English First

April 20, 2009

Martin Dannenfelser, Staff Director

U.S. Commission on Civil Rights

624 Ninth Street, N.W.

Washington, DC 20425

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Dear Commission and Staff Director Dannenfelser:

Thank you for the opportunity to comment on the Commission’s “English in the Workplace” briefing.

ENGLISH FIRST

English First is a national, non-profit grassroots lobbying organization founded in 1986.  Our goals are simple:

·         Make English America's official language.

·         Give every child the chance to learn English.

·         Eliminate costly and ineffective multilingual policies.

Over 150,000 concerned Americans have joined English First.  We believe this nation of immigrants must be able to talk to each other.  We believe that the English language unites America.  We are tired of seeing the government use their tax money to divide Americans on the basis of language or ancestry.

“BUSINESS NECESSITY” & THE THEORY OF GOVERNMENT-RUN BUSINESS

Beware of the Equal Employment Opportunity Commission’s (EEOC’s) guidelines regarding “business necessity”.  Government has been involved in a big, long grab of private business freedom by installing itself as the determiner of what is necessary for business. 

Private business freedom—the freedom of a business to determine what is necessary for that business—and governmental central planning are on opposite sides of the scales--the more central planning, the less private business freedom.

The central planning agenda involves growth of governmental power and scope.  Government is increasingly making decisions for business.  At the same time, the government is shifting bureaucratic burdens from government onto businesses.

The EEOC seeks to place on businesses the burden of defending whether or not a business practice is rationalized by business necessity.  In the EEOC’s vision, the EEOC would presumptively determine against business necessity by prosecuting a case, businesses would have the burden of proof to defend their business decisions, and another branch of government—the courts—would ratify the EEOC’s determination. 

At the same time, the EEOC serves as judge and jury in the court of public opinion by issuing press releases, notably before the cases have reached a final decision.

To concede the point that government should determine what is necessary for business is to concede that government should be controlling and running business.

Never has this phenomenon of government-run business been more prevalent or more obvious than now, with the federal government taking over America’s largest corporations, including General Motors and AIG.

We must resist the government’s reach into determining the “business necessity” of any English-in-the-workplace policies and resist the growth of governmental central planning.

THE SEMINAL CASE

            In many ways, Garcia v. Spun Steak is the seminal case in this area.  The case was decided in the United States Court of Appeals, Ninth Circuit, on July 16, 1993.  The court’s decision notes,

“The employees argue that denying them the ability to speak Spanish on the job denies them the right to cultural expression. ...  Title VII, however, does not protect the ability of workers to express their cultural heritage at the workplace.  Title VII is concerned only with disparities in the treatment of workers; it does not confer substantive privileges.   See, e.g., Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981).  It is axiomatic that an employee must often sacrifice individual self-expression during working hours.  Just as a private employer is not required to allow other types of self-expression, there is nothing in Title VII which requires an employer to allow employees to express their cultural identity.

The court ultimately rejects the EEOC’s presumptive determination, “In holding that the enactment of an English-only while working policy does not inexorably lead to an abusive environment for those whose primary language is not English, we reach a conclusion opposite to the EEOC's long standing position.”

If a workplace wants to have its workers speak English at work, that decision is just fine and is that workplace’s prerogative.  Speaking a foreign language at work is a privilege and not an entitlement.  The courts have agreed that legislators never meant the Civil Rights Act to create any such entitlement or confer any such privilege.  Again, see the court in Spun Steak for this point:

We have been impressed by Judge Rubin's pre-Guidelines analysis for the Fifth Circuit in Garcia, which we follow today.  Garcia, 618 F.2d 264.  Nothing in the plain language of section 703(a)(1) supports EEOC's English-only rule Guideline. "Title VII could not have been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business."  United Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). 

Conservative U.S. Representative William M. McCulloch was a strong civil rights supporter who, with his Democrat counterpart Emanuel Celler, headed the House Judiciary Committee and pushed the Civil Rights Act of 1964 through Congress.  Congressman McCullogh made clear that employers’ prerogatives and internal affairs were to be left undisturbed to the greatest extent possible, and the Spun Steak court approvingly cites McCullogh’s reasoning:

"Those legislators demanded as a price for their support that, “management prerogatives, and union freedoms are to be left undisturbed to the greatest extent possible.   Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices.” Statement of William M. McCulloch, et al., H.R.Rep. No. 914, 88 Cong., 2d Sess (1964), reprinted in 1964 U.S.C.C.A.N. 2355, 2516 (quoted in part in Steelworkers, 443 U.S. at 206, 99 S.Ct. at 2728).   

In the end, Spun Steak stands for a rejection of the EEOC’s illegal presumptions of discrimination:

It is clear that Congress intended a balance to be struck in preventing discrimination and preserving the independence of the employer. In striking that balance, the Supreme Court has held that a plaintiff in a disparate impact case must prove the alleged discriminatory effect before the burden shifts to the employer. The EEOC Guideline at issue here contravenes that policy by presuming that an English-only policy has a disparate impact in the absence of proof.  We are not aware of, nor has counsel shown us, anything in the legislative history to Title VII that indicates that English-only policies are to be presumed discriminatory. Indeed, nowhere in the legislative history is there a discussion of English-only policies at all.

ENTITLEMENTS

Some would create a new entitlement to speak any and all languages in the workplace, but Congress has never so legislated.  Neither Executive Order 13166 nor any court case can create such an entitlement in the absence of specific legislation.  Indeed, for 35 years, the courts have consistently ruled AGAINST the concept that “national origin” in the Civil Rights Act includes “language”. 

BOUNTY HUNTING

The EEOC staff is trying to look good by bringing in big-dollar settlements and fines through browbeating non-profits and businesses about their English-in-the-workplace policies.  That is bounty-hunting.  We stopped the Internal Revenue Service from bounty-hunting when it tried similar tactics.  We now need to stop the EEOC.

The government (specifically the Equal Employment Opportunity Commission) should not be suing businesses and non-profit groups like the Salvation Army for having English-in-the-workplace policies. 

Polls show the American people do not support what the EEOC is doing.  A majority of the U.S. Congress opposes what the EEOC is doing too and have voted so, but have been blocked by the extreme liberal leadership’s procedural moves.

            Stop the bounty-hunting.  Stick with the original intent of Congress.  Uphold the vast weight of the 30 years of court decisions.  Support employers.  Don’t push new entitlements.  Honor the views of the American people.  Foster our great gift of the English language.  Bring people together with English.

Thank you.

                                                                              Aloysius Hogan, Esq.
                                                                              Director of Government Relations
                                                                              English First