By Kathleen Kapusta, J.D. Finding it “difficult to imagine a defendant winning summary judgment when it has conceded that its stated reason for firing a number of employees was not a factor in the employees’ job performance, particularly when the stated reason (language) has a close relationship with a protected class,” a federal court in Wisconsin found an employer failed to establish as a matter of law that its policy of favoring English-speakers was a legitimate, nondiscriminatory reason for terminating Hmong and Hispanic employees. Accordingly, the court denied summary judgment against the EEOC’s race and/or national origin discrimination claims (EEOC v. Wisconsin Plastics, Inc., May 5, 2016, Griesbach, W.). Couldn’t speak English. Over a three month period, the employer laid off 38 of its 114 production operators; 28 were of Asian descent and three were Hispanic. Although it conceded that the ability to speak or read English was not required to perform the job, it admitted that the employees’ inability to speak English was the “but for” cause of their termination. The EEOC brought suit on behalf of the employees, who also intervened in the suit. The intervenors argued that the employer’s preference for English-speaking employees was so inherently suspicious that it could not constitute a legitimate, nondiscriminatory reason. The court, however, pointed out that while in some cases that might be true, it is essentially a fact question that will turn on the particular circumstances of the case. For example, in some cases an employer might reasonably conclude that an employee’s inability to communicate could restrict his ability to progress in the company or that employees who can communicate with everyone else will have a higher morale and become more productive. That does not mean, however, that a court can conclude as a matter of law that the ability to speak English is a legitimate, nondiscriminatory reason, explained the court, observing that the employer here did not provide a substantial justification for that reason. Thus, it failed to establish as a matter of law that its policy of favoring English speakers was a legitimate nondiscriminatory reason for the layoff decisions. Stalking horse. And while the employer argued that there was no evidence of pretext because the inability to speak English is not the legal analog to race or national origin, the court pointed out that although language ability per se is not the legal equivalent to a protected class, “it can sometimes serve as a proxy, or stalking horse, for discrimination against a protected class.” If speaking English is irrelevant to job performance, as asserted here, the court observed that a juror might reasonably question why the employer seized on that factor as the reason given for the employees’ termination. Reconstituting itself? The plaintiffs also pointed out that during the same time period as the layoffs, the employer hired 88 people, of whom 62 were Caucasian. The net effect of this, observed the court, “was to flip the ethnic profile of the workplace so that Asians, who had been a significant majority of the assembly workforce, now constituted only a plurality, at 49%, while Caucasian representation rose from 14% to 43%.” Faced with this evidence, a reasonable jury might conclude the company was reconstituting itself by race or national origin—particularly if it heard that language ability did not affect job performance. Shifting reasons. In addition, the company provided different reasons for the terminations. While it first suggested employee performance was the problem because they had flunked their performance improvement plans, the employees did not even know these improvement plans existed, and some received the plans on their last day of work. Later, it told the EEOC that the firings were done for economic reasons, but then hired substantial numbers of new assemblers during the same period. Finally, although many company witnesses denied that language was a factor in the terminations, during litigation, the employer seized on language as the reason for all of the terminations. And while the employer relied on the fact that there was no evidence suggesting a discriminatory reason for the firings, such as a memo, document, or testimony, the court pointed out that “seldom is there a ‘gotcha moment’ (at least in cases that get this far) where an employer admits that race (for example) was the true reason for the termination.” There was, however, more than enough evidence for the plaintiffs to defeat summary judgment. Direct evidence. Turning to the intervenors’ contention that there was direct evidence of discrimination, the court noted that they cited a written policy dating back several years, under which the company specifically determined to make English fluency a priority. If anything, said the court, much of the cited evidence strengthened the company’s case that language, and not race or national origin, was the true reason. The fact that the company’s explanation changed over time merely undermined its stated reason for the terminations and did not in itself suggest that the true reason was illegal discrimination. “In short,” said the court, “the Intervening Plaintiffs’ arguments are all directed at showing that the Defendant is lying (pretext), not that the true reason for the termination was discrimination. Because ‘circumstantial evidence . . . must point directly to a discriminatory reason for the employer's action,’ I would have granted the Defendant’s motion had the Plaintiffs limited themselves to a case based on direct evidence.”
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