United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge.
The EEOC brought this action against Wisconsin Plastics, Inc. (“WPI”) alleging discrimination in the workplace based on race and / or national origin after WPI laid off a number of Hmong and Hispanic employees. The individual aggrieved individuals were granted permission to intervene. WPI moved for summary judgment, arguing that neither the EEOC nor the intervening Plaintiffs has any evidence of prohibited discrimination. For the reasons given below, the motion will be denied.
Between October 2012 and January 2013, WPI laid off 38 of its 114 production operators. Of the 114 production operators working for WPI as of September 2012, some 85, or about 75%, were of Asian descent and 6 (5%) were Hispanic. Twenty-eight of the fired employees, or about 74%, were of Asian descent, and 3 of them (8%) were Hispanic.
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides in relevant part:
“It shall be an unlawful employment practice for an employer-
(1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . or national origin.”
42 U.S.C. § 2000e-2(a).
More than forty years ago, the Supreme Court established a framework for assessing discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The EEOC proceeds under what is known as the indirect method, which initially requires the showing of a prima facie case of discrimination. To establish a prima facie case of illegal discrimination, the plaintiff bears the “burden of presenting evidence that raises an inference of discrimination.” Swierk iewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). This means the employee must show that he is a member of a protected class, that he met the employer’s reasonable expectations, that he was fired, and that the employer treated others outside the protected class more favorably. Id. If the employee can establish these factors, the burden shifts to the employer to articulate a legitimate reason for the termination. If the employer comes forward with a legitimate, non-discriminatory reason, then the presumption of discrimination disappears. At that point, “the plaintiff then has ‘the full and fair opportunity to demonstrate, ’ through presentation of his own case and through cross-examination of the defendant's witnesses, ‘that the proffered reason was not the true reason for the employment decision, ’” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).
For purposes of summary judgment, the Defendant has conceded the prima facie factors. It concedes that the employees were members of a protected class (Hispanic or Hmong) and that they were terminated. It also concedes that they were living up to the employer’s expectations. Specifically, WPI concedes that the job of production operator may be adequately performed by people who do not speak or read the English language.
WPI jumps right past the prima facie case to its stated, legitimate reasons for selecting these individuals for termination, which is their inability to speak English, which it concedes was the “but for” cause of their termination. Despite conceding that English was not required to perform the job, WPI viewed the inability to speak English as a negative factor and used that factor to dictate the termination decision.
The intervening Plaintiffs in particular appear to believe that the employer’s preference for English-speaking employees is so inherently suspicious that it cannot constitute a legitimate, non-discriminatory reason. In some cases the lack of English language proficiency might not be a legitimate, non-discriminatory reason for termination, but that is essentially a question of fact that will turn on the particular circumstances of every case. For example, although English proficiency may not be required for performance of the specific job at issue, in some cases an employer might reasonably conclude that the employees’ inability to communicate will restrict their ability to progress into positions of greater authority within the company. All things being equal, an employee who speaks fluent English is more valuable than one who does not because that employee has the potential to provide added value to the corporation in other capacities. Similarly, the employer might conclude that employees who can communicate with everyone else in the company will have a higher morale and become more productive. Thus, although the specific job at issue might not have required English proficiency, an employer’s preference for such a proficiency could be a legitimate consideration.
But that does not mean a court can conclude, as a matter of law, that the ability to speak English is necessarily a legitimate, nondiscriminatory reason. Here, the Defendant has cited English speaking as the reason, but has not provided a substantial justification for that reason-nor is that surprising, given its concession that English was not required to perform the job adequately. Some courts have concluded that “[a] foreign accent that does not interfere with a Title VII claimant's ability to perform duties of the position he has been denied is not a legitimate justification for adverse employment decisions.” Carino v. Univ . of Ok lahoma Bd. of Regents, 750 F.2d 815, 819 (10th Cir. 1984), while others note that the question is a matter of fact. E.E.O.C. v. Premier Operator Servs., Inc., 75 F.Supp.2d 550, 558-59 (N.D. Tex. 1999) (“the evidence in the record does not resolve the genuine issue of material fact of whether Defendants' asserted ‘business’ reasons for establishing the English-only policy are legitimate, nondiscriminatory reasons for terminating the class members.”) Thus, I conclude the Defendant has not established, as a matter of law, that its policy of favoring English-speakers is a legitimate, non-discriminatory reason.
In addition, there are factual issues surrounding the issue of pretext. As is often the case, the question turns on whether the Plaintiff has evidence that, if believed by the factfinder, would mean that WPI’s stated reason for the termination was a pretext, i.e., a lie. On this point, the Defendant’s argument is quite simple. It argues that despite extensive discovery, and despite the Defendant’s concession to all of the Plaintiff’s proposed findings of fact, the Plaintiffs have no evidence that race or national origin played a role in the termination. The only thing the Plaintiffs can show is that it discriminated against the fired employees on the basis that they were not fluent in English, which is not a class protected by federal statute. Because an inability to speak English is not the legal analog to race or national origin, WPI argues that the Plaintiff’s case must be dismissed.
The Plaintiffs argue that matters are more nuanced than that. It is true that language ability per se is not the legal equivalent to a protected class like race or national origin, but language can sometimes serve as a proxy, or stalking horse, for discrimination against a protected class. For example, employees who are foreign-born often lack English fluency, and so there is a strong correlation between people who do not speak English, a non-protected class, and those of a given national origin, which is a protected class. Here, WPI has conceded that the ability to speak English does not materially impact the employees’ ability to do their job as production operators. After all, presumably it knew about their English capabilities when it hired so many non-native speakers to be production operators in ...