Massachusetts: EEOC Takes on the Salvation Army over English Policy

[Harold F. Schiffman]

EEOC Takes on the Salvation Army over English Policy - Alleges
Discrimination

April 30, 2007 04:34 PM EDT

April 30, 2007 -- In a complaint filed at the end of March in the United
States District Court District of Massachusetts, the Equal Employment
Opportunity Commission says two Hispanic workers, one's national original
is the Dominican Republic, and the other's is El Salvador) were subjected
to discrimination by the Salvation Army "on the basis of their national
origin (Hispanic) by requiring them to comply with Defendant's
English-only rule, and terminating them because they failed to comply with
its proficiency requirement, spoke Spanish in the workplace and were not
fluent in speaking or understanding English."

The complaint says Dolores Escorbor and Maria Del Carmen Perdomo "both
began work at Defendant's thrift store in Framingham, Massachusetts in
1999. Spanish is their native language and they both speak very little
English."

The EEOC complaint alleges the following:

"They both worked commendably and without incident for at least five
years, relying on Spanish as their principal means of workplace
communication in their jobs as clothes sorters.  In 2004, Defendant
decided to enforce a written English language policy at the Framingham
store, which it had not previously enforced while Escorbor and Perdomo had
been employed.  It delayed enforcement of the policy for at least a year.

During this year, employees who could not speak English adequately were
told they needed to learn English, even though learning English was not a
part of the written English language policy and was unrelated to the jobs
they had been performing since 1999.  On or about December 21, 2005,
Defendant terminated both Escorbor and Perdomo for failing to learn
English and for speaking Spanish.

The effect of the practices complained of above has been to deprive
Escorbor and Perdomo of equal employment opportunities and otherwise
adversely affect their status as employees because of their national
origin, and to inflict emotional pain, suffering, loss of enjoyment of
life, embarrassment, humiliation, and inconvenience upon Escorbor and
Perdomo.

The unlawful employment practices complained of above were intentional.
The unlawful employment practices complained of above were done with
malice or with reckless indifference to Escorbor's and Perdomo's federally
protected rights."

In a statement Major Karla Clark, the Salvation Army's Eastern Territory
Community Relations and Development Secretary said the following:

"The Salvation Army has longstanding national and international policies
that denounce any form of discrimination based on ethnic origin, among
other factors, whether in the provision of our religious and charitable
services or in employment.

Indeed, our mission is "to preach the gospel of Jesus Christ and meet
human needs in his name without discrimination."   We believe that there
is no legal basis for the complaint filed by the EEOC and we vigorously
dispute any suggestion that we have violated the law with respect to these
plaintiffs.

We are confident that the legal process will confirm that our employment
policies serve only to protect the welfare and safety of our employees and
those whom we serve in fulfillment of our mission."

In Montgomery, Heather Holcomb, Director of Public Affairs for the local
Salvation Army corps, says she has heard of the lawsuit and says,
"Employee job descriptions do state they must read and write English, but
I know we've never had a problem with it here locally."

The EEOC is asking the court to

"Grant a permanent injunction enjoining Defendant, its officers,
successors, assigns, and all persons in active concert or participation
with them, from engaging in any employment practice which discriminates on
the basis of national origin.

Order Defendant to institute and carry out policies, practices, and
programs which provide equal opportunities for Hispanic employees and
which eradicate the effects of its unlawful employment practices.

Order Defendant to make Escorbor and Perdomo whole by providing
appropriate back pay with prejudgment interest, in amounts to be
determined at trial, and other affirmative relief necessary to eradicate
the effects of its unlawful employment practices, but not limited to front
pay and reinstatement.

Order Defendant to make Escorbar and Perdomo whole by providing
compensation for past and future nonpecuniary losses resulting from
unlawful employment practices described above, including but not limited
to job search expenses and contributions to pension and health insurance
funds, in amounts to be determined at trial.

Order Defendant to make Escorbor and Perdomo whole by providing
compensation for past and future nonpecuniary losses resulting from
unlawful employment practices described above, including but not limited
to emotional pain, suffering, loss of enjoyment of life, humiliation, and
inconvenience to be determined at trial.

Order Defendant to pay Escobar and Perdomo punitive damages for its
malicious and reckless conduct described above, in amounts to be
determined at trial."
The Salvation Army has until June 1st to respond.  The EEOC is asking for
a jury trial.

There is a 2003 case, Cosme v. The Salvation Army, 284 F. Supp.2d 229
(D.Mass) in which a judge upheld the Salvation Army English Language
policy.  However, there are differences in the cases but as to the English
Language issue the judge had the following to say:

"The Salvation Army had several rules relating to employee conduct and
protocol, which included an English Language Policy, time sheets, and
punctuality.  The Employee's Manual provides a list of behavior
constituting unsatisfactory conduct, including provision forty-two, which
proscribes

[w]illful violation of the English Language Policy for Adult
Rehabilitation Centers.  This policy states that at all times while on the
center premises, other than during break and meal periods and before and
after work, every employee shall utilize English, to the best of the
employee's ability, when speaking to any other employee, beneficiary,
customer or to a supervisor.  This rule shall not apply to conversations
between employees held in nonworking areas, such as lunch room, break
room, and restrooms.  This rule shall also not apply where an employee at
the center is engaged in a conversation with a thrift store customer in a
language other than English, which both the employee and the customer
understand.  This rule shall also not apply when a supervisor requests
that an employee interpret a conversation for the supervisor, another
employee, or a customer." Guzicki Aff., Ex. HH [Docket No. 18] at 11."

Just as in the present case the court says in the 2003 order  that it
appears the Salvation Army supervisor "did not strictly enforce the
various rules and policies at the store, including the English Language
Policy.  At some point in 1999, however, in response to her fear that
employees were taking advantage of her, Guerre''s supervisor suggested she
become more strict in enforcing the rules."

Chief District Judge William G. Young said also:

"... The Court, however, is not persuaded by Cosme's argument because the
Salvation Army's English Language Policy provides a clear and valid basis
for such requests.  Therefore, the question is whether Guerre displayed
discriminatory animus against Cosme indirectly.

"The presumption of discrimination may be rebutted in the second stage of
the analysis if the employer can articulate "a legitimate,
non-discriminatory reason for its action" backed by "credible evidence
[showing] that the reason or reasons advanced were the real reasons."
Wheelock College, 371 Mass. At 136, 138.

Finally, if an employer presents a non-discriminatory reason for its
decision with an adequate evidentiary backing, the plaintiff must persuade
the trier of fact by a preponderance of the evidence that discriminatory
animus was the "determinative cause" for the employer's decision.
Lipchitz, 434 Mass. At 504.  A fact-finder's decision in this third stage
may be based, either in whole or in part, on a determination that a
legitimate reason for the employer's decision advanced in stage two was
actually a pretext.

"While there may be some support for Cosme's argument that termination for
speaking Spanish is impermissible, Cosme has not carried her burden of
proving pretext.  As a preliminary matter, an English Language Policy does
not, in and of itself,  constitute discrimination or disparate treatment
for bilingual employees....In addition Cosme argues that the English
Language Policy adopted by the Salvation Army violates Equal Employment
Opportunity ("EEOC") Regulations, which lends further support to her
discrimination claim...

In relevant part, the EEOC regulations distinguish between blanket rules
requiring that English be spoken at all times, which the regulations
prohibit, and more limited rules requiring that English be spoke at
particular times...With respect to more limited rules, the regulations
provide that "[a]n employer may have a rule requiring that employees speak
only in English at certain times where the employer can show that the rule
is justified by business necessity...While the EEOC regulations may offer
guidance to the Court, the Court is not bound by them...

Moreover, even if this Court were to follow the EEOC regulations in
question, it is clear that, while the EEOC does not favor English-only
policies, the mere existence of one does not necessarily violate the
regulations...

But Judge Young in the 2003 sided with the Salvation Army, he hardly gave
the employee handbook, as it stood back then, a ringing endorsement.  I
have been unable to confirm whether or not the handbook has been updated.

"Similarly in this case, the Salvation Army's employee handbook - received
by all new employees, thereby providing proper notice - describes the
legitimate business reasons for its policy" "to promote workplace harmony
by ensuring that employees are able to communicate with customers,
coworkers and supervisors: to help managers monitor employees, and to
improve productivity and efficiency.... Although this handbook was
available only in English and the Salvation Army failed to produce an
affidavit or testimony to verify the stated purpose, the Court finds that
the Salvation Army has - albeit minimally - complied with EEOC
regulations, even if the regulations were binding on this Court...

Reported by:  Helen Hammons

http://www.wsfa.com/global/story.asp?s=6445581&ClientType=Printable
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