GUEST POST: Language Discrimination and the Law

by Eh Nonymous of Unused & Probably Unusable

Introduction

This post makes two arguments, one incidental, and one primary: English-only should not be the law of the land, and language discrimination should not be permissible.

Let's take them in reverse order. If I were to allow speakers of one particular foreign language in my employ, but not another, to speak among themselves, based purely on thinking one language is superior, I would be engaged in irrational and possibly racial/ cultural/socioeconomic discrimination. The point, however, isn't that it's racist as to speakers of Gaelic, or Arabic, or Spanish, or pick your language; it's that it is most likely going to be irrational and based on ignorance, possibly malicious ignorance. I therefore argue that language discrimination is and should be illegal.

The first claim is more open to debate by reasonable people, but I think it is actually the less-legally-controversial conclusion. For example, you can't force someone to conduct their life in English and no other language; where there is a need in a community, reasonable accommodation by providing official forms in more than one language is mandated; you can't criminalize the teaching of foreign languages (this is what Breyer was referring to in the Lawrence oral arguments); new citizens are not to be made second-class by the requirement of flawless or accentless speaking of English, when even citizens by birth need not pass such strict (and unfair) standards.

In addition, you can't force someone to be able to speak English in order to vote. See 42 USC s. 1973(c)--

Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.

For an example of that rule in action, see the complaint in United States v. Berks, PA (an Ashcroft-era case) which is signed by Justice Department attorneys from the Voting section of the Civil Rights Division.

Background: the Question Presented

I was recently approached by a prospective client who believed she had suffered two forms of discrimination or harassment. The first was a sex harassment claim, instantly recognizable as such even if she had not used the term, involving unwanted touching by her supervisor, inappropriate comments, and other behavior that made her feel violated or otherwise uncomfortable. I referred that claim on to another lawyer once I had established that her version of the facts was specific, documented, and probably corroborated. (I'm currently involved in trials, and thought that she ought not to have to wait for me to finish in November in order to move forward with her claim.)

The other claim involved, she said, race discrimination. When I asked what facts underlay that claim, she said the (same) supervisor denied her the right to speak Spanish to her co-workers while at work. The pretext: he would not be able to tell if she was threatening to attack them after work. Even over the phone I could tell this sounded specious; the caller did not sound to me like someone with the intimidating presence necessary to deter coworkers from complaining about illegal threats. She also said that when a customer needed to speak to someone in Spanish, he ordered her to do so, but did not rescind the previous (unofficially adopted, oral) policy.

My first impressions were: Sounds like a bad idea. Free speech? Right to speak one's native language? This isn't race discrimination unless it's on the basis of race; would the supervisor care if the worker wasn't Hispanic (who, recall, can be of any race) but wanted to speak Spanish anyway? What if it was another language?

I told the client that I thought it sounded like a weaker claim, that I thought it might be legal but that I wasn't sure, and that I disapproved of the policy. So the issue: is language discrimination illegal?

My views

English-only: There's nothing rational about English (cf. Twain, the Awful German Language) as the much-noted discussions about its awful spelling demonstrate. For example, see Mark Rosenfelder's Hou Tu Pranownse Inglish. English-only is therefore irrational. In order to give our students a fighting chance at mastering English, we've got to teach foreign languages, just as we've got to teach some history, some art, some music, some physical education, and some math. It benefits us all when graduates of high school have had some of all of those. There is something rational about wanting all our children, or all our citizens, to be able to speak English, which is (currently) the majority language. That is hardly what proponents of English-only are promoting.

Language discrimination: There's also nothing rational about denying people the right to speak other languages. Fear of conspiracy, concern for liability, concerns for professionalism all collide with both the First Amendment and personhood rights. Yes, an employer can dictate how people behave. But that shouldn't include forcing women to be more feminine if that's not germane to the job, nor should it mean that employees can't speak their native language to each other.

English is the majority language of the U.S. Most residents and most citizens speak it. We have small regions and (currently) minority populations scattered throughout regions who speak other languages. There are efforts to mandate language study, prevent it, preserve dying languages, standardize, discriminate against foreigners and immigrants, encourage English-language-learning, and otherwise use language as a political football. Xenophobia and anti-immigrant bias is a part of all this; so is nativism, patriotism, and misguided linguistic zeal.

You wouldn't think something so basic ("The three-legged stool of understanding is held up by history, languages, and mathematics. Equipped with these three you can learn anything you want to..." - Heinlein) would be so controversial.

And yet, everyone thinks they are an expert on language, because they themselves speak (at least) one. Everyone thinks they know the One Right Way, and that includes people with a grave ignorance of languages, or history, or math. (See this comment at another blog,in the wake of a firestorm of ignorant comments regarding research on the female orgasm)

As a lawyer, I seldom use my foreign language skills, but my work often requires a sense of history, facility with numbers, and excellence in spoken and written English. And excelling in English is practically impossible without some experience outside of it.

Other Resources

For a very simple take on this topic ("Language discrimination is wrong!") which inspires some sympathy but doesn't go deep into the legal analysis, see this page, with a heavily loaded title: "Language Discrimination: Is it Fair?" I like the chart, but we need to get beyond the 1919 Supreme Court Case (yes, you can teach German to students) and the subsequent high-profile decisions (yes, denial of insurance applications based on poor grasp of English is both sensible and illegal; yes, it makes sense to recognize that when students speak a language at home you can use it to teach proper English - also known as the massively misunderstood Ebonics controversy, which is about as widespread a misunderstanding as the so-called Twinkie Defense, which wasn't).

See also this news story from last year, "Language Discrimination Could be Tough to Prove," LA Times, Dec. 19, 2004, and the ACLU of Northern California's page on this "developing area of law."

English-only: fact, law, or wishful thinking?

Language Log, my one-stop source for Legal Underground-like frivolous seriousness about all manner of linguistic questions (frequently updated, many regular posters, good searchable archives) has a number of archived posts about English-Only.

They refer to it as "Nativism," which to me is an ideology of stupidity, holding that natives are better than non-natives, which is true, historically, if one ignores famous immigrants including Albert Einstein, Werner von Braun, Mikhail Baryshnikov, Gloria Estefan, Bob Hope, Henry Kissinger, Andy Garcia, Yao Ming, Carlos Santana, Gene Simmons, and Jim Carrey.

In the above-linked post called "Nativism Clings to Life at 100 or 101," Geoff Nunberg addressed the social-linguistic-political theory that Spanish is different, when it comes to impacts on American society and culture, and so stern measures are needed. A silly theory, it seems to me, but some hold it. There's no accounting for a lack of brains.

The theory involved touches on ideas of citizenship, participatory democracy, and licensing. Who can drive a car? Who can get a license? Who's entitled?

The fascinating debate over disenfranchising (that is, removing the right to vote of) felons hosted by Legal Affairs (Roger Clegg - pro, and Marc Mauer - anti) was about citizenship rights rather than linguistic minority rights, but the issues are the same. (Aside: the archives of Legal Affairs' Debate Club are an excellent way to kill a few hours of your time. Some past topics of general or lawyerly interest include: What should the law do about teen sex?; Term limits for judges; Search and seizure in a digital world; Has campaign finance reform failed?; Should the Ninth Circuit be divided?; Are law reviews really rubbish?)

Legal status of foreign language speakers

A recent and provocative Language Log post is titled "Minorities as legal minors?" The first minority considered is the soon-to-be-majority, Hispanics. (The link is to the Wikipedia list of all cities with a majority Hispanic population, based on the 2000 census. This does not include Los Angeles , which has a plurality of Hispanics). (Aside: Can everyone say Hello, emerging Hispanic majority? How about, 'assimilation'? If anyone reading this is a fan of English-only, I beg you to reconsider. Your grandchildren may have to fight for their right to avoid the state-imposed requirement of Spanish-only in public schools, so that they can have instead the chance to learn the world's most widely used, and therefore most important language: Mandarin Chinese.)

This is a very legally-oriented LL post, in my opinion, up there with the discussion of trademarks that  I highlighted when discussing the controversy regarding Leo Stoller's attempt to control the mark "stealthistitle." (The link is to Google search result for "Leo Stoller." He's a trademark holder for the word "stealth" in certain contexts.)

Translation

Some of the above topics dealt with "people who speak." That's not the only issue that's of interest when a foreign language (meaning, one besides English) is involved. What happens when the information has to be translated? "Translation and Freedom" is an old post by Language Log host Mark Liberman, in which he discusses Eric Bakovic's LL post on the issues involved when doctor's instructions are translated. A legally oriented post, to be sure, since it mentions Executive Order 13166 and a lawsuit to overturn it.  

I welcome further discussion of these issue here in comments or over at my blawg, or by e-mail.

About the Author  Eh Nonymous is an anonymous lawyer blogging from Philadelphia. His blawg is the linguistically inclined Unused & Probably Unusable.

Comments

[George Lenard]

Back in February '04, I wrote a lengthy blog post entitled "English-only policies and the melting pot (not)"

http://employmentblawg.blogspot.com/2004/02/english-only-policies-and-melting-pot.html

It contains extensive quotes from several articles, and a number of links (that may or may not still work, given the passage of time).

It contains a rather personal conclusion, in italics at the end, from my perspective as a child of immigrants who did not learn my parents' native language. Also a suggested policy approach for employers (not legal advice, just an opinion).

[Eh Nonymous]

I highly recommend George's lengthy, interesting, and well-researched article.

I'm sure there are reasoned arguments to be had over some of George's sociological and historical opinions, just as I'm sure many of mine are, uh, not well-founded. His concluding point, however, about what employers should do:

-- use the carrot, not the stick --

remains excellent advice no matter what the law is. Employers buy needless trouble when they attempt to enforce legal rights of dubious value. Instead, a prudent employer should probably ask the employee - bargain with them - to attempt to gain the contractual right to do what might have been legal (but difficult) to do without consent. If, that is, the employer needs that outcome at all. Some rights, legally entitled or otherwise, can and should be waived by that same prudent employer.

Since language, far more than take-home pay or fringe benefits, goes directly to the core identity of an individual, employers would be well advised to avoid needless infringement of "personhood" - whether or not it would constitute a violation of applicable law.

[Jimbino]

The author writes, "...you can't force someone to conduct their life in English." I don't dispute the sentiment, but the grammar is awful. Anyone interested in communicating nowadays needs to appreciate that his (not "their") writing will be subjected to machine translation. Speakers of some languages, like German, Portuguese and French -- not attune to Amerikan "political correctness" -- might well not get the meaning at all. Even native English speakers would be confused by a similar politically correct sentence that read, "You can't force a person with children to buy their least favorite liquor."

Let's reject political correctness in favor of communication!

[Helen]

I faced the fact that employers are often afraud that employees speak bad of them and that's why prohibit foreidn language in doors.