In another laughable, irresponsible, and certainly illegal move (far overreaching any possible regulatory claim), the Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against a private company that fired employees who could not effectively communicate in English. The EEOC lawsuit alleges that this violates Title VII of the Civil Rights Act of 1964, which bans discrimination based on “national origin”.
The EEOC’s logic argues that this includes “the “linguistic characteristics of a national origin group.” The EEOC is in fact saying that a business may not use its own judgment as to whether its employees need to speak English fluently, whether or not there is any evidence of discrimination.
This lawsuit has shades of another ludicrous overreach in June of 2013 by the EEOC that also referenced Title VII “discrimination” in their cases, alleging that,
“BMW manufacturing facility in South Carolina, and the largest small-box discount retailer [Dollar General] in the United States violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment”
These cases appear to have been filed soon after a December 2012 “strategic enforcement plan” was issued by the EEOC “that included targeting background checks as a barrier to employment of minorities”. Within six months, both BMW and Dollar General were sued.
However, the rulings did not go quite the way the EEOC would have liked. Judicial Watch noted that, “U.S. District Court Judge Roger Titus lambasted the administration’s expert data, writing that it was “laughable”; “based on unreliable data”; “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors”; “completely unreliable”; “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; “distorted”; “both over and under inclusive”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.”
There are simply no facts to support a theory of disparate impact, the judge writes, further stating: “By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”
Having recovered from the sting, the EEOC is back spending taxpayer funds to target private businesses with frivolous lawsuits. According to their press release regarding Wisconsin Plastics, Incs “the EEOC’s pre-suit administrative investigation revealed that WPI fired the Hmong and Hispanic employees based on 10-minute observations that marked them down for their English skills, even though those skills were not needed to perform their jobs”
Furthermore, according to the EEOC Chicago Regional Attorney John C. Hendrickson, “Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law”
Wisconson plastics, Inc, on the other hand, maintains that the EEOC claims are “false and absolutely without merit”. The EEOC counters that English language requirements are justifiable only when “ absolutely necessary “for an employer to operate safely or efficiently.” but simultaenously admits that “there is no precise test for making this evaluation.”
The Wisconsin Plastic, Inc explains that there “the layoff decisions at issue in the fall of 2012 were made on the basis of the employees’ overall comparative skills, behaviors and job performance over time. Though the decisions were difficult, they were necessary in order to ensure the ongoing stability of Wisconsin Plastics for the benefit of WPI’s customers, its shareholders, the community and the roughly 275 current company and temporary employees.”
So a company operates to benefit its customers, shareholders, the community, and its employees. This sometimes results in a hard decision to discontinue the employment of an employee or employees whose performance does not positively benefit the company to a company-decided level of satisfaction.
The fact that the EEOC can instead arbitrarily decide it knows the intentions of a company better than a company itself, and moreover, sue that company for discrimination when the company decides to terminate an employee that is just not working out, is utterly outrageous.
Let’s hope that the next judge is as wise as the one who presided over the BMW and Dollar General court cases.