Rules that require employees to speak only English in the workplace have come under fire in recent years. Employees who speak a language other than English claim that such rules are not related to the ability to do a job and have a harsh impact on them because of their national origin. The EEOC and many courts agree that blanket English-only rules that lack business justification amount to unlawful national origin discrimination.88
Employers should be careful when instituting such a rule. While it is not nec- essarily illegal to make fluency in English a job requirement or to discipline an employee for violating an English-only rule, employers must be able to show there is a legitimate business need for it. For example, it’s a safety issue when medical workers or firefighters do not understand or cannot make themselves under- stood.89 Avoid requiring the use of English at all times and in all areas of the work- place. Inform employees in advance of the circumstances where speaking only in English is required and of the consequences of violating the rule. (Conversely, many employers would be delighted to have a worker who can speak the language of a non-English-speaking customer.) Otherwise, the employer may be subject to discrimination complaints on the basis of national origin.
established seniority systems on programs designed to ensure equal employ- ment opportunity. Employers often work hard to hire and promote members of protected groups. If layoffs become necessary, however, those individuals may be lost because of their low seniority. As a result, the employer takes a step backward in terms of workforce diversity. What is the employer to do when seniority conflicts with EEO?
The U.S. Supreme Court has been quite clear in its rulings on this issue in two landmark decisions: Firefighters Local Union No. 1784 v. Stotts 94 (decided under Title VII) and Wygant v. Jackson Board of Education 95 (decided under the equal protection clause of the Fourteenth Amendment). The Court ruled that an employer may not protect the jobs of recently hired African-American employees at the expense of whites who have more seniority. 96
Voluntary modifications of seniority policies for affirmative action purposes remain proper, but where a collective bargaining agreement exists, the consent of the union is required. Moreover, in the unionized setting, courts have made it clear that the union must be a party to any decree that modifies a bona fide seniority system. 97 More recently, in US Airways v. Barnett , 98 the Supreme Court ruled that that an employer is not required to grant an employee with a disability a job in place of an employee with more seniority—if a seniority system normally is used as a fundamental factor in such decisions. The Court emhasized that seniority does not always trump the ADA, and that such a ques- tion must be resolved on a case-by-case basis. 99
Testing and Interviewing
Title VII clearly sanctions the use of “professionally developed” ability tests.
Nevertheless, it took several landmark Supreme Court cases to clarify the proper role and use of tests. The first was Griggs v. Duke Power Co., the most significant EEO case ever, which was decided in favor of Griggs. 100 Duke Power was prohibited from requiring a high school education or the passing of an intelligence test as a condition of employment or job transfer because it could not show that either standard was significantly related to job performance:
What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. 101
The ruling also included four other general principles:
1. The law prohibits not only open and deliberate discrimination but also prac-
tices that are fair in form but discriminatory in operation. That is, Title VII prohibits practices having an adverse impact on protected groups, unless they are job related. This is a landmark pronouncement because it officially established adverse impact as a category of illegal discrimination.
For example, suppose an organization wants to use prior arrests as a basis for selection. In theory, arrests are a “neutral” practice because all persons are equally subject to arrest if they violate the law. However, if arrests cannot be shown to be job related, and, in addition, if a signifi- cantly higher proportion of African Americans than whites is arrested, the use of arrests as a basis for selection is discriminatory in operation.
2. The employer bears the burden of proof that any requirement for employ- ment is related to job performance. As affirmed by the Civil Rights Act of 1991, when a charge of adverse impact is made, the plaintiff must identify a specific employment practice as the cause of the discrimination. If the plaintiff is successful, the burden shifts to the employer.
3. It is not necessary for the plaintiff to prove that the discrimination was
intentional; intent is irrelevant. If the standards result in discrimination, they are unlawful.
4. Job-related tests and other employment selection procedures are legal and
useful.
The confidentiality of individual test scores has also been addressed both by the profession 102 and by the courts. Thus, the Supreme Court affirmed the right of the Detroit Edison Company to refuse to hand over to a labor union copies of aptitude tests taken by job applicants and to refuse to disclose indi- vidual test scores without the written consent of employees. 103
As is well known, interviews are commonly used as bases for employment decisions to hire or to promote certain candidates in preference to others. Must such “subjective” assessment procedures satisfy the same standards of job relatedness as more “objective” procedures, such as written tests? If they produce an adverse impact against a protected group, the answer is yes, according to the Supreme Court in Watson v. Fort Worth Bank & Trust . 104
As in its Griggs ruling, the Court held that it is not necessary for the plain- tiff to prove that the discrimination was intentional. If the interview ratings result in adverse impact, they are presumed to be unlawful, unless the employer can show some relationship between the content of the ratings and the require- ments of a given job. This need not involve a formal validation study, although the Court agreed unanimously that it is possible to conduct such studies when subjective assessment devices are used. 105 The lesson for employers? Be sure that there is a legitimate, job-related reason for every question raised in an employment or promotional interview. Limit questioning to “need to know,”
rather than “nice to know,” information, and monitor interview outcomes for adverse impact. Validate this selection method. It is unwise to wait until the selection system is challenged.
Personal History
Frequently, job-qualification requirements involve personal background infor- mation. If the requirements have the effect of denying or restricting equal employment opportunity, they may violate Title VII. For example, in the Griggs v.
Duke Power Co. case, a purportedly neutral practice (the high school education requirement that excluded a higher proportion of African Americans than whites from employment) was ruled unlawful because the company could not show that it was related to job performance. Other allegedly neutral practices that have been struck down by the courts on the basis of non-job relevance include
� Recruitment practices based on present employee referrals, where the work- force is nearly all white to begin with 106
� Height and weight requirements 107
� Arrest records, because they show only that a person has been accused of a crime, not that she or he was guilty of it; thus arrests may not be used as a
basis for selection decisions, 108 except in certain sensitive and responsible positions (e.g., police officer, school principal). 109
� Conviction records, unless the conviction is directly related to the work to be performed (e.g., a person convicted of embezzlement applying for a job as a bank teller). 110 In addition, employers should consider carefully the nature and gravity of the offense, the time that has passed since the convic- tion and/or completion of the sentence, and the nature of the job held or sought. 111
Despite such decisions, personal history items are not unlawfully discrimi- natory per se, but to use them you must show that they are relevant to the job in question. Just as with employment interviews, collect this information on a
“need to know,” not on a “nice to know,” basis.
Preferential Selection
In an ideal world, selection and promotion decisions would be color blind.
Thus, social policy as embodied in Title VII emphasizes that so-called reverse discrimination (discrimination against whites and in favor of members of pro- tected groups) is just as unacceptable as is discrimination by whites against members of protected groups. 112 Indeed, this riddle has perplexed courts and the public since the dawn of affirmative action 40 years ago: How do you make things fair for oppressed groups while continuing to treat people as equal
These people are protesting the passage of an antiaffir- mative action law.
individuals? 113 Court cases, together with the Civil Rights Act of 1991, have clarified a number of issues in this area:
1. Courts may order, and employers voluntarily may establish, affirmative action
plans, including goals and timetables, to address problems of underutiliza- tion of women and minorities. Individuals who were not parties to the orig- inal suit may not reopen court-approved affirmative action settlements.
2. The plans need not be directed solely to identified victims of discrimina-
tion but may include general, classwide relief.
3. While the courts will almost never approve a plan that would result in
white people losing their jobs through layoffs, they may sanction plans that impose limited burdens on whites in hiring and promotions (i.e., plans that postpone hiring and promotion).
What about numerically based preferential programs? The U.S. Supreme Court issued two landmark rulings in 2003 that clarified this issue. Both cases represented challenges to admissions policies at the University of Michigan, one involving undergraduate admissions (Gratz v. Bollinger) and one involving law- school admissions (Grutter v. Bollinger) . 114 The undergraduate admissions policy was struck down because it was too mechanistic. It awarded 20 points of the 150 needed for admission (8 points more than is earned for a perfect SAT score) to any member of an officially recognized minority group. Such a disguised quota system denied other applicants the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution, and thus it was ruled illegal.
However, the Court also was mindful of arguments from leading businesses, educational institutions, and former military officials that a culturally diverse, well-educated workforce is vital to the competitiveness of the U.S. economy and that an integrated officer corps produced by diverse military academies and ROTC programs is vital to national security. The Court upheld the law school’s approach to enrolling a “critical mass” of African Americans, Latinos, and Native Americans, under which the school considers each applicant indi- vidually and sets no explicit quota. To be consistent with the constitutional guarantee of equal treatment for all under the law, race-conscious admissions must be limited in time. Thus, the Court noted, “We expect that 25 years from now the use of racial preferences will no longer be necessary.”
The Court emphasized that diversity is a “compelling state interest” but that universities may not use quotas for members of racial or ethnic groups or put them on separate admissions tracks. The law school’s admissions policy satisfied these principles by ensuring that applicants are evaluated individually. Under that approach, the Court noted, a nonminority student with a particularly inter- esting contribution to make to the law school’s academic climate may sometimes be preferred over a minority student with better grades and test scores.
The net effect of the two rulings is to permit public and private universities to continue to use race as a “plus factor” in evaluating potential students—provided they take sufficient care to evaluate individually each applicant’s ability to contribute to a diverse student body. 115 The Court made clear that its rationale for considering race was not to compensate for past discrimination, but to obtain educational benefits from a diverse student body. Corporate hiring policies also will have to reflect the Court’s double message: Diversity efforts are acceptable, but quotas aren’t. 116