La Cantera Resort and Spa to Pay Over $2.5M to Settle EEOC National Origin Discrimination Suit


Blog# 11042019

Heidi Macomber reads 11/4/19 EEOC bulletin, La Cantera Resort and Spa to Pay Over $2.5M to Settle EEOC National Origin Discrimination Suit

Resort implemented strict rules forbidding Spanish and retaliated against workers when they complained, Federal Agency Says

SAN ANTONIO, Texas – The former operators of the La Cantera Resort and Spa have agreed to pay $2,625,000 to settle a national origin discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC’s lawsuit alleged that the operators of the La Cantera Resort and Spa in San Antonio violated Title VII of the Civil Rights Act of 1964 by subjecting Hispanic banquet staff to a hostile work environment based on their national origin and by retaliating against workers who opposed a restrictive language policy.

According to the EEOC’s lawsuit, after assuming control of the resort, La Cantera’s new managers sub­jected at least 25 Hispanic banquet employees to verbal abuse and mistreatment because of their national origin. In describing the mistreatment, the EEOC’s complaint alleged that the managers had implemented and harshly enforced a policy forbidding banquet staff from speaking Spanish at anytime and anywhere in the resort. One of the managers allegedly referred to Spanish as “a foul language” and used derogatory terms when referring to Hispanics. The lawsuit alleged that when banquet employees raised concerns about these practices, the employer retaliated against some by demoting and firing them and replacing them with non-Hispanic employees. The EEOC claimed that as a direct result of the discrimination and retaliation, the formerly all-Hispanic senior management group in the banquet department was reduced to having no Hispanic managers.

Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on national origin, including harassment and retaliation, forbids such alleged conduct. The EEOC filed suit in U.S. District Court for the Western District of Texas, San Antonio Division (EEOC v. DH San Antonio Management, LLC. et al., Civil Action No. 5:18-cv-00990) after first attempting to reach a voluntary settlement through its conciliation process.

“An employee working in the U.S. should not have to fear being fired, demoted or subjected to discipline because his or her family tree has roots in another country, said Robert Canino, the regional attorney for the Dallas District Office of the EEOC. “San Antonio, Texas is an environment rich with cross-cultural communication. Beyond the requirements of the law, business patrons might also appreciate a service industry that reflects that diversity.”

The two-year consent decree resolving this case, approved by U.S. District Judge Jason Pulliam, requires La Cantera and its successors to pay monetary damages of $2,625,000; to post a notice of intent to comply with Title VII; and to provide training to La Cantera’s employees informing them of their rights under Title VII of the Civil Rights Act of 1964. The consent decree resolving this case also provides for La Cantera’s revision of policies regarding the use of languages other than English in the workplace.

EEOC Trial Attorney Philip Moss stated, “English-only workplace policies can be discriminatory and foster a hostile environment when implemented with the intent to silence foreign languages in the workplace or manufacture a reason to discipline persons who are not native English speakers.”

EEOC Supervisory Trial Attorney Eduardo Juarez of the EEOC’s San Antonio Field Office said, “We are pleased that in addition to the monetary compensation, La Cantera agreed to provide additional training for its employees and human resources staff on national origin discrimination, harassment, and retaliation. La Cantera has also committed to revise its policies to ensure that their employees are not subject to language discrimination.”

The San Antonio Field Office is part of the EEOC’s Dallas District Office which is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litiga­tion in Texas and parts of New Mexico.

Many of the class members were also represented by private counsel of the Espinoza Law Firm, PLLC of San Antonio, Texas.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

Resources

National Origin Discrimination

EEOC Enforcement Guidance on National Origin Discrimination:

3. EEOC Guidelines on English-only Policies

The EEOC’s long-standing English-only guidelines, issued in 1980, provide that rules requiring employees to speak English in the workplace at all times will be presumed to violate Title VII.[115]

a. Adverse Effect on National Origin Groups

When an employer imposes an English-only rule, either in limited circumstances or at all times, employees with limited or no English skills and bilingual employees whose primary language is not English may be adversely affected because they are prohibited from communicating at work-including for work-related purposes -in their most effective language.[116] An English-only rule may also adversely impact these employees by subjecting them to discipline and termination for speaking their most effective language while imposing no comparable risk for native English-speaking employees.[117] Finally, an English-only rule “is likely in itself to ‘create an atmosphere of inferiority, isolation, and intimidation’ that constitutes a ‘discriminatory working environment.'”[118]

b. Policies That Apply at All Times

A restrictive language policy is applied “at all times” when employees are prohibited from speaking their primary language any time they are on duty or in the workplace, including during lunch, breaks, and other personal time while on the employer’s premises.

Because language-restrictive policies may be applied only to those specific employment situations for which they are needed to promote safe and efficient job performance or business operations, blanket rules requiring employees to speak English (or another language) at all times are presumptively unlawful.[119]

c. Policies That Apply in Limited Circumstances

The lawfulness of a limited language-restrictive policy- one that does not apply at all times or to all jobs, workplace situations, or locations- depends on whether the evidence shows that the policy is job related and consistent with business necessity.[120] An employer may satisfy this standard by providing detailed, fact-specific, and credible evidence demonstrating that the business purpose of requiring employees to speak a common language is sufficiently necessary to safe and efficient job performance or safe and efficient business operations to override its adverse impact, and that it is narrowly tailored to minimize any discriminatory impact based on national origin.[121]

d. Job Related and Consistent with Business Necessity

Because of the adverse effects of a restrictive language policy on employees with limited or no English skills, and on bilingual employees whose primary language is not English, such a policy is unlawful unless the employer establishes that the policy is job related and consistent with business necessity. It is not sufficient that the policy merely promote business convenience.[122]

To meet the burden of establishing business necessity, the employer must present detailed, fact-specific, and credible evidence[123] showing that the language-restrictive policy is “necessary to safe and efficient job performance”[124] or safe and efficient business operations.[125] This burden cannot be met with conclusory statements or bare assertions about the business need for a language-restrictive policy.[126] It is necessary to analyze the specific circumstances that are presented in each situation. The following general principles provide guidance when evaluating whether a language-restrictive policy is job related for the position in question and consistent with business necessity.

(1) Restrictive Language Policy Effectively Serves Business Needs

Part of establishing business necessity is demonstrating that the language-restrictive policy actually serves the identified business need.[127] The effectiveness of a language-restrictive policy also may hinge on which language is identified as the common language of those performing the work. Sales representatives with monolingual clientele may generate the most sales by speaking the language in which the customer is proficient. Similarly, cooperative work assignments may be completed efficiently when employees use the language in which they are most proficient. If safety considerations constitute the demonstrated business need, employers may assess whether their employees with limited English skills are more likely to understand and relay safety instructions or warnings efficiently and effectively in English or in their shared language.[128]

(2) Restrictive Language Policy is Narrowly Tailored

A language-restrictive policy is narrowly tailored when it applies only to those workers, work areas, circumstances, times, and job duties in which it is necessary to effectively promote safe and efficient business operations. This minimizes the adverse impact.

Some employers contend they adopt language-restrictive policies in order to improve interpersonal relationships between employees.[130] If coworkers or customers are concerned about exposure to languages they do not understand, or about gossip in these languages, one approach is to address these concerns on an individualized basis without resorting to language-restrictive policies.[131] A language-restrictive policy that has a disparate impact on a particular group cannot be justified if an employer can effectively promote safe and efficient business operations through a policy that does not disproportionately harm protected national origin groups.

4. Notice and Enforcement of Restrictive Language Policy

Employers must provide adequate notice of language-restrictive policies.[132] “Adequate notice” means effectively communicating to employees under what circumstances they will be required to speak a specific or common language and what will happen if they violate the rule.[133] Notice can be provided by any reasonable means under the circumstances, such as explaining the rule at a meeting, providing personal notice, sending e-mail, or posting the rule.[134] In some circumstances, it may be necessary to provide notice in multiple languages. A grace period before the effective date of the policy generally will be important. Because adequate notice is essential to ensure employee compliance with the policy, “[i]f an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the Commission will consider the employer’s application of the rule as evidence of discrimination on the basis of national origin.”[135]

Managers often benefit from guidance on how to enforce the policy. Employers are strongly discouraged from “draconian”[136] enforcement of language-restrictive policies. By limiting disciplinary measures to willful violations and not penalizing workers for inadvertent violations linked to their protected status,[137] employers will more likely be able to establish business necessity.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s