Layoffs for Inability to Speak English May Be Discriminatory

By Jeffrey Rhodes Jun 1, 2016
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A plastics manufacturer that laid off Asian and Hispanic employees based on their inability to speak English after earlier hiring the employees despite this fact may have engaged in race or national origin discrimination, the U.S. District Court for the Eastern District of Wisconsin ruled.

Wisconsin Plastics Inc. (WPI) in Green Bay had 114 production operators, of whom 85 (75 percent) were Asian and 6 (5 percent) were Hispanic. Between October 2012 and January 2013, WPI laid off 38 of the production operators, of whom 28 (74 percent) were Asian and 3 (8 percent) were Hispanic. WPI replaced the laid-off production operators by hiring 88 people, of whom 62 were Caucasian, to increase its number of employees with English language skills. 

Based on these layoffs, the Equal Employment Opportunity Commission (EEOC) brought a federal court lawsuit against WPI alleging employment discrimination based on race and/or national origin. The laid-off employees were allowed to intervene as plaintiffs in the lawsuit. WPI moved for summary judgment, asking the court to dismiss the lawsuit because its decision was based on English language skills and did not have a discriminatory motive.

The U.S. District Court for the Eastern District of Wisconsin considered whether an employment decision based on the ability to speak English necessarily violates Title VII of the Civil Rights Act of 1964. The court treated the claim as one of intentional discrimination, rather than undertake a statistical analysis of the disparate impact of WPI’s layoff decisions.

WPI admitted that the job of production operator could be adequately performed by people who do not speak or read the English language. Nevertheless, WPI viewed the inability to speak English as a negative factor when deciding whom to lay off, and claimed that this inability to speak English was a nondiscriminatory reason for layoff. The former employees, on the other hand, claimed that a preference for English-speaking employees is so inherently suspicious that it cannot constitute a nondiscriminatory reason.

The court disagreed with both positions, reasoning that an employer could justifiably consider an employee’s inability to communicate as a limitation to the employee’s ability to advance, and that English-speaking skills make an employee more valuable to the company. However, the inability to speak English was not necessarily a legitimate, nondiscriminatory reason for discharge. Rather, there is a strong correlation between people who do not speak English, a class that is not protected, and national origin, which is a protected class.

Based upon the indirect evidence of discrimination presented, including WPI’s admission that English ability was not necessary for the position, and the fact that WPI hired other people shortly after laying off the plaintiffs, the court denied WPI’s motion for summary judgment. The court ruled that whether English-speaking ability was truly important to WPI, or whether it was instead an excuse to discriminate based on race or national origin, would be decided by a jury.

EEOC v. Wisconsin Plastics Inc., E.D. Wis., No. 14-C-663, (May 5, 2016).

Professional Pointer: While courts have recognized that English-speaking ability can be a legitimate job requirement, employers should always carefully consider whether any actions taken based on employees’ English skills or other qualities closely related to race or national origin could be considered an adverse action. Relying on such factors creates the potential for a discrimination lawsuit and trial to evaluate the legitimacy of the employer’s decision.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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