Gutiérrez v. Municipal Court
838 F.2d. 1031 (9th Cir. 1988)<1>
When it was delivered in 1988, this
ruling by the 9th U.S. Circuit Court of Appeals had a dual significance.
It both outlawed arbitrary English-only rules in the workplace and declared
that Proposition 63, California's Official English declaration was "primarily
a symbolic statement." Because the decision was vacated by the U.S.
Supreme Court the following year (not on its merits, but because the plaintiff
no longer had standing) Gutiérrez lacks precedential
value. Nevertheless, it suggests how federal courts might view similar
cases in the future. At issue was a speak-English-only rule for municipal
court clerks in Huntington Park, California. Ironically, the clerks whose
speech was most affected had been hired for their bilingual skills, which
they used to translate for Spanish-speaking members of the public. At all
other times, except for lunch and coffee breaks, they were required to
speak English. Citing guidelines of the federal Equal Employment Opportunity
Commission (E.E.O.C.), the court held the English-only policy to be illegal
It is worth noting, however, that
another federal appeals court took a conflicting view of similar issues
in García v. Gloor, a case that predates the E.E.O.C.'s
addition, a minority of the 9th Circuit judges questioned the reasoning
of the Gutiérrez decision, as revealed by their comments
on a procedural motion. Judge Stephen Reinhardt delivered the court's opinion
in the case, on behalf of a unanimous three-judge panel, on January 27,
Few courts have evaluated the lawfulness of workplace
rules restricting the use of languages other than English. Commentators
generally agree, however, that language is an important aspect of national
origin. The cultural identity of certain minority groups is tied to the
use of their primary tongue. The mere fact that an employee is bilingual
does not eliminate the relationship between his primary language and the
culture that is derived from his national origin. Although an individual
may learn English and become assimilated into American society, his primary
language remains an important link to his ethnic culture and identity.
The primary language not only conveys certain concepts, but is itself an
affirmation of that culture.
From the standpoint of the Anglo-American, another person's
use of a foreign language may serve to identify that individual as being
of foreign extraction or as having a specific national origin. Because
language and accents are identifying characteristics, rules which have
a negative effect on bilinguals, individuals with accents, or non-English
speakers, may be mere pretexts for intentional national origin discrimination.
Although Title VII [of the Civil Rights Act of 1964] does
not specifically prohibit English-only rules, the E.E.O.C. has promulgated
guidelines on the subject.<3>
The E.E.O.C. recognizes that "[t]he primary language of an individual
is often an essential national origin characteristic," and that an
English-only rule may "create an atmosphere of inferiority, isolation,
and intimidation." Although an employer may have legitimate business
reasons for requiring that communications be exclusively in English, an
English-only rule is, according to the E.E.O.C., a burdensome condition
of employment that is often used to mask national origin discrimination
and that must be carefully scrutinized. Accordingly, the E.E.O.C. concluded
that while a limited English-only rule may be permissible in some circumstances,
no such rule will be deemed lawful unless the employer can show that it
is justified by business necessity and notifies the employees "of
the general circumstances when speaking only in English is required and
of the consequences of violating the rule." ...
[T]he English-only rule in the case before us is concerned
primarily with intra-employee conversations, work-related and non-work-related.
It is in no way limited to the sale or distribution of the employer's product
and there is no contention that the employees' conversations among themselves
in Spanish have any effect on those who use the courts. Yet, the prohibition
on intra-employee communications in Spanish is sweeping in nature and has
a direct effect on the general atmosphere and environment of the work place.
[A]ppellants contend that the rule is necessary to prevent
the workplace from turning into a "Tower of Babel." This claim
assumes that permitting Spanish (or another language) to be spoken between
employees is disruptive. Even if appellants' unspoken premise were true,
the argument fails. ... Since Spanish is already being spoken in the Clerk's
office, to non-English-speaking Hispanic citizens, part of the "babel"
that appellants purport to fear is necessary to the normal press of court
business. Additional Spanish is unlikely to create a much greater disruption
than already exists. Because the "babel" is necessary and has
an apparently permanent status, its elilmination in the area of intra-employee
communication cannot be termed essential to the efficient operation of
the Clerk's office. ...
[A]ppellants assert that the rule is necessary to promote
racial harmony. They contend that Spanish may be used to convey discriminatory
or insubordinate remarks and otherwise belittle non-Spanish-speaking employees.
Appellants, however, have failed to offer any evidence of the inappropriate
use of Spanish. In contrast, there is evidence indicating that racial hostility
has increased between Hispanics and non-Spanish-speaking employees because
Hispanics feel belittled by the regulation. There is also evidence that
non-Spanish-speaking employees have made racially discriminatory remarks
directed at Hispanics. As the E.E.O.C. has warned, prohibiting the use
of the employees' native tongue may contribute to racial tension. Appellants'
argument that the English-only rule fosters racial harmony is unsupported
by the evidence and is otherwise generally unpersuasive.
Appellants further contend that whatever the actual facts
may be, non-Spanish-speaking employees believe that Spanish-speaking employees
used Spanish to conceal the substance of their conversations and that the
English-only rule is necessary to assuage non-Spanish-speaking employees'
fears and suspicions. Appellants' contention is based on a single complaint
allegedly made by an employee, a complaint based, at most, on suspicion.
... However, even if there were evidence that a regulation mandating the
use of English during working hours would calm some employees' fears and
thereby reduce racial tension to some extent, this would not constitute
a business necessity for a rule that has an adverse impact on other persons
based on their national origin. Existing racial fears or prejudices
and their effects cannot justify a racial classification.<4>
Next, appellants argue that the English-only rule is required
by the California Constitution. Appellants assert
that [Article III,] section 6, added by the voters as a ballot initiative
in 1986, requires the use of English in all official state business, and
thus requires Hispanic employees to communicate in English while at work.
Appellants' argument is unpersuasive. ... While section 6 may have some
concrete application to official government communications, if and when
the measure is appropriately implemented by the state legislature, it appears
otherwise to be a primarily symbolic statement concerning the importance
of preserving, protecting, and strengthening the English language. ...
Although the precise question of private conversations
among public employees was not addressed in the ballot arguments, it appears
that the distinction the proponents attempted to draw was between official
communications and private affairs. While the initiative addressed, and
arguably may have sought to regulate, the former subject, most if not all
of the speech barred here would fall in the latter category. ... [I]ronically,
while the English-only rule at issue here totally bars private speech
in Spanish during on-duty periods, use of the Spanish language for official
communications is not only permitted by the government employer, but
in a large number of instances is expressly mandated.<5>
English-only rules generally have an adverse impact on
protected groups and ordinarily constitute discriminatory conditions of
employment. Here, none of the justifications appellants offer for their
English-only rule meets the rigorous business necessity standard. ... [W]e
note that the district court's injunction is more favorable to the employer
than the business necessity test permits: the injunction allows restrictions
to be imposed based on public relations concerns. Public relations concerns
do not constitute a business necessity. If such concerns were sufficient,
a major goal of Title VII would be thwarted because employers would be
free to consider public prejudices when setting employment policies. ...
A majority of 9th Circuit judges
declined to rehear the Gutiérrez case en banc,
that is, as a full court. Three dissenting judges, who favored
reviewing the decision, voiced substantive objections to the panel's ruling.
Their rationale was expressed in an opinion by Judge Alex Kozinski, an
excerpt of which follows.
By any rational standard, this case cries out for en
banc reconsideration. The panel's opinion creates a square conflict
with the Fifth Circuit's opinion in García v. Gloor.
The panel also buries a prior opinion of this circuit whose holding is
directly contrary.<6> Perhaps
most disturbing, the panel reaches a result that severely undermines the
principal goal of the Civil Rights Act of 1964, equal opportunity in the
workplace. By giving employees the nearly absolute right to speak a language
other than English, the panel's opinion will exacerbate ethnic tensions
and force employers to establish separate supervisorial tracks for employees
who choose to speak another language during working hours. This is not
what the Civil Rights Act was meant to accomplish. ...
We need not trot out a parade of horribles; this case
illustrates the problem effectively enough. The case arises out of racial
and ethnic tensions among the employees of the Southeast Los Angeles Municipal
Court, largely between blacks and Latinos. The English-only rule was not
adopted by the Municipal Court judges out of xenophobia, but in response
to a "complaint from a black female employee concerning the use of
the Spanish language between employees in order to conceal the substance
of conversation during working hours on the work floor. ..." The rule
was also intended to assist "supervisors to understand the work conversations
of their subordinates. ..."<7>
The rule was adopted because [according to the Los
Angeles Times, April 11, 1985, pt. IX, p. 1] "several of the
27 full-time clerks, including Anglos, blacks, and even some Latinos complained
that a handful of Latino clerks were increasingly using Spanish to cloak
their conversations and occasionally made it clear that they were discussing
co-workers." One employee reported a particularly distressing incident:
Suzanne Cook, a black employee who was among the first
to complain about the use of Spanish ... recalled a day at work when she
tripped or dropped something "and the banter in Spanish really got
going, and it was obvious that they were laughing at me for doing something
If she had understood their jokes, she said, "it
wouldn't have been a real big thing, because I would have just shot a comment
back. But instead I had to keep it inside, and that was incredibly frustrating.
After months of that kind of tension, I was looking for a new job."
The English-only rule had broad employee support. The
record contains a letter, signed by eight employees who were concerned
that the rule might be overturned:
If the [Municipal Court] Judges ruling is overturned it
will have an adverse effect. Spanish is not essential when relating to
fellow employees, and in many cases is used to undermine supervision and
to talk about fellow employees. Feelings are hurt and tension builds. This
is when employee camaraderie and morale begin to deteriorate. ...
The ruling was initially intended to create a more harmonious
working atmosphere for all employees. It has now been turned into an issue
of ethnic background and civil rights. In reality the only issue
is common courtesy.
The question of what authority an employer has to address
language-related tensions in the workplace is one of exceptional importance.
As sad experience elsewhere has shown, language can be a potent source
of racial and ethnic discrimination, exacerbating geographic, cultural,
religious, ethnic and class divisions. In Canada, for example, the bitter
mutual resistance of French- and English-speaking citizens toward one another's
language has taken on the characteristics of a racial confrontation.<8>
Other examples abound: The long-standing divisions between the French-speaking
Walloons and the Flemish-speaking population of Belgium and the "language
demands" in various regions of India reflect linguistic as well as
class and ethnic divisions of the most invidious sort.Several commentators
note that language differences have become emblems of class as well as
ethnic group membership; often the dispute over dialect or language choice
disguises deeper racial or religious division.<9>
The separatist movements by the Corsicans of France, the Basques of Spain,
the Tamils of Sri Lanka, the Kurds of Turkey and Iraq, and the Sikhs of
India have been reinforced and to some extent inspired by linguistic differences.<10>
Although the United States has become the home for people
from all parts of the world, we have been spared much of the language-related
agonies experienced elsewhere. A nation of immigrants, we have been willing
to embrace English as our public language, preserving native tongues and
dialects for private and family occasions. When employees bring their private
language into a public workplace, this creates a difficult and sensitive
problem for those around them who do not speak the language. Of course,
where employees are unable to speak English, or where they are denied a
benefit because they are identified with a particular language or ethnic
group, the Civil Rights Act protects them; language is, for them, an immutable
characteristic. But where employees are perfectly capable of speaking English,
it is a much closer question whether they should be entitled to converse
in another language during working hours while performing work functions.
The right answer will vary with the particular fact situation and ought
not to be set in concrete for all employers and all employees.
As this case illustrates, having employees use a language
other than English can seriously undermine workplace morale. Here, the
Municipal Court judges acted in response to a legitimate complaint by a
black employee about what she believed were insulting comments made in
a language she could not understand. An English-only rule may not make
sense in all situations; sometimes it may be counterproductive, causing
more hurt feelings than it saves. But it is highly unwise to prohibit all
employers everywhere from adopting such a rule, even when they have reason
to believe that language is being used to exclude and isolate employees
of a particular race or ethnic group. Our society is too complex, and the
factual permutations far too diverse, to permit the imposition of a universal
rule by judicial fiat.
The opinion gives an important insight into the types
of problems we are creating for ourselves by failing to repudiate the rule
the panel adopts. In response to the defendants' arguments that non-Spanish-speaking
supervisors will be unable to supervise employees who speak Spanish during
working hours, the panel offers a facile solution: "employ Spanish-speaking
supervisors." This "let them eat cake" attitude masks a
very serious problem: By deciding to speak another language during working
hours, employees can limit who may qualify for supervisorial positions.
If fluency in a second language is the sine qua non of supervisorial status,
employees who are not bilingual, including other people of color, will
be effectively eliminated from consideration for these coveted positions.
Given the natural competition for supervisory posts, Gutiérrez
may well exacerbate racial tensions. It is incomprehensible to me that
this result is being reached in the name of a law designed to promote ethnic
and racial harmony in the workplace. ...
1. En banc rehearing denied, 861 F.2d
1187 (9th Cir. 1988), vacated as moot 109 S.Ct. 1736 (1989).
2. 618 F.2d 264 (5th Cir. 1980), cert. denied,
449 U.S. 1113 (1981); see analysis by Edward M. Chen.
3. 29 C.F.R. § 1606.7 (1987).
4. Palmore v. Sidoti, 466 U.S. 429, 433-34
5. We also note that if the Municipal Court rule forbade
communication in Spanish with the non-English-speaking public, serious
questions of denial of access to the courts would be presented, and possibly
other constitutional questions as well.
6. Jurado v. Eleven-Fifty Corp., 813
F.2d 1406 (9th Cir. 1987).
7. Declaration of Joseph Sharar, Chief Clerk and Court
Administrator, Huntington Park.
8. See John Porter, "Ethnic Pluralism in Canadian
Perspective," in Ethnicity: Theory and Experience, ed.
Nathan Glazer and Daniel Patrick Moynihan (Cambridge, Mass.: Harvard University
Press, 1975), p. 268.
9. See, e.g., Pierre L. van den Berghe, The Ethnic
Phenomenon (New York: Praeger, 1987), p. 211 (arguing that the
"real impetus to Québecois nationalism ... has been a class
conflict in linguistic disguise"); William Petersen, "Subnations
of Western Europe," in Glazer and Moynihan, pp. 198-208; Jyotirindra
Das Gupta, "Ethnicity, Language Demands, and National Development
in India," in Glazer and Moynihan, pp. 466-86.
10. See Donald L. Horowitz, Ethnic Groups in
Conflict (Berkeley: University of California Press, 1985).