{"id":18627,"date":"2012-09-30T17:26:59","date_gmt":"2012-09-30T22:26:59","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18627"},"modified":"2012-09-30T17:26:59","modified_gmt":"2012-09-30T22:26:59","slug":"lep","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/09\/lep\/","title":{"rendered":"LEP"},"content":{"rendered":"

I recently had the pleasure of doing some in-depth research regarding Title VI and Title VII discrimination claims under the Civil Rights Act of 1964 (CRA), paying particular attention to the phrase \u201cnational origin.\u201d Title VI of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000d (2000)<\/a>; Title VII of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000e-2 (2000)<\/a>. Faced with broad yet profound research inquiries, I spent hours poring over material, and began to note a rather interesting strand of debates that involved a single question: does the CRA\u2019s prohibition against national origin discrimination also prohibit language discrimination?<\/em><\/p>\n

Not a novel question, and yet it is a reflection of today\u2019s growing social and political concerns. Thousands of legal professionals have wrestled with the implications behind allowing an individual\u2019s native language to provide the basis for legal action in situations of discrimination. We continue to presumably draw on the following logical inference \u2014 discrimination against my language, in essence, discriminates against my culture, my national heritage, which ultimately amounts to an affront to my civil rights.<\/p>\n

Setting the legal question aside, I became heavily acquainted with this term: LEP<\/strong>, as in Limited English Proficiency<\/em><\/a>. \u00a0<\/p>\n

Within the United States\u2019 ever-changing demographics \u2014 particularly from immigration \u2014 there is a population of individuals who are grappling with issues of communication and English-language learning, running into language barriers. Our country wrestles with growing linguistic diversity, reacting from all ends of the ideological spectrum. And now, it is the slow-moving (for better or worse) machinery of the law that is reacting. The law attempts to reconcile the \u201ctightly-tethered\u201d relationship between language and national origin, and while immigration and other policy debates rage on, lawyers do battle in courtrooms, shaping policy in other ways.<\/p>\n

It was twelve years ago that President Clinton signed Executive Order 13,166, requiring federally-conducted and federally-assisted programs \u201cto ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of [T]itle VI of the Civil Rights Act of 1964, as amended, and its implementing regulations\u201d Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000)<\/a>. Yet even today, we truly do not understand how this Order and other social phenomena have produced the phrase \u201clanguage minority\u201d \u2014 take what implications you will from such a phrase.<\/p>\n

Again, allow me to reassert the legal question: \u00a0Does the CRA\u2019s prohibition against national origin discrimination also prohibit language discrimination?<\/em> In a Harvard Latino Law Review<\/em> article, Attorney Carrie Lynn Flores answered this very question alongside an additional question: Are Limited English Proficiency (LEP) individuals entitled to receive special accommodations?<\/em> See<\/em> Carrie Lynn Flores, Translation Services Not Required: The Civil Rights Act of 1964 Does Not Require Special Accommodations for Limited English Proficiency Individuals<\/em>, 14 Harv. Latino L. Rev. 193, 194-95 (2011). I found her article to be most enlightening, as she answered each question with a concise and resounding \u201cno.\u201d<\/p>\n

Ms. Flores approached the broader implications of President Clinton\u2019s Executive Order, finding the Order to have blurred an important line between language and national origin that the courts have recognized for quite some time. Ultimately, Flores exposes the limitations on the CRA\u2019s scope. In essence, Ms. Flores argues (1) that the CRA was intended to bar discrimination against minorities and (2) that the CRA\u2019s scope has generally been interpreted in a narrow way, due to a fear of providing protections that Congress did not contemplate. 14 Harv. Latino L. Rev. at 197-198, 208-210.<\/p>\n

Interpretation of the CRA being the principal concern, Flores points to the crux of the current debate: \u201cis the Act grounded in ensuring equality, or conversely, in providing special accommodations to minorities?\u201d Id<\/em>. at 198. Flores specifically turns her attention to an entity\u2019s obligations in providing special accommodations to LEP individuals by identifying the Supreme Court\u2019s relative silence and the array of holdings from the lower courts that fall on both sides of the debate. Id<\/em>. at 198-199.<\/p>\n

Flores cites decisions in the Seventh and Ninth circuits which did not find a requirement to provide special accommodations to LEP persons. See Nazarova v. INS<\/em>, 171 F.3d 478, 483 (7th Cir. 1999) (Seventh Circuit found that due process does not require Immigration and Naturalization Services to provide individualized notice of deportation in the preferred language of the deportee); Carmona v. Sheffield<\/em>, 475 F.2d 738 (9th Cir. 1973) (rational basis existed for the State of California in providing unemployment benefit information, including benefit termination notices, only in English; thus, the court upheld the practice). These decisions approached the language versus national origin issue, but narrowed their focus to prudential concerns in providing special accommodations.<\/p>\n

Further, Flores cites ProEnglish v. Bush<\/em>, an unpublished U.S. District Court decision that found national origin and language not to be the same thing. See<\/em> No. 1:02CV00356, 2002 WL 34362594 (E.D. Va. May 31, 2002), aff\u2019d<\/em>, 70 Fed. Appx. 84 (4th Cir. 2003). The ProEnglish <\/em>court found the U.S. Department of Justice\u2019s policy guidance for federally conducted and assisted programs as an unprecedented expansion of settled law because policy characterized English requirements as national origin discrimination under Title VI. <\/em>Overall, Flores suggests that ProEnglish <\/em>supports the position that language and LEP status are not protected under the CRA. 14 Harv. Latino L. Rev. at 201-02.<\/p>\n

In contrast, Flores also highlighted cases which suggest that an entity may need to provide special accommodations to LEP individuals. In citing to EEOC v. Synchro-Start Products, Inc<\/em>., 29 F. Supp. 2d 911, 915 (N.D. Ill. 1999), involving a challenge to English-only work rules, the court found that such rules could violate Title VII and denied the defendant\u2019s motion to dismiss the claim. Similarly, in EEOC v. Premier Operator Services, Inc.<\/em>, 113 F. Supp. 2d 1066 (N.D. Tex. 2000), another District Court case, the court found that an English-only policy that lacked \u201cbusiness necessity\u201d was discriminatory against employees\u2019 national origin, thus violating Title VII\u2019s prohibition on national origin discrimination. 14 Harv. Latino L. Rev. at 203-04.<\/p>\n

Flores particularly notes these decisions\u2019 equation of language with national origin, and each court\u2019s suggestion that special treatment should be provided to LEP individuals \u2014 allowing an employee to speak their native language while at work. Id<\/em>. at 204-05.<\/p>\n

Finally, using a textual and historical analysis, Flores reasserts her central arguments: (1) that the plain language of CRA does not include a prohibition on language discrimination; and (2) that the CRA was meant to eliminate discrimination against minorities who fall within the enumerated classes as opposed \u201cto providing special accommodations to them at the expense of those not protected by the Act.\u201d Id<\/em>.<\/p>\n

Moreover, Flores points to the Supreme Court’s definition of national origin in Espinoza v. Farah Manufacturing Co.<\/em>, which states that \u201c[t]he term \u2018national origin\u2019 on its face refers to the country where a person was born, or more broadly, the country from which his ancestors came.\u201d 414 U.S. 86, 88 (1973). Given the Court\u2019s 1973 definition, Flores notes Congress\u2019 amendment to the CRA in 1991, with Congress\u2019 failure to mention the Court\u2019s definition as representation of acquiescence toward the Court\u2019s interpretation. Drawing from such analysis, Flores concludes that Congress did not intend for the CRA to require special accommodations for LEP individuals, and more specifically that national origin was not meant to encompass language.<\/p>\n

So I ask again, in discrimination claims, may language be used as a proxy for national origin? Although I enjoyed Ms. Flores\u2019 article, I am not sure I can entirely agree with her. It seems this matter has created a circuit split. See Kikumura v. Turner<\/em>, 28 F.3d 592, 599 (7th Cir. 1994) (\u201cWhether classifications on the basis of language are to be treated as classifications on the basis of national origin is an unsettled question. There are exceedingly few Supreme Court opinions addressing the rights of language minorities . . .\u201d); Yniguez v. Arizonans for Official English<\/em>, 69 F.3d 920, 947\u201348 (9th Cir.1995)(\u201cSince language is a close and meaningful proxy for national origin, restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment\u201d); Sandoval v. Hagan<\/em>, 197 F.3d 484, 509 n. 26 (11th Cir.1999) (while the Supreme Court has never held that language may serve as proxy for national origin, it \u201chas observed the close nexus between language and national origin\u201d). And still, most courts are very hesitant in even touching language and national origin with a proverbial \u201cten foot pole.\u201d See Novosel v. Wrenn<\/em>, 10-CV-165-PB, 2010 WL 5157414 (D.N.H. Nov. 18, 2010).<\/p>\n

Linguistic diversity has continued to become a reality in our nation. Regardless of personal ideology or political preference, there is a real danger that \u201crestrictions on the use of languages\u201d or policies along those lines may mask discrimination against \u201cspecific national origins groups or, more generally, conceal nativist sentiment.\u201d Yniguez<\/em>, 69 F.3d at 947-58. I believe the original question \u2014\u00a0does the CRA\u2019s prohibition against national origin discrimination also prohibit language discrimination?\u00a0<\/em>\u2014 is a failure to conceptually reconcile the law\u2019s meaning across branches. And while Presidents sign executive orders, lawmakers hold gridlocking floor debates, and lawyers advocate in front of judges who stay true to the tenets of stare decisis, the face and language of the public continues to change.<\/p>\n","protected":false},"excerpt":{"rendered":"

I recently had the pleasure of doing some in-depth research regarding Title VI and Title VII discrimination claims under the Civil Rights Act of 1964 (CRA), paying particular attention to the phrase \u201cnational origin.\u201d Title VI of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000d (2000); Title VII of the Civil Rights Act […]<\/p>\n","protected":false},"author":143,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[122,57],"tags":[],"class_list":["post-18627","post","type-post","status-publish","format-standard","hentry","category-public","category-race-and-the-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18627","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/143"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=18627"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18627\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=18627"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=18627"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=18627"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}