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Case Study #2: Arbitration

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Arbitration: City of Altus on the English-Only Rule Case

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Submission Instructions:

• Answer the questions at the end of the case.
• Please clearly number your responses to each question.
• Follow current APA format for citations and reference page, if used.

You are the arbitrator in this case.

Arbitration: City of Altus on the English-Only Rule Case

The City of Altus promulgated an English-only policy, and several Hispanic employees have complained that the policy discriminates against them.

The city provided three reasons for adopting the policy:

1. Workers and supervisors could not understand what was being said over the city’s radios.

2. Non-Spanish-speaking employees informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand, because they did not know if their coworkers were speaking about them.

3. There were safety concerns with a non-common language being used around heavy equipment.

There are no written records of any communication, morale or safety problems resulting from the use of languages other than English prior to the policy’s implementation. One employee did complain verbally about the use of Spanish by his co-workers before implementation of the policy, and other non-Spanish-speaking employees subsequently made similar complaints. There have been no incidents of safety problems caused by the use of a language other than English.

The English-only policy states:

To ensure effective communication among and between employees and various departments of the city, to prevent misunderstandings, and to promote and enhance safe work practices, all work-related and business communication during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person’s limited English language skills. The use of the English language during work hours and while engaged in city business includes face-to-face communication of work orders and directions as well as communication utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the human resources director to determine what accommodation is required and feasible. This policy does not apply to strictly private communication between co-workers while they are on approved lunch hours or breaks or before or after work hours while employees are still on city property if city property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communication is limited in time and is not disruptive to the work environment.

Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.

Approximately 29 city employees are Hispanic, the only significant national-origin minority group affected by the policy. All plaintiffs are Hispanic and bilingual, each speaking fluent English and Spanish. So far, no one has been disciplined for violating the English-only rule. City employee Danny Maldanado filed a complaint with the Equal Employment Opportunity Commission over this policy. He believes it is a violation of Title VII of the Civil Rights Act of 1964 because it is discriminatory based on his race (Hispanic). Danny Maldanado and the street commissioner, Holmes Willis, tried to meet to meet to try to voluntarily resolve this complaint before it goes further in the process.

Holmes Willis, Street Commissioner

He is charge of the streets department for the City of Altus. He received a complaint that because department employees were speaking Spanish, other employees could not understand what was being said on the city radio. You informed the city’s human resources director, Candy Richardson, of the complaint, and she advised you that you could direct employees to speak only English when using the radio for city business. Other non-Hispanic employees have also complained about the use of Spanish at work by some employees.

Holmes Willis then crafted a policy and told the department employees that Spanish could not be spoken at work at all and that the city would soon implement an official English-only policy.

Although there have been no safety incidents related to the use of Spanish, he don’t feel that it is necessary to have an accident before you implement the policy. However, an employee, Danny Maldanado (see section below), has complained to Mr. Willis that the policy is prejudiced and creates problems in the workplace for Hispanic employees.

Danny Maldanado, an Employee in the Streets Department

This employee works in the streets department for the City of Altus.

Danny believes that the policy has created a hostile environment for Hispanic employees, causing all Hispanic employees fear and uncertainty in employment. He has been subjected to racial and ethnic slurs like “beaner” and “wetback” and derogatory comments about the odor of Mexican foods. The English-only rule has created a hostile environment because it is pervasive—every hour of every workday— and he feels burdened, threatened and demeaned because of his Hispanic origin. The English-only policy affects the work environment every day. It makes him constantly feel that he is second-class and subject to rules that the Anglo employees are not subject to. He feels like this rule is hanging over everyone’s head and can be used against any Hispanic employee at any point when the city wants a reason to write someone up.

He does not feel that the ability to communicate in a bilingual manner is a hindrance. There has never been a time that he was unable to perform the job because you spoke Spanish to another Spanish speaking individual. Moreover, the way that they are implementing this policy is a burden. Employees were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish-speaker was present—even during breaks, lunch hours and private telephone conversations. Employees were told that the only time they could speak Spanish is when two Spanish-speaking employees are in a break room by themselves, and if anyone who doesn’t speak Spanish walks in, to speak English.

Spanish-speaking employees can no longer speak about anything in Spanish around anybody. Even if they were on the phone talking to their wives and having a private conversation with them and somebody happened to walk by, they were to change their language because it would offend whoever was walking by.

Danny shares that he has been teased and made the brunt of jokes because of the English only policy, and makes Holmes aware that other Hispanic co-workers have been teased and made the subject of jokes as well. Other city employees pull up and laugh, say things in Spanish and then say, “They didn’t tell us we couldn’t stop. They just told you.” On one occasion, a police officer taunted you, saying, “Don’t let me hear you talk Spanish.”

Filing a Grievance

As the city is unionized, the labor agreement states that the first step is for a formal complaint be made to the local representative. Mr. Maldanado felt that his meeting with Mr. Willis was not satisfactory in convincing Mr. Willis to rescind the policy, so Mr. Maldanado filed a grievance with the union. He convinced several other Hispanic employees to do the same. The first recourse for resolving the issue is mediation between the two parties. If the mediation efforts are unsuccessful, then arbitration will be used to determine the matter.

Mediation

Danny wants management to rescind the policy so employees can speak Spanish whenever they want to. However, he recognizes that there may be circumstances in which a limitation on the use of Spanish would be reasonable. Nevertheless, he’d also like management to do something about the harassment by co-workers that has resulted from the promulgation of the policy.

In response to the potential concerns of Hispanic employees, Willis did ease up on the enforcement of the policy so that workers could speak Spanish during work hours and on city property if everyone present understood Spanish. Willis was willing to make some concessions about the policy, perhaps by reducing the scope or how and when it will be implemented. However, he was not willing to entirely rescind the policy.

The parties met over a series of meetings over several weeks, but could not come to an agreement. The issues has gone to arbitration, and you have been selected as the arbitrator for the case.

Arbitration

The employees of the City of Altus, Oklahoma (hereby collectively referred to as Plaintiffs), have made claims of discrimination against the City, the City Administrator, and the Street Commissioner (collectively referred to as Defendants). All claims arise out of the City’s English-only policy for its employees. Asserting claims of both disparate-impact and disparate-treatment discrimination, Plaintiffs contend that the English-only policy discriminates against them on the basis of race and national origin in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d2000e.

Evidence presented at Arbitration

Plaintiffs’ claims stem from the City’s promulgation of an English-only policy. Approximately 29 City employees are Hispanic, the only significant national-origin minority group affected by the policy. All Plaintiffs are Hispanic and bilingual, each speaking fluent English and Spanish.

In the spring of 2002 the City’s Street Commissioner, Defendant Holmes Willis, received a complaint that because Street Department employees were speaking Spanish, other employees could not understand what was being said on the City radio. Willis informed the City’s Human Resources Director, Candy Richardson, of the complaint, and she advised Willis that he could direct his employees to speak only English when using the radio for City business.

Plaintiffs claim that Willis instead told the Street Department employees that they could not speak Spanish at work at all and informed them that the City would soon implement an official English-only policy. On June 18, 2002, Plaintiff Tommy Sanchez wrote a letter to Ms. Richardson and the City Administrator, Defendant Michael Nettles, expressing concerns about the new Street Department English-only policy and the proposed citywide policy. Sanchez was particularly concerned that his subordinates, Plaintiffs Ruben Rios and Lloyd Lopez, had been told of a policy that he knew nothing about. Citing the City’s Personnel Policies and Procedures Manual, the letter informed Nettles that employees had not been given proper notice if this was a new administrative policy and questioned whether Willis and the City had followed proper procedures in implementing the new policy. Sanchez reported that Willis had told him that the reason Hispanics speak Spanish “is because [of] … insecurities,” and that Willis had suggested that he (Sanchez) “would feel uncomfortable if another race would speak their native language in front of [him],” id. The letter requested that “the City of Altus understand that we Hispanics are proud of our heritage and do not feel that our ability to communicate in a bilingual manner is a hindrance or an embarrassment. There has never been a time that because I spoke Spanish to another Spanish speaking individual, I was unable to perform our job duties and requirements.”

At the end of the letter Rios and Lopez signed a paragraph stating that “[t]he purpose of this correspondence is to serve as a discrimination complaint in accordance with the City of Altus Personnel Policies and Procedures Manual Section 102, in which we are requesting that an investigation be conducted into these charges and that a report be issue[d] within two weeks.” Another employee (Leticia Sanchez) also complained orally to Richardson about Willis’s instructing employees not to speak Spanish in any circumstances during work hours.

In July 2002 the City promulgated the following official policy signed by Nettles:

To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity’s limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.

Defendants state three primary reasons for adopting the policy:

1) workers and supervisors could not understand what was being said over the City’s radios … ;

2) non-Spanish-speaking employees, both before and after the adoption of the Policy, informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand because they did not know if their co-workers were speaking about them; and

3) there were safety concerns with a non-common language being used around heavy equipment.

You, the arbitrator, have observed “that there was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy;” However, you understand and recognize the city’s argument that “it does not seem necessary that the City await an accident before acting.”

It should be noted that Willis had testified that at least one employee complained about the use of Spanish by his co-workers before implementation of the policy and other non-Spanish-speaking employees subsequently made similar complaints. Those city officials who were deposed could recount no incidents of safety problems caused by the use of a language other than English, but the depositions also showed that some Plaintiffs were aware “that employee safety was one reason for the adoption of the policy.”

Defendants offered evidence that the restrictions in the written policy were actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish. But Plaintiffs offered evidence that employees were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish-speaker was present, even during breaks, lunch hours, and private telephone conversations. Plaintiff Lloyd Lopez stated in his deposition that “we were told that the only time we could speak Spanish is when two of us are in a break room by ourselves, and if anybody other than Hispanic comes in, we are to change our language.” In addition he said, “We no longer can speak about anything in general in Spanish around anybody. Even if we were on the phone talking to our wives and we were having a private conversation with them and somebody happened to walk by, we were to change our language because it would offend whoever was walking by.” Lopez understood, however, that the policy permitted him to speak Spanish if he was alone in a truck with another Spanish-speaking co-worker. Plaintiff Ruben Rios testified in his deposition that he similarly understood the policy to exclude the use of Spanish during breaks and the lunch hour if non-Hispanic co-workers were present. When asked specifically whether he understood that the policy allowed Spanish to be spoken between co-workers during lunch or other breaks, he stated that “[a]s long as there was another Hispanic person, we could speak in Spanish but away from other individuals, non-Hispanic people.” And Plaintiff Tommy Sanchez testified that he was told that he could not speak Spanish at all, but added that Richardson explained to him that “[t]hat’s not the way [the City] meant it.” The City has not disciplined anyone for violating the English-only policy.

Plaintiffs allege that the policy created a hostile environment for Hispanic employees, causing them “fear and uncertainty in their employment,” and subjecting them to racial and ethnic taunting. They contend “that the English-only rule created a hostile environment because it pervasively— every hour of every workday—burdened, threatened and demeaned the [Plaintiffs] because of their Hispanic origin.” Plaintiffs each stated in their affidavits:

The English-only policy affects my work environment every day. It reminds me every day that I am second-class and subject to rules for my employment that the Anglo employees are not subject to. I feel that this rule is hanging over my head and can be used against me at any point when the City wants to have something to write me [up] for.

Evidence of ethnic taunting included Plaintiffs’ affidavits stating that they had “personally been teased and made the subject of jokes directly because of the English-only policy[,]” and that they were “aware of other Hispanic co-workers being teased and made the subject of jokes because of the English-only policy.” Plaintiff Tommy Sanchez testified in his deposition that each time he went to the City of Altus he was reminded of the restrictions on his speech by non-Hispanic

employees. He stated that these other employees of the City of Altus “would pull up and laugh, start saying stuff in Spanish to us and said, ‘They didn’t tell us we couldn’t stop. They just told you.’”

Sanchez also testified that an Altus police officer taunted him about not being allowed to speak Spanish by saying, “’Don’t let me hear you talk Spanish.’” He further testified that “some of the guys from the street department would … poke fun out of it [the policy]”, and that when he went to other departments “they would bring it up constantly.” As evidence that such taunting was not unexpected by management, Lloyd Lopez recounted in his deposition that Street Commissioner Willis told Ruben Rios and him that he was informing them of the English-only policy in private because Willis had concerns about “the other guys making fun of [them].” Plaintiffs also provided evidence that Mayor Gramling was “quoted in a newspaper article as referring to the Spanish language as ‘garbage,’ “ although the Mayor claims that he used the word garble and was misquoted.

Time to decide

Based upon the evidence you have been given, you are to conduct any research you need to better understand the laws in question, and make a decision determining:

1) Is the policy in violation of the US Civil Rights Acts, which states that discrimination because of race/ethnicity and national origin is illegal? Explain why or why not?

2) How would you rule, if you did find the policy, and thus the City of Altus, discriminatory?

3)

What changes, if any, would you recommend so that the City’s policy was still reaching the same objectives it desired (trying to prevent accidents with heavy machinery, trying to make others not feel like they are being talked about and persecuted in another language) but seemed less discriminatory? Explain.