Employment Law Daily Imposing new bilingualism requirement could be proxy for discrimination
Thursday, September 1, 2016

Imposing new bilingualism requirement could be proxy for discrimination

By Brandi O. Brown, J.D. An employee who was terminated when her employer imposed a new requirement that all employees be able to speak Spanish fluently was told to refile her motion to amend her complaint under Title VII (among other claims) after a federal district court in Alabama spent some time explaining the deficiencies of both her motion and her complaint. As "sussed out" by the court, the thrust of the employee's disparate impact claim was that the employer's facially neutral language requirement was being used to have an intentionally discriminatory effect on non-Hispanic employees. Such a claim could be viable under Title VII and Section 1981 if properly pleaded and proven, the court explained, denying the employer’s motion to dismiss with leave to refile (Davis v. Infinity Insurance Co., August 29, 2016, England, J., III). The plaintiff was discharged along with 17 other employees (11 of whom were African-American) when her employer implemented a new Spanish/English bilingualism policy. Although she was qualified for her job, she was terminated because she did not speak Spanish fluently. (Five white employees who were less senior and/or who had disciplinary records were retained.) The employee was told that in order to receive the benefits to which she was entitled under the company’s profit-sharing plan, she would have to sign a severance agreement and give up her right to pursue claims against the employer. After she filed an EEOC charge, she was denied payment of the benefits. The employer moved to dismiss her amended complaint, which alleged claims under Title VII, Section 1981, and ERISA. Along with her response, the employee attempted to file a second amended complaint. That complaint was stricken as improperly filed and the employee moved for leave to amend. The employer argued futility and that her pleading remained a shotgun pleading. In order "to avoid unnecessarily repetitive briefing," the court declined to grant the motion to dismiss and addressed the arguments raised by the parties in their briefs so far. Could be viable. Although the court described the employee’s second amended complaint as "an extended morass of extensively repeated legal conclusions interspersed with page-long paragraphs of factual allegations, culminating in a confusingly organized series of counts," it "sussed out" some potentially viable claims. The crux of most of the employee's claims was that the employer’s bilingualism requirement had "a disparate impact on current and prospective employees who are not of national origins and ethnicities that are traditionally Spanish-speaking," and that the employer in fact intended that impact. If properly pled and proven, the court found no reason why that theory could not support a viable Title VII claim. Likewise, the employee's contention that the evidence showed that the employer intended this requirement to cause a disparate impact, if "properly pled and proven," could support a viable claim under Title VII and Section 1981. Assumptions and inaccuracies. As construed by the court, the employee's current complaint stated clams for Title VII disparate impact based on the bilingualism requirement and the disparity it created between Hispanics and non-Hispanic individuals; disparate treatment in terminations (under Title VII and Section 1981) based on that disparate impact; a potential class claim based on those adverse effects; and two ERISA claims. With regards to disparate impact, the court concluded that at the end of the day, the employee had so far failed to actually allege the existence of a disparity. Instead, she relied on "speculative assumptions and summaries of old statistics" that, as drafted, "assume too much." She cited Sandoval v. Hagan, an earlier Alabama case, for the proposition that "language is inherently based on national origin, ancestry, lineage, ethnicity and/or race[,]" in doing so, she stretched a national origin case to support conclusions regarding race, ethnicity, and ancestry as well "as if they are all the same thing." Moreover, she inaccurately described the holding of that decision. Other assumptions and unsupported conclusions also underlay the employee's complaint, including an assumption that "the majority of those who can speak Spanish also speak English and will, therefore, be preferred under the bilingualism policy." Also, although the employee did include non-conclusory factual allegations regarding who was fired, there were no similarly non-conclusory allegations regarding the composition of those employees who were retained or hired. And the court could not simply assume that disparate outcomes would necessarily flow from the policy. Disparate treatment. It was "not entirely clear from" the employee's proposed amended complaint whether she was bringing an individual disparate treatment claim, a pattern or practice class claim, or both, the court said; in any event, she had not done so as the complaint was currently drafted. While she asserted that the policy in question was not a business necessity and that there were better alternatives, that assertion was insufficient, alone, to establish pretext. The employee did not actually refer to any direct evidence in her complaint and the circumstantial allegations currently do not raise an inference of discrimination, the court explained. She did not allege any facts or non-conclusory allegations establishing that she was replaced by a Hispanic employee. The court also concluded that, as currently drafted, the amended complaint did not allege a non-futile pattern or practice disparate treatment claim. Other claims. However, the employee sufficiently alleged retaliation under Title VII and Section 1981. She alleged that she was vested in the profit-sharing plan and that her benefits were denied after she refused to sign the severance agreement and filed an EEOC charge. Also, the defendants failed to establish that the employee's ERISA claims were futile, or that she could not pursue a Section 1981 claim against the individually named defendant. Shotgun pleading. The court did take to heart, however, the defendants' contention that the employee's complaint was a shotgun pleading. She failed to "present her claims discretely and succinctly," and the court instructed that if she "takes the opportunity to again seek leave to amend," she should correct the "shotgun-pleading-like issues" and proffer an amended complaint that complies with the rules.

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