Suit hits English requisite
Language requirements unfair for some jobs, Latino plaintiff says
By Rhina Guidos
The Salt Lake Tribune
OGDEN - From a small duffel bag, Ana Ayala pulls out a stack of papers. They are descriptions of service jobs, such as maids, assembly line workers, warehouse workers, food servers, yard workers. What they have in common is that they pay between $5 and $9 an hour - and some require workers to speak, read and/or write English.
As a job counselor at the Utah Department of Workforce Services, Ayala is responsible for connecting potential employers and employees.
But she says the English-language requirement has forced her, as an employee of the DWS in Ogden, to violate the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin.
"I said, 'Does this agency not realize it's breaking the law?' " Ayala says of an office conversation about the English language requirement for certain jobs.
Ayala has filed a federal lawsuit against her employer for unlawful discrimination and employment practices, claiming the DWS allows prospective employers to include the English requirement on job forms even when it's not needed to perform the work.
Ayala says the job descriptions are aimed at excluding Latinos like herself.
"I can understand if you're a nurse, radiologist or a chemist," said Ayala, who has worked with the DWS for seven years. "[But] cooks, construction workers, maids, production . . . they're the types of jobs that immigrants do right now."
Curt Stewart, spokesman for the DWS, said the agency does not comment on pending lawsuits. He does say that not only does the DWS not discriminate, it has taken ambitious steps toward helping Latino clients. Earlier this year, the agency received a national award for equal opportunity programs and services.
Ayala scoffs at the award, saying that one of the agency's grant programs helped a local company design an English-language education program that got employees fired for not passing an English-language test.
Stewart points proudly at an agency hire: a Latino staffer to work exclusively with the Spanish-speaking population. The DWS also has posted a translation service on its Web site, Stewart says. "It doesn't make any sense to discriminate."
Brian Barnard, a civil rights attorney in Salt Lake City, said the posted job descriptions with the English-language requirement are "troublesome, at least."
"What that kind of [advertisement] essentially says is 'foreigners, don't apply,' " Barnard said.
It would be different if an employer asked for a certain education level, he said, because that would be a requirement that would apply to all people, not just certain ethnic groups. For example, if an employer required a high school diploma and an Anglo applicant with a fourth-grade education applied for the job, he or she would be turned away based on a skill set, not ethnicity, he said.
Employers dictate the job descriptions to employees at the DWS who type them on a form posted on the agency's Web site or in its books. Stewart says that if an employer tells the agency that a prospective worker needs English to perform the job's duties, they are asked to justify the demand.
"And the justification has to be a good one," he said.
Job counselors like Ayala use those descriptions to connect workers and jobs. But she says that when Latino, and sometimes Asian, workers see the requirement, they often shy away even if they have working knowledge of English.
Stewart says the agency would not print a job description that states specifically that particular ethnic groups are excluded.
"As long as everything is legal, if an employer requests something and it's their right within their law," the agency prints it, he said. "It's the employer's preference."
Michael O'Brien, an employment attorney with Jones Waldo Holbrook & McDonough in Salt Lake City, says employers are within their right to ask that a particular language be spoken as long as it is for legitimate business reasons. For example, he says, an employer may need the worker to communicate with the English-speaking public, he said.
Such job descriptions can be suspect, O'Brien says, but they are not completely illegal. "You need to look at facts before making that determination."
In August 2002, the U.S. Equal Employment Commission sided with Ayala after looking through job descriptions and the jobs themselves.
"Evidence showed that many of the posted positions clearly did not require English fluency in order to satisfactorily perform the job duties of the jobs. This had an adverse impact on Hispanic and Asian applicants for employment, including those who spoke no English or [spoke] English with limited proficiency," the EEOC found.
The EEOC also ruled that Ayala was forced to work in a hostile work environment for her objections to the practice, and cleared the way for her lawsuit in U.S. District Court for Utah. She is seeking a judgment that the DWS engaged in unlawful employment practices and an injunction barring it from doing so again. She also seeks damages to be awarded at trial and protection against any attempt to fire her for filing the suit.
The case is scheduled to be heard in 2006. For now, the DWS continues to use the English-language descriptions on its postings, and Ayala says potential applicants remain fearful about English fluency requirements.
"It's patronizing to say 'if you don't speak English, you're dumb,' " Ayala says. |
