EEOC Takes on the Salvation Army over English Policy - Alleges Discrimination - WSFA.com Montgomery Alabama news.

EEOC Takes on the Salvation Army over English Policy - Alleges Discrimination

April 30, 2007 -- In a complaint filed at the end of March in the United States District Court District of Massachusetts, the Equal Employment Opportunity Commission says two Hispanic workers, one's national original is the Dominican Republic, and the other's is El Salvador) were subjected to discrimination by the Salvation Army "on the basis of their national origin (Hispanic) by requiring them to comply with Defendant's English-only rule, and terminating them because they failed to comply with its proficiency requirement, spoke Spanish in the workplace and were not fluent in speaking or understanding English."

The complaint says Dolores Escorbor and Maria Del Carmen Perdomo "both began work at Defendant's thrift store in Framingham, Massachusetts in 1999. Spanish is their native language and they both speak very little English."

The EEOC complaint alleges the following:

"They both worked commendably and without incident for at least five years, relying on Spanish as their principal means of workplace communication in their jobs as clothes sorters.  In 2004, Defendant decided to enforce a written English language policy at the Framingham store, which it had not previously enforced while Escorbor and Perdomo had been employed.  It delayed enforcement of the policy for at least a year. 

During this year, employees who could not speak English adequately were told they needed to learn English, even though learning English was not a part of the written English language policy and was unrelated to the jobs they had been performing since 1999.  On or about December 21, 2005, Defendant terminated both Escorbor and Perdomo for failing to learn English and for speaking Spanish. 

The effect of the practices complained of above has been to deprive Escorbor and Perdomo of equal employment opportunities and otherwise adversely affect their status as employees because of their national origin, and to inflict emotional pain, suffering, loss of enjoyment of life, embarrassment, humiliation, and inconvenience upon Escorbor and Perdomo. 

The unlawful employment practices complained of above were intentional.  The unlawful employment practices complained of above were done with malice or with reckless indifference to Escorbor's and Perdomo's federally protected rights."

In a statement Major Karla Clark, the Salvation Army's Eastern Territory Community Relations and Development Secretary said the following:

"The Salvation Army has longstanding national and international policies that denounce any form of discrimination based on ethnic origin, among other factors, whether in the provision of our religious and charitable services or in employment. 

Indeed, our mission is "to preach the gospel of Jesus Christ and meet human needs in his name without discrimination."   We believe that there is no legal basis for the complaint filed by the EEOC and we vigorously dispute any suggestion that we have violated the law with respect to these plaintiffs. 

We are confident that the legal process will confirm that our employment policies serve only to protect the welfare and safety of our employees and those whom we serve in fulfillment of our mission."

In Montgomery, Heather Holcomb, Director of Public Affairs for the local Salvation Army corps, says she has heard of the lawsuit and says, "Employee job descriptions do state they must read and write English, but I know we've never had a problem with it here locally."

The EEOC is asking the court to

  • "Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of national origin.
  • Order Defendant to institute and carry out policies, practices, and programs which provide equal opportunities for Hispanic employees and which eradicate the effects of its unlawful employment practices.
  • Order Defendant to make Escorbor and Perdomo whole by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, but not limited to front pay and reinstatement.
  • Order Defendant to make Escorbar and Perdomo whole by providing compensation for past and future nonpecuniary losses resulting from unlawful employment practices described above, including but not limited to job search expenses and contributions to pension and health insurance funds, in amounts to be determined at trial.
  • Order Defendant to make Escorbor and Perdomo whole by providing compensation for past and future nonpecuniary losses resulting from unlawful employment practices described above, including but not limited to emotional pain, suffering, loss of enjoyment of life, humiliation, and inconvenience to be determined at trial.
  • Order Defendant to pay Escobar and Perdomo punitive damages for its malicious and reckless conduct described above, in amounts to be determined at trial."

The Salvation Army has until June 1st to respond.  The EEOC is asking for a jury trial.

There is a 2003 case, Cosme v. The Salvation Army, 284 F. Supp.2d 229 (D.Mass) in which a judge upheld the Salvation Army English Language policy.  However, there are differences in the cases but as to the English Language issue the judge had the following to say:

"The Salvation Army had several rules relating to employee conduct and protocol, which included an English Language Policy, time sheets, and punctuality.  The Employee's Manual provides a list of behavior constituting unsatisfactory conduct, including provision forty-two, which proscribes

‘[w]illful violation of the English Language Policy for Adult Rehabilitation Centers.  This policy states that at all times while on the center premises, other than during break and meal periods and before and after work, every employee shall utilize English, to the best of the employee's ability, when speaking to any other employee, beneficiary, customer or to a supervisor.  This rule shall not apply to conversations between employees held in nonworking areas, such as lunch room, break room, and restrooms.  This rule shall also not apply where an employee at the center is engaged in a conversation with a thrift store customer in a language other than English, which both the employee and the customer understand.  This rule shall also not apply when a supervisor requests that an employee interpret a conversation for the supervisor, another employee, or a customer." Guzicki Aff., Ex. HH [Docket No. 18] at 11."

Just as in the present case the court says in the 2003 order  that it appears the Salvation Army supervisor "did not strictly enforce the various rules and policies at the store, including the English Language Policy.  At some point in 1999, however, in response to her fear that employees were taking advantage of her, Guerre''s supervisor suggested she become more strict in enforcing the rules."

Chief District Judge William G. Young said also:

"... The Court, however, is not persuaded by Cosme's argument because the Salvation Army's English Language Policy provides a clear and valid basis for such requests.  Therefore, the question is whether Guerre displayed discriminatory animus against Cosme indirectly.

"The presumption of discrimination may be rebutted in the second stage of the analysis if the employer can articulate "a legitimate, non-discriminatory reason for its action" backed by "credible evidence [showing] that the reason or reasons advanced were the real reasons." Wheelock College, 371 Mass. At 136, 138. 

Finally, if an employer presents a non-discriminatory reason for its decision with an adequate evidentiary backing, the plaintiff must persuade the trier of fact by a preponderance of the evidence that discriminatory animus was the "determinative cause" for the employer's decision.  Lipchitz, 434 Mass. At 504.  A fact-finder's decision in this third stage may be based, either in whole or in part, on a determination that a legitimate reason for the employer's decision advanced in stage two was actually a pretext.

"While there may be some support for Cosme's argument that termination for speaking Spanish is impermissible, Cosme has not carried her burden of proving pretext.  As a preliminary matter, an English Language Policy does not, in and of itself,  constitute discrimination or disparate treatment for bilingual employees....In addition Cosme argues that the English Language Policy adopted by the Salvation Army violates Equal Employment Opportunity ("EEOC") Regulations, which lends further support to her discrimination claim...

In relevant part, the EEOC regulations distinguish between blanket rules requiring that English be spoken at all times, which the regulations prohibit, and more limited rules requiring that English be spoke at particular times...With respect to more limited rules, the regulations provide that "[a]n employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity...While the EEOC regulations may offer guidance to the Court, the Court is not bound by them...

Moreover, even if this Court were to follow the EEOC regulations in question, it is clear that, while the EEOC does not favor English-only policies, the mere existence of one does not necessarily violate the regulations...

But Judge Young in the 2003 sided with the Salvation Army, he hardly gave the employee handbook, as it stood back then, a ringing endorsement.  I have been unable to confirm whether or not the handbook has been updated.

"Similarly in this case, the Salvation Army's employee handbook - received by all new employees, thereby providing proper notice - describes the legitimate business reasons for its policy" "to promote workplace harmony by ensuring that employees are able to communicate with customers, coworkers and supervisors: to help managers monitor employees, and to improve productivity and efficiency.... Although this handbook was available only in English and the Salvation Army failed to produce an affidavit or testimony to verify the stated purpose, the Court finds that the Salvation Army has - albeit minimally - complied with EEOC regulations, even if the regulations were binding on this Court...

Reported by:  Helen Hammons

 

 

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