According to a report in 2015, there are a record 64.7 million residents in the United States who speak a foreign language at home. That number represents an increase of 5.2 million since 2010. Consequently, bilingualism (the ability to speak two languages) is a very common skill. However, the question becomes whether an employer can require bilingualism in the workplace.
Davis v. Infinity Insurance Co.
In this case out of Alabama, an employee was terminated because she did not meet her employer’s newly imposed requirement that all employees be fluent in Spanish. She was fired along with 17 other employees, 11 of whom were African-American. It was alleged that five white employees who had less seniority or had disciplinary issues were retained despite their lack of bilingualism.
Disparate impact claims
The plaintiff in this case brought a disparate impact claim, alleging that her 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 intended for that impact to occur. However, the district court did not find sufficient evidence that a disparity existed. Particularly, the court decided that the plaintiff’s argument that “language is inherently based on national origin, ancestry, lineage, ethnicity and/or race” improperly stretched case law on national origin to support claims regarding race, ethnicity, and ancestry.
Insufficient evidence of disparate impact
The district court also determined that there were numerous assumptions and unsupported conclusions, such as the assumption that “the majority of those who can speak Spanish also speak English and will, therefore, be preferred under the bilingualism policy.” Despite the employee’s presentation of facts regarding who was fired, there were no non-conclusory allegations regarding the composition of the employees who were hired or retained from which the court could make a comparison. Essentially, the court could not assume and was not able to conclude, that disparate outcomes would necessarily flow from the bilingualism policy that was being imposed.
Disparate treatment claims
The court determined that a disparate treatment claim could not survive, even if the plaintiff had clearly alleged one. The argument that the plaintiff raised, that the bilingualism policy was not a business decision and there were better alternatives to the policy, was insufficient to establish pretext. This was especially true since there was no reference to direct evidence and insufficient circumstantial evidence.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.