of Va., 894 F.Supp. 933 (E.D. Va. aff’d, 86 F.2d 1151 (4 th Cir. 1996)(see discussion of Long at note

⁷ In a decision issued two weeks earlier in the Northern District of Illinois, another district court judge rejected the plaintiff’s reliance on the EEOC’s guidelines, finding that they did not apply to the issue before it. However, the court did not address the validity of the guidelines. Gotfryd v. Book Covers, Inc., No. 97 C 7696, 1999 WL 20925, at *8 (N.D. Ill. Jan. 7, 1999).

In addition to the courts that have upheld the EEOC’s Spun Steak, the Solicitor General filed a brief in support of the petition to the Supreme Court to grant a writ of certiorari. The Solicitor General argued that the EEOC’s guidelines reflect a "sound" interpretation of Title VII, and that the Ninth Circuit’s decision is "wrong."⁸

The EEOC of course respects the rules of statutory  

⁸ A copy of the brief supporting the petition for certiorari is enclosed.

enforcement agency for the federal anti-discrimination laws,

Summary of Charges

In our prior correspondence, we reported that between August 28, 1998, and Augst 26, 1999, 27 charges involving English-only rules were resolved after a cause finding had been issued. After further review of the charges, we determined that 3 of the 27 cases did not involve issues regarding English-only rules.⁹

Therefore, we are providing you with information on  

⁹ Two of the three cases challenged English-only policies, but cause findings were only issued on other issues raised in the charges. The third charge was miscoded in the computer as challenging an English-only policy.

the investigator performed an investigation to determine such Spun Steak, which did not apply

Revisions to Materials on English-only Rules

At this time, the EEOC does not believe that a change