The U.S. Commission on Civil Rights (USCCR) has posted a report which recommends that the Equal Employment Opportunity Commission (EEOC) modify its position that the use of “English-only” policies is a presumptive violation of Title VII of the Civil Rights Act. See EEOC’s guideline at 29 C.F.R. § 1606.7 (2010). This report sets up an interesting dichotomy in the analysis of such policies by two governmental agencies, both of which ostensibly were formed primarily to insure civil rights.
While most individuals are aware of the existence of the EEOC, fewer have heard of the USCCR and its mission. The USCCR was established under the Civil Rights Act of 1957 as an independent, bipartisan, fact-finding federal agency. Its mission, according to its website, is “to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.” It does so by reviewing alleged deprivations of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, or national origin, or in the administration of justice. The agency plays a vital – but widely unrecognized – role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern both to the federal government and to the public.
Although the USCCR has been referred to as a civil rights “watch dog” that works to ensure that the federal government is enforcing civil rights laws fairly and evenhandedly, the original Commission was not configured to act as such. Originally, all of its members were appointed by the President and were subject to dismissal at any time. Also, because the Civil Rights Act first came into effect in 1964, the early USCCR had no actual civil rights laws to oversee. However, in recent years, the agency has publishing significant studies and reports on a wide range of the civil rights, including co-worker violence and bullying, race neutral enforcement of the law, and even human trafficking.
The USCCR’s recent report on English-only rules stems from a conference held in December 2008 at which the issue was discussed and analyzed at length by a number of experts in the field. A transcript of the conference and resulting briefing – which was carried live on C-SPAN – is available on the Commission’s website, www.usccr.gov, and by request from the Publications Office, U.S. Commission on Civil Rights, 624 Ninth Street, NW, Room 600, Washington, DC 20425, (202) 376-8128. Based on the testimony provided by panelists, and on discussion with Commissioners, the USCCP adopted findings and recommendations on various courts’ acceptance or rejection of the EEOC guidelines, the potential reasons, both good and bad, behind employer English-only policies, and actions the EEOC and Congress might take to clarify and improve the state of the law as applied to English-only policies under Title VII.
The USCCR’s primary recommendation stemming from the conference is that the EEOC’s guideline at 29 C.F.R. § 1606.7 should be withdrawn, and that instead, employers and employees should be informed that English-only policies should be prohibited only when it can be shown by a preponderance of evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin. This view could indicate a subtle shift in the burden of proof in cases involving English-only policies. Under the EEOC’s guideline, an English-only policy is presumed to be violative of Title VII unless the employer can show that the policy was enacted for a legitimate business reason; under the USCCR’s interpretation, an employee would have to show evidence of the purpose for which the policy was enacted, and prove that such evidence contravened Title VII.
Employers who have considered the implementation of an English-only policy should be aware that this issue has come into the limelight, and that further discussion and/or proposed legislation is possible.