No. 04-6062 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________ DANNY V. MALDONADO, RUBEN D. RIOS, DANNY ALCORTA, HENRY O'FLORIAN MARTINEZ, TOMMY R. SANCHEZ, LLOYD LOPEZ, CARLOS RAMIREZ, ADRIAN B. ALONZO, LINDA MUTCHLER, FRANK MALDONADO, and FREDDIE PEREZ, Plaintiffs-Appellants, v. CITY OF ALTUS, OKLAHOMA, a municipal corporation, MICHAEL NETTLES, City Administrator, in his individual and official capacities, and HOLMES WILLIS, Street Commissioner, in his individual and official capacities, Defendants-Appellees. _______________________________________________________________ On Appeal from the United States District Court for the Western District of Oklahoma, CIV-03-336-R Judge David L. Russell ______________________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS- APPELLANTS AND REVERSAL OF THE DISTRICT COURT _______________________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7030 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .. . . . . . . iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . 2 a. Institution of the English-only policy . . . . . . . . . . 2 b. Oral prohibition on speaking Spanish . . . . . . . . . 3 c. Written English-only policy . . . . . . . . . . . . . . . . . 4 2. District Court Decision . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 9 THIS COURT SHOULD REVERSE SUMMARY JUDGMENT ON THE PLAINTIFFS' CLAIM THAT THE CITY'S ENGLISH-ONLY POLICY VIOLATED TITLE VII BECAUSE IT HAS A DISPARATE IMPACT BASED ON NATIONAL ORIGIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Plaintiffs established a prima facie case. . . . . . . . . 10 1. Title VII's prohibition on national origin discrimination includes discrimination based on linguistic characteristics. . . . . . . . . . . . . . . . . 10 TABLE OF CONTENTS (cont'd) PAGE 2. Under the Commission's guidelines, the City's English only policy presumptively had an adverse impact. . . . . . 12 a. As provided in section 1606.7, English-only rules have an adverse impact. . . . . . . . . . . . . . . . . . . . . 12 b. Legislative history supports the validity of section 1606.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 c. Section 1606.7 is consistent with the Commission's long-standing and thoroughly considered position on English-only rules. . . . . . . . . . . . . . . 18 d. The Ninth Circuit's decision in Spun Steak invalidating section 1606.7 is fundamentally flawed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. Summary Judgment was inappropriate because the City did not establish its business necessity defense as a matter of law and because the Plaintiffs raised a factual issue about the availability of alternative employment practices. . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Communication justification . . . . . . . . . . . . . . . 27 2. Morale problem . . . . . . . . . . . . . . . . . . . . . . . . 28 3. Safety concerns . . . . . . . . . . . . . . . . . . . . . . . . 31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 33 CERTIFICATES OF COMPLIANCE & SERVICE TABLE OF AUTHORITIES FEDERAL CASES Allen v. City of Chicago, 351 F.3d 306 (7th Cir. 2003) . . . .-9- Bradley v. Pizzaco of Neb., 7 F.3d 795 (10th Cir. 1993). . . . . . -25-, -27-, -29- Bradley v. Pizzaco of Neb., 939 F.2d 610 (8th Cir. 1991) . . -15- Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . . -22- Bullington v. United Air Lines, 186 F.3d 1301 (10th Cir. 1999), overruled on other grounds by Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . .-9-, -10-, -26- Carino v. Univ. of Okla. Bd. of Regents, 750 F.2d 815 (10th Cir. 1984)-11- EEOC v. Premier Operator, 113 F. Supp. 2d 1066 (N.D. Tex. 2000) -13-, -15-, -17-, -20-, -21-, -29-, -30- EEOC v. Synchro-Start Prods., 29 F. Supp. 2d 911 (N.D. Ill. 1999). . -13-, -20-, -24- Garcia v. Gloor, 618 F.2d 264 (1980) . . . . . . . . . -19-, -20- Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993). . . . passim Garcia v Spun Steak, 13 F.3d 296, 298 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc) . . . . . .-13-, -23- General Elec. v. Gilbert, 429 U.S. 125 (1976). . -18-, -19-, -20- Gerdom v. Continental Airlines, 692 F.2d 602 (9th Cir. 1982) -30- Gonzalez v. Salvation Army, No. 91-3588, 1991 WL 11009376 (M.D. Fla. June 3, 1991), aff'd, 985 F.2d 578 (11th Cir. Feb. 1, 1993) (unpublished table decision) . . . . . . . . . . . . . . . . -21- Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989). . . . . -12-, -24- Long v. First Union Corp. of Va., 894 F. Supp. 933 (E.D. Va. 1995), aff'd, No. 95-1986, 1996 WL 281954 (4th Cir. May 29, 1996)-20- Marquez v. Baker Process, 42 Fed. Appx. 272 (10th Cir. 2002) -13- Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . -24- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) .-9- Reid v. Kraft General Foods, 67 FEP 1367, 1995 WL 262531 (E.D. Pa. Apr. 27, 1995) . . . . . . . . . . . . . . . -22- Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971) . -23- United States v. Rutherford, 442 U.S. 544 (1979) . . . . . . -18- York v. American Tel. & Tel., 95 F.3d 948 (10th Cir. 1996) . -26- FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e .-1- 42 U.S.C. 2000e-2(k)(1)(A) . . . . . . . . . . . .-9-, -17-, 32 42 U.S.C. 2000e-2(k)(1)(A)(i) . . . . . . . . . . .-10- , -25- 42 U.S.C. 2000e-2(k)(1)(A)(ii) . . . . . . . . . . . -10-, -26- FEDERAL REGULATIONS 29 C.F.R. 1604.3(a). . . . . . . . . . . . . . . . . . . . -23- 29 C.F.R. 1604.4(a). . . . . . . . . . . . . . . . . . . . -23- 29 C.F.R. 1606.1 . . . . . . . . . . . . . . . . . . . . . -11- 29 C.F.R. 1606.7 . . . . . . . . . . . . . . . . . . . . passim 29 C.F.R. 1606.7(a). . . . . . . . . . . . . . -11-, -12-, -13- 29 C.F.R. 1606.7(b). . . . . . . . . . . . . . . . . -12-, -24- OTHER AUTHORITIES Commission Decision 71-446 (1970), CCH EEOC Decisions 6173, 2 FEP Cases 1127 . . . . . . . . . . . . . . . . . . -19- 137 Cong. Rec. S15472-01, S15489 (daily ed. Oct. 30, 1991)-17-, -18- Guidelines on Discrimination Because of National Origin, 45 Fed. Reg. 62728 (Sept. 19, 1980) . . . . . . . . . . . . . . . . . . . -19- Guidelines on Discrimination Because of National Origin, 45 Fed. Reg. 85632 (Dec. 29, 1980) . . . . . . . . . . . . . . -14-, -16-, -19- Lisa L. Behm, Comment, Protecting Linguistic Minorities under Title VII: The Need for Judicial Deference to the EEOC Guidelines on Discrimination Because of National Origin, 81 Marq. L. Rev. 569 (1998). . . . . . . . . . . -14-, -22- James Harvey Domengeaux, Comment, Native-Born Acadians and the Equality Idea, 46 La. L. Rev. 1151 (1986). . . . . . . . . . . . -13- Mark Colon, Note, Line Drawing, Code Switching, and Spanish as Second-Hand Smoke: English-only Workplace Rules and Bilingual Employees, 20 Yale L. & Pol'y Rev. 227 (2002) . . . . . . . . . . . . . . . . . -21- EEOC Guidelines on Discrimination Because of National Origin, Origin Discrimination," EEOC Compliance Manual Notice 915.003 (Dec. 3, 2002)-11-, -14-, -16-, -20-, -25-, -32- STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. This case raises two important issues: 1) the validity of the Commission's national origin guidelines, which presume that English-only policies have a disparate impact based on national origin; and 2) the appropriate application of the business necessity defense. Because the district court's ruling on these issues affects other Title VII plaintiffs, and because the result reached by the district court is contrary to Title VII and the Commission's guidelines, the Commission offers its views to the Court. STATEMENT OF THE ISSUES 1. Did the district court err in rejecting the Commission's national origin guidelines, which state that English-only policies presumptively have a disparate impact, and concluding that summary judgment was appropriate because the Plaintiffs failed to establish a prima face case? 2. Did the district court err in concluding that summary judgment was also warranted because the employer had established as a matter of law that its English- only policy was required by business necessity to enhance communication, employee morale, and safety in the workplace, although the employer offered virtually no evidence to meet its burden and admitted alternative employment practices existed? STATEMENT OF THE CASE 1. Statement of Facts Plaintiffs are Hispanic Spanish-speaking employees of the City of Altus who are bilingual. (Aplt.App. at 870 & 882) a. Institution of the English-only policy In the spring of 2002 the City's Street Department was working jointly with another department. Someone from that department complained to Defendant- Appellee Holmes Willis, the Street Commissioner, that Street Department employees were speaking Spanish on the City's radios. (Aplt.App. at 873 & 258 (Depo.17)) Willis informed the City's Human Resources Director, Candy Richardson, of the complaint. (Id.) Richardson told Willis he could direct the employees to use English on the radio. (Aplt.App. at 258 (Depo.18)) Willis also received complaints from the public that Spanish was being used on the radio and received at least one complaint from a non-Spanish speaking employee who felt excluded when co-workers spoke Spanish in front of him. (Aplt.App. at 244 (Depo.15-16), at 246 (Depo.21-22), at 249 (Depo.36)) b. Oral prohibition on speaking Spanish After talking to Richardson, Willis told the Street Department employees that they could not speak Spanish at all and that an English-only policy was "coming," so they might as well start complying. (Aplt.App. at 258 (Richardson Depo.19) & 874) Three of the Plaintiffs submitted a written complaint about the English-only policy. (Aplt.App. at 874 & n.5) An employee also complained to Richardson about the Spanish-speaking ban, which concerned Richardson because she knew a total ban was not justified by business necessity. (Aplt.App. at 258 (Depo.19-20)) Defendant-Appellee Michael Nettles, the City Administrator, talked to Willis, who admitted telling the employees they could not speak Spanish. (Aplt.App. at 258 (Depo.19-20) & 873) c. Written English-only policy In July of 2002, Nettles promulgated the City's written English-only policy. (Aplt.App. at 874 & 215 (Depo.6)) The policy's stated purpose was to ensure "effective communications among and between employees and various departments," "prevent misunderstandings," and "promote and enhance safe work practices." (Aplt.App. at 875) The policy required that English be spoken during "all work related and business communications during the work day" except when speaking with "a citizen, business owner, organization or criminal suspect" with limited English skills. (Id.) The policy exempted: 1) "strictly private communications between co-workers" during lunch or breaks and "before or after work hours while . . . on City property if City property is not being used for the communication"; and 2) private communications with family members "so long as the communications are limited in time and are not disruptive." (Id.) Finally, the policy directed employees with limited English skills to talk to Human Resources if they could not understand communications. (Id.) After issuing the written policy, the City clarified that English was required during work hours and on City property during non-work hours if any English-only speaker was present. (Aplt.App. at 877-78 & 322) In other words, employees could only speak Spanish if everyone around them spoke Spanish. (Id.) Accordingly, Plaintiff Ruben Rios testified that Nettles issued a document stating that Spanish could be spoken "with another individual in a ditch but nowhere in the other departments." (Aplt.App. at 137) Rios also understood that he could speak Spanish on lunch or a break, but only if everyone was Hispanic. (Aplt.App. at 137-38) Similarly, Plaintiff Lloyd Lopez was told that he could speak Spanish in a truck or a break room when alone with another Hispanic employee or on the phone with his wife, but if an English-only speaker walked by he had to switch to English because "it would offend whoever was walking by." (Aplt.App. at 410) Both Rios and Lopez were told that the City adopted the policy for "safety" reasons, namely the speaking of Spanish on the City's radio and at work. (Aplt.App. at 138-39 & 409-410) The English-only policy "caused quite a bit of controversy." (Aplt.App. at 772) A significant number of the Hispanic employees felt targeted by the policy. (Aplt.App. at 265 (Depo.47)) At least a dozen of them filed charges of discrimination. (Aplt.App. at 870-71) Conversely, some non-Hispanic employees came forward to complain to Willis that they also had felt uncomfortable when co- workers spoke Spanish. (Aplt.App. at 246 (Depo.21-23)) No employee complained that Spanish speaking created safety problems. (Id.; Aplt.App. at 244 (Depo.15-16)) According to the policy itself and to Nettles, the City adopted the policy for two reasons: to ensure effective communication and to enhance safety. (Aplt.App. at 875 & 223, Depo.37-38)) Richardson asserted a third reason morale. (Aplt.App. at 264 (Depo.43)) The City admits, however, that it had no written record of any communication, morale, or safety problems created by the use of non-English languages. (Aplt.App. at 875) It is also undisputed that the use of non-English languages had never caused any injuries or near-injuries. (Aplt.App. at 876, at 243 (Depo.10-11), & 221 (Depo.30-31)) When asked, Nettles could not give any examples of how an English-only policy would enhance safety. (Aplt.App. at 221-22 (Depo.32-34)) Although Willis was concerned about safety, he never said an English-only policy was necessary for safety reasons. (Aplt.App. at 243 (Depo.10)) City officials also admitted that the English-only policy was overbroad. Willis testified that there was no business justification for prohibiting private conversations in Spanish. (Aplt.App. at 248 (Depo.30-31)) He also testified that the use of Spanish on the radio never interfered with employees' duties. (Aplt.App. at 244 (Depo.13)) Nettles testified that the policy could have addressed the City's radio communication and safety justifications by requiring English on the radio and in emergency or dangerous situations. (Aplt.App. at 222-23 (Depo.36-37)) Similarly, Richardson admitted that the policy's prohibition on speaking Spanish in private conversations during work hours was not justified by business necessity. (Aplt.App. at 266 (Depo.50-51)) Like Nettles, she conceded that the City's business needs required only that English be used on the radio or with regard to job activities. (Aplt.App. at 264, Depo.48)) Finally, the City admits that its policy precludes the hiring of non-English speakers, even to pick up litter or sweep the floor. (Aplt.App. at 226 (Nettles Depo.50-51)) The City has never disciplined anyone for violating the English-only policy. (Aplt.App. at 878) 2. District Court Decision The district court granted summary judgment for the City on the Plaintiffs' disparate impact claim. In evaluating the Plaintiffs' prima facie case, the court noted that Hispanics were the "only significant national origin minority employed by the City of Altus" and "in practice the only group of employees affected by the English-only policy." (Aplt.App. at 878) The court observed that the Tenth Circuit has yet to rule on whether the mere existence of an English-only policy constitutes a prima facie violation of Title VII, as the Commission's guideline at 29 C.F.R. 1606.7 states. (Aplt.App. at 879) Beginning with the Ninth Circuit's decision in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993), the district court reviewed those decisions holding that English-only policies do not, by themselves, have a disparate impact on bilingual employees. (Aplt.App. at 880-82) Although the court acknowledged that two district courts have held that English-only rules violate Title VII, the court found Spun Steak more persuasive. (Aplt.App. at 882) Next, the district court found that even if the Plaintiffs had established a prima facie case, the City had "offered sufficient proof of business justification." (Aplt.App. at 886) First, the City had received complaints about non-Spanish speaking employees being unable to understand Spanish radio communications. (Id.) Second, city officials had received complaints from non-Spanish speaking employees who felt uncomfortable when co-workers spoke Spanish, although the court noted that only one employee had complained prior to the policy's adoption. (Aplt.App. at 886-87 & n.19) Third, the City contended that its policy was justified by safety concerns. (Aplt.App. at 887 n.20) Although the court noted that the City failed to offer any evidence of accidents or near-accidents arising from the use of Spanish, the court stated that "it does not seem necessary that the City await an accident before acting." (Id.) ARGUMENT THIS COURT SHOULD REVERSE SUMMARY JUDGMENT ON THE PLAINTIFFS' CLAIM THAT THE CITY'S ENGLISH-ONLY POLICY VIOLATES TITLE VII BECAUSE IT HAS A DISPARATE IMPACT BASED ON NATIONAL ORIGIN. The district court erred in granting summary judgment on the Plaintiffs' disparate impact claim. To further its goal of eradicating discrimination, Title VII prohibits employers from implementing and maintaining neutral employment practices that have a disparate impact based on national origin. See 42 U.S.C.  2000e-2(k)(1)(A) (setting forth disparate impact standard). Disparate impact claims are analyzed in a three-step burden-shifting framework. See Bullington v. United Air Lines, 186 F.3d 1301, 1312 (10th Cir. 1999) (setting forth burden- shifting scheme), overruled on other grounds by Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also Allen v. City of Chicago, 351 F.3d 306, 311-12 (7th Cir. 2003) (same). First, the plaintiff bears the burden of establishing a prima facie case by demonstrating that an employer "uses a particular employment practice that causes a disparate impact" based on a protected trait. See 42 U.S.C. 2000e-2(k)(1)(A); see also Bullington, 186 F.3d at 1312. Second, the burden shifts to the employer during the second step to "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C.  2000e-2(k)(1)(A)(i); see Bullington, 186 F.3d at 1312. Third, the plaintiff nevertheless may prevail by showing that a less discriminatory "alternative employment practice" existed and that the employer refused to adopt it. 42 U.S.C. 2000e-2(k)(1)(A)(ii); Bullington, 186 F.3d at 1312. Here, the district court erred in concluding that the Plaintiffs had failed to establish a prima facie case. The court also erred in finding that the City established its business necessity defense as a matter of law. Even if the City had established a business necessity defense, summary judgment was inappropriate because the Plaintiffs met their burden of showing that factual issues exist as to the availability of alternative employment practices. A. The Plaintiffs established a prima facie case. The district court correctly recognized that Title VII prohibits discrimination based on linguistic characteristics, which is a proxy for national origin. The court erred, however, in rejecting the Commission's guidelines and holding that the City's English-only policy did not presumptively have an adverse impact on the Plaintiffs. 1. Title VII's prohibition on national origin discrimination includes discrimination based on linguistic characteristics. As the district court implicitly conceded, Title VII's prohibition on national origin discrimination includes "the denial of equal employment opportunity" to individuals with "linguistic characteristics of a national origin group." 29 C.F.R.  1606.1. This is so because "[t]he primary language of an individual is often an essential national origin characteristic." 29 C.F.R. 1606.7(a); see also "National Origin Discrimination," EEOC Compliance Manual Notice at Section 13.V.A. (Dec. 3, 2002) ("linguistic characteristics are a component of national origin"), available at www.eeoc.gov/policy/docs/national-origin.html; Carino v. Univ. of Okla. Bd. of Regents, 750 F.2d 815, 819 (10th Cir. 1984) (discrimination based on "national origin and related accent" unlawful under Title VII). Here, the district court recognized the close nexus between language and national origin. The court stated that it was "undisputed that Hispanics are the only significant national origin minority employed by the City of Altus" and that they are the "only group of employees affected by the English-only policy." (Aplt.App. at 878) Thus, the court correctly understood that "if the English-only policy causes any adverse effects, those effects will be suffered disproportionately by those of Hispanic origin" and would be actionable under Title VII. Spun Steak, 998 F.2d at 1486 (but holding that policy had no significant adverse effects on bilingual employees). The court erred, however, in concluding that the City's English-only policy did not presumptively have adverse effects on the Plaintiffs. 2. Under the Commission's guidelines, the City's English-only policy presumptively had an adverse impact. Under section 1606.7, English-only rules presumptively have an adverse impact based on national origin. See 29 C.F.R. 1606.7(a). The Commission presumes that English-only rules applied at all times violate Title VII. See id. Rules that apply only at certain times like the City's written English-only policy are permissible, but only "where the employer can show that the rule is justified by business necessity." 29 C.F.R. 1606.7(b). Although this Court has cited section 1606.7 with approval in an unpublished opinion, this Court has not yet addressed the validity of the Commission's guideline in a published opinion. See Marquez v. Baker Process, 42 Fed. Appx. 272, 279 (10th Cir. 2002) (stating that "[t]he regulations of the EEOC recognize that a rule requiring employees to speak only English is a burdensome term and condition of employment" but finding that employer established business necessity defense). a. As provided in section 1606.7, English-only rules have an adverse impact. At least five reasons underlie section 1606.7's presumption that English-only policies have adverse effects on the terms and conditions of employment of non- native English speakers, including bilingual individuals. See generally Gutierrez v. Municipal Court, 838 F.2d 1031, 1040 (9th Cir. 1988) (agreeing with EEOC guidelines "that English-only rules generally have an adverse impact on protected groups"), vacated as moot, 490 U.S. 1016 (1989); EEOC v. Synchro-Start Prods. 29 F. Supp. 2d 911, 913-14 (N.D. Ill. 1999) (deferring to English-only guidelines and presumption of disparate impact). First, regardless of an employee's English skills, English-only policies may "create an atmosphere of inferiority, isolation, and intimidation" that could make a "discriminatory working environment." 29 C.F.R. 1606.7(a); see also Garcia v Spun Steak Inc, 13 F.3d 296, 298 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc) (agreeing with EEOC that "being forbidden under penalty of discharge to speak one's native tongue generally has a pernicious effect"). English-only policies, like the City's, that prohibit bilingual Hispanic employees from speaking Spanish in informal conversations "not only make[ ] the individual feel uncomfortable, but [are] tantamount to intimidating him or her" and are "punitive." EEOC v. Premier Operator, 113 F. Supp. 2d 1066, 1070 (N.D. Tex. 2000) (citing expert testimony of professor of linguistics and Hispanic language and culture). As one scholar has stated, "the very nature of a 'Speak English Only' rule (except in safety circumstances) reeks of xenophobia and misplaced 'Americanization.'" James Harvey Domengeaux, Comment, Native-Born Acadians and the Equality Idea, 46 La. L. Rev. 1151, 1167 (1986). Second, English-only rules adversely impact employees with limited or no English skills a category that often includes employees mislabeled "bilingual" by denying them a privilege enjoyed by native English speakers: the opportunity to speak at work. See Spun Steak, 998 F.2d at 1488 (stating that "non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak," and conceding that English-only rule applied to non-English speaker might have adverse effect); Lisa L. Behm, Comment, Protecting Linguistic Minorities under Title VII: The Need for Judicial Deference to the EEOC Guidelines on Discrimination Because of National Origin, 81 Marq. L. Rev. 569, 595 (1998) ("[A]n English-only rule would be substantially likely to hinder the ability of individuals with minimal English proficiency to communicate in the workplace."). Because approximately 10.3 million Americans (4.1% of the total population) currently speak little or no English, English-only rules have the potential of denying millions of Americans and other employees the opportunity to converse at work. See Compliance Manual at Section 13.V. & n.42 (citing 2000 Census). Third, English-only rules create barriers to employment for employees with limited or no English skills. See 45 Fed. Reg. 85632 (Dec. 29, 1980) (goal of national origin guidelines "is to protect employees from discriminatory employment practices and to remove unnecessary barriers, such as the broad speak-English-only rules, which result in the denial of employment opportunities"). One barrier is hiring; otherwise qualified job applicants may not be hired solely because of their inability to comply with English-only rules. Here, the City has admitted that its policy precludes the hiring of non-English speakers, even to pick up litter or sweep the floor. (Aplt.App. at 226 (Depo.50-51)) English-only policies also create employment barriers by discouraging otherwise qualified workers with limited English skills from even applying for jobs. See Bradley v. Pizzaco of Nebraska, 939 F.2d 610, 613 (8th Cir. 1991) ("[A] discriminatory work policy might distort the job applicant pool by discouraging otherwise qualified workers from applying."). Finally, the risk of discipline and termination for violation of English-only rules falls disproportionately on persons with limited or no English skills. Fourth, English-only rules prevent bilingual employees whose first language is not English from speaking in their most effective language. See Premier, 113 F. Supp. 2d at 1073 (rules "disproportionately burden national origin minorities because they preclude many members of these groups from speaking" their most effective language but "rarely, if ever, hav[e] that effect on non-minorit[ies]"); Behm Comment, supra, at 596 ("Since most bilingual individuals must rely on their primary language in order to effectively communicate, English-only rules may significantly hinder [their] ability to communicate in the workplace."). In addition to Americans who speak little or no English, approximately 34.7 million Americans (or about 13.4% of the population) speak a language other than English at home but are able to speak English "very well" or "well," meaning that they are bilingual to some degree. See Compliance Manual at Section 13.V. & n.42 (citing 2000 Census); Census 2000 Summary File 3 (SF 3), QT-P17 Ability to Speak English: 2000, available at www.factfinder.census.gov. Consequently, English- only rules potentially impact millions of bilingual employees by preventing them from speaking in their native language. Fifth, the risk of discipline and termination for violating English-only rules falls disproportionately on bilingual employees as well as persons with limited English skills. As the Commission noted when adopting section 1606.7, "it is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language." 45 Fed. Reg. at 85635. This "code-switching," which is discussed infra, at I.A.2.d., means that bilingual speakers cannot turn "off" their native language and turn "on" their English like a light switch. Therefore, even bilingual employees are "faced with the very real risk of being reprimanded or [ ] losing their jobs if they violate[ ] [an] English-only rule, even if such non-compliance [i]s inadvertent." Premier, 113 F. Supp. 2d at 1070. Finally, section 1606.7 makes practical sense. As Judge Boochever stated in his Spun Steak dissent, "[i]t is hard to envision how the burden of proving" an adverse effect "would be met other than by conclusory self-serving statements of the Spanish-speaking employees or possibly by expert testimony of psychologists." Spun Steak, 998 F.2d at 1490 (Boochever, J. dissenting). For this and the other reasons discussed, this Court should hold that section 1606.7 correctly presumes a disparate impact and that the Plaintiffs therefore established a prima facie case. b. Legislative history supports the validity of section 1606.7. Contrary to the district court's finding, legislative history supports the validity of section 1606.7. (Aplt.App. at 883-84) The only legislative history specifically addressing English-only policies arose during Congress' 1991 amendment of Title VII. That amendment clarified the standard for establishing disparate impact claims. See 42 U.S.C. 2000e-2(k)(1)(A). In discussing the proposed amendment, Senator DeConcini stated that some of his constituents had complained about being disciplined or terminated for using non-English languages at work. See 137 Cong. Rec. S15472-01, S15489 (daily ed. Oct. 30, 1991). Senator Kennedy assured him that the EEOC's guidelines at section 1606.7, which the Commission adopted in 1980, provided an "effective method for dealing with the problem," had "worked well during the past eleven years," and would be consistent with the amendments to Title VII. Id. Because Congress was aware of the Commission's English-only guidelines when amending Title VII and left the Commission's interpretation of Title VII intact, section 1606.7 is entitled to deference. See United States v. Rutherford, 442 U.S. 544, 554 & n.10 (1979) (agency interpretation is entitled to greater deference when Congress is aware of interpretation but has not tried to change it when amending statute in other respects). c. Section 1606.7 is consistent with the Commission's long-standing and thoroughly considered position on English-only rules. In addition to the sound reasoning and legislative history supporting section 1606.7, two additional factors militate in favor of deference to it. See General Elec. v. Gilbert, 429 U.S. 125, 141-42 (1976) (level of deference owed EEOC's Title VII guidelines depends upon "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade") (internal quotations and citation omitted). First, the Commission thoroughly considered its English-only guidelines. See General Elec., 429 U.S. at 141-42. The Commission first published its proposed English-only guidelines as part of proposed revisions to its national origin guidelines. See 45 Fed. Reg. 62728 (Sept. 19, 1980). The Commission published the proposed guidelines in the Federal Register, noting that the Fifth Circuit had recently decided Garcia v. Gloor, 618 F.2d 264 (1980) (English-only rule did not have disparate impact on bilingual employee), and that 13% of the population had a non-English background and might be affected by English-only rules. See id. After receiving more than 250 comments on its proposed national origin guidelines, many concerning the proposed English-only rules, the Commission issued its final guidelines. See 45 Fed. Reg. 85632, 85634 (Dec. 29, 1980). Second, section 1606.7 is consistent with the Commission's long-standing position that English-only rules generally have an adverse impact based on national origin. The Commission first articulated its position more than thirty years ago. See, e.g., Commission Decision 71-446 (1970), CCH EEOC Decisions  6173, 2 FEP Cases 1127, 1128 (English-only rule denied "Spanish surnamed American employees . . . a term, condition, or privilege of employment enjoyed by other employees: to converse in a familiar language with which they are most comfortable") (attached to brief). Since then, the Commission has consistently adhered to its view that English-only policies have an adverse impact. See, e.g., 29 C.F.R. 1606.7; Compliance Manual, at Section 13.V.C. (discussing English-only policies); Premier Operator, 113 F. Supp. 2d 1066; Synchro-Start, 29 F. Supp. 2d 911. In short, section 1606.7 is entitled to deference because it is based on valid reasoning, is supported by the legislative history, was thoroughly considered by the Commission, and is consistent with the Commission's long-standing position on the impact of English-only policies. See General Elec., 429 U.S. at 141-42. d. The Ninth Circuit's decision in Spun Steak invalidating section 1606.7 is fundamentally flawed. Despite the reasons discussed above for deferring to section 1606.7, the district court relied on the Ninth Circuit's decision in Spun Steak to reject it. Spun Steak is the only published circuit court decision to reject the Commission's guideline. Because Spun Steak is based on flawed reasoning, the district court erred in relying upon it. To begin with, Spun Steak erroneously assumes that bilingual employees can readily comply with English-only rules. See Spun Steak, 998 F.2d at 1487. As a number of scholars, courts, and socio-linguistic researchers have recognized, the ability of bilingual individuals to speak only English is not simply a matter of preference. See, e.g., Premier, 113 F. Supp. 2d at 1070 (citing report and testimony of professor of linguistics and Hispanic language and culture that "adhering to an English-only requirement is not simply a matter of preference for Hispanics or other bilingual speakers"). Instead, bilingual speakers whose native language is not English engage in "code switching," which means they unconsciously switch from English to their original language when speaking informally with other non-native English speakers. See, e.g., Premier, 113 F. Supp. 2d at 1069-70; Mark Colon, Note, Line Drawing, Code Switching, and Spanish as Second-Hand Smoke: English-only Workplace Rules and Bilingual Employees, 20 Yale L. & Pol'y Rev. 227, 250-60 (2002) (discussing code switching). Because bilingual speakers often inadvertently slip from one language to another which is not a concern of English-only speakers English-only rules adversely impact bilingual speakers by subjecting them to discipline for violating English-only rules. See Behm Comment, 81 Marq. L. Rev. at 595-96. Even if the ability of bilingual speakers to comply with English-only policies were a matter of preference, the ability to comply with a discriminatory rule does not negate a finding of adverse impact. "Some of the most objectionable discriminatory rules are the least obtrusive in terms of one's ability to comply: being required to sit in the back of a bus, for example; or being relegated during one's law school career to a portion of the classroom dedicated to one's exclusive use." Spun Steak, 13 F.3d at 298 (Reinhardt, J., dissenting from denial of rehearing en banc). The Supreme Court has recognized this principle, holding in Brown v. Board of Education, 347 U.S. 483 (1954), that the segregation of schoolchildren based on race is unlawful, despite the ability of minority children to comply with segregation rules by attending separate schools. See also Reid v. Kraft General Foods, 67 FEP 1367, 1372, 1995 WL 262531, at *6 (E.D. Pa. Apr. 27, 1995) (summary judgment in Title VII religious accommodation case was inappropriate where employer gave plaintiff choice between complying with pants-only policy or adhering to her religious practice of wearing only skirts). The Spun Steak court erred not only in its assumptions about the impact of English-only rules on bilingual employees, but also in concluding that section 1606.7's presumption of a disparate impact contravenes Title VII. See Spun Steak, 998 F.2d at 1490. Nothing in Title VII precludes a determination by the Commission that a particular employment practice is discriminatory. See Spun Steak, 13 F.3d at 300 (Reinhardt, J., dissenting from denial of rehearing en banc). In fact, the Commission has routinely issued guidelines declaring specific employment practices to be unlawful under Title VII. See, e.g., 29 C.F.R.  1604.4(a) (determining "that an employer's rule which forbids or restricts the employment of married women and which is not applicable to married men is [ ] discrimination based on sex . . . ."); 29 C.F.R. 1604.3(a) (unlawful to classify a job as "male" or "female"). The courts have just as routinely accepted the Commission's guidelines declaring specific employment practices to be unlawful. In a case much like this one, the Seventh Circuit adopted the Commission's guidelines on discrimination against married women, currently at section 1604.4(a), and held that the employer's policy requiring female stewardesses to be unmarried discriminated based on sex. See Sprogis v. United Air Lines, 444 F.2d 1194, 1197-98 (7th Cir. 1971). Citing the Commission's guidelines stating that an employer might be able to raise a bona fide occupational qualification defense, the court went on to find that the employer had failed to do so. See id. at 1198-99; see also Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (stating that although Commission's sexual harassment guidelines interpreting Title VII were not controlling, they "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance") (internal quotations and citation omitted). Here, the Commission's guidelines do not mandate judgment for plaintiffs who challenge English-only policies that apply at certain times. Instead, section 1606.7 merely takes the "modest step" of "creat[ing] an inference that the foreign national is disadvantaged" by such a policy. Synchro-Start, 29 F. Supp. 2d at 914. Accordingly, if the only evidence before a jury were an English-only policy applied at certain times, the plaintiff would prevail. See id. However, an employer could avoid liability by showing a business need for the policy. See 29 C.F.R.  1606.7(b); Gutierrez, 838 F.2d at 1040 ("The EEOC guidelines, by requiring that a business necessity be shown before a limited English-only rule may be enforced, properly balance the individual's interest in speaking his primary language and any possible need of the employer to ensure that in particular circumstances only English shall be spoken."), vacated as moot, 490 U.S. 1016. Thus, section 1606.7 merely operates to avoid the need for courts to determine on a case-by-case basis the impact of English-only policies, which are widely used. See Compliance Manual at Section 13.V.C. (stating that in fiscal year 2002 the EEOC received 228 charges challenging English-only policies). Finally, the court's reasoning in Spun Steak is flawed because the court mistakenly asserts that Title VII's legislative history does not support section 1606.7's presumption of a disparate impact. See Spun Steak, 998 F.2d at 1490. As discussed above, the legislative history of the 1991 amendments to Title VII, which occurred two years before the Ninth Circuit decided Spun Steak, actually supports the validity of section 1606.7. Because the district court erred in relying on Spun Steak and refusing to defer to the Commission's guidelines, this Court should hold that the Plaintiffs established their prima facie case. B. Summary judgment was inappropriate because the City did not establish its business necessity defense as a matter of law and because the Plaintiffs raised a factual issue about the availability of alternative employment practices. The district court erred not only in concluding that the Plaintiffs had failed to establish a prima facie case, but also in determining that the City met its burden of showing a business need for the policy and was therefore entitled to summary judgment. The court's analysis on this point was flawed in two respects. First, the City did not meet its "heavy" burden of establishing its business necessity defense. Bradley v. Pizzaco of Neb., 7 F.3d 795, 798 (10th Cir. 1993); see 42 U.S.C.  2000e-2(k)(1)(A)(i); Bullington, 186 F.3d at 1312 (once prima facie case established, "the burden shifts to defendant to show that the challenged practice is job related and consistent with business necessity"). Second, the Plaintiffs rebutted each of the City's asserted business needs by raising a genuine issue of material fact as to less discriminatory alternative employment practices. See 42 U.S.C.  2000e-2(k)(1)(A)(ii); see also York v. Am. Tel. & Tel., 95 F.3d 948, 955 (10th Cir. 1996) (plaintiff may prevail by showing "equally [ ] effective" "alternative selection criteria"). As the district court noted, the City offered three business justifications for the policy: 1) to facilitate radio communications between employees; 2) to prevent English-only employees from feeling excluded; and 3) to enhance safety. (Aplt.App. at 875, 886-87) The City's evidence in support of these justifications, however, is either absent or disputed. Accordingly, summary judgment was inappropriate. Summary judgment also was inappropriate because, even if the City's business justifications were valid, the Plaintiffs offered evidence of alternative employment practices. Because evidence of the City's reasons for adopting the policy overlaps with the Plaintiffs' evidence of alternative employment practices, they are discussed below together. 1. Communication justification The district court wrongly concluded that because the City had offered "evidence that city officials had received complaints" about Spanish being spoken on the radio, the City had established its business necessity defense. (Aplt.App. at 886) The City concedes it has no written evidence of any communication problems. (Aplt.App. at 875) The record also shows that the City received one complaint not multiple complaints from City employees about the use of Spanish on the radio. (Aplt.App. at 873 & 316, 7) Willis, who received the complaint, also admitted that he had no knowledge of City business being disrupted or delayed because Spanish was used on the radio. (Aplt.App. at 243 (Depo.11)) Evidence of a single complaint that employees were using Spanish on the radio does not satisfy the City's "heavy" burden of establishing a business necessity defense. See Pizzaco, 7 F.3d at 798 (vice-president's testimony that better-looking people increased sales and that survey indicated that 20% of customers would have negative reaction to bearded deliverymen did not establish business necessity for no-beard policy). Even if a single complaint about Spanish being spoken on the radio could establish a business necessity defense, summary judgment was inappropriate because the Plaintiffs offered undisputed evidence of alternative employment practices. As the Plaintiffs pointed out below, the City's own employees admitted that the English-only policy went beyond addressing concerns about the use of Spanish on the radio. See Aplt.App. at 222 (Nettles Depo.36) (testifying that English-only policy could have addressed radio communication problems by prohibiting non-English languages on radio); 224 (Nettles Depo.44) (acknowledging that policy covers situations not implicated by use of radio); 266 (Richardson Depo.50-51) (stating she was unaware of any business justification for allowing Hispanics to be disciplined for speaking Spanish in private conversation during business hours). Accordingly, the Plaintiffs have identified evidence that, at a minimum, creates a factual issue as to the existence of an alternative employment practice that could address the City's radio- communication justification. 2. Morale problems The district court concluded that the English-only policy was justified because the City had received "complaints" from monolingual employees that they felt uncomfortable when others spoke Spanish. (Aplt.App. at 886-87) In reaching this conclusion, however, the district court wrongly relied on Willis' testimony that he had received complaints after the City adopted the policy. (Aplt.App. at 886-87 & n.19) It is axiomatic that complaints received after an employer's adoption of a policy cannot be used to justify its enactment. To the contrary, these complaints demonstrate that the English-only policy had a deleterious effect on employee morale by making English-only speakers feel free to complain about their Spanish- speaking co-workers. Excluding Willis' testimony about post-policy complaints, the only remaining evidence of a "morale" problem consists of Willis' conflicting testimony about complaints he received before the policy's adoption. Willis testified both that he received one complaint and that he received more than one complaint. (Aplt.App. at 887 n.19, at 244 (Depo.14), & 246 (Depo.21-22)) Accordingly, a factual issue exists as to the number of complaints and whether there actually was any employee discord. See Premier, 113 F. Supp. 2d at 1070 (no credible evidence of employee discord to support "office harmony" defense). Even if the City received several complaints, co-worker preference for a monolingual English-only workplace does not establish a business need for an English-only policy. See Pizzaco, 7 F.3d at 799 (customer preference for clean- shaven deliverymen did not establish business necessity for strict no-beard policy); Gerdom v. Continental Airlines, 692 F.2d 602, 609 (9th Cir. 1982) (customer preference for slim female flight attendants did not justify discriminatory policy when weight was unrelated to job performance; "it would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid"). If co-worker preference did establish Title VII's business necessity defense, then employers could justify a "blond-hair- blue-eyes-only" policy by pointing to employee preference, despite the fact such a policy would preclude the hiring of many minorities. Finally, the City offered no evidence that the English-only policy enhanced employee morale. See Premier, 113 F. Supp. 2d at 1070 ("[T]here is no evidence that the subject policy and its enforcement promoted 'harmony' in the workplace."). Quite the opposite, all of the evidence about employee morale indicates that the City's English-only rule adversely affected morale. Indeed, the evidence shows that Spanish-speaking employees felt targeted by the policy and that at least a dozen Hispanics filed charges of discrimination. (Aplt.App. at 870 & 265 (Depo.47)) Conversely, after the policy's adoption, English-only speakers employees felt "comfortable" complaining about their co-workers' past use of Spanish. (Aplt.App. at 244 (Depo.15)) Accordingly, far from raising employee morale, the English-only policy created division and dissension among the City's employees. Even if employee morale justified adoption of an English-only policy, there was no justification for requiring English in the presence of English-only speakers when employees were on lunch or breaks, or when they were talking to their family members on the phone. The City could have adopted a less draconian, less discriminatory rule. Instead, it promulgated a rule that, on the current record, does not comply with Title VII. 3. Safety concerns The district court's conclusion that safety concerns justified the City's English-only policy lacks any support in the record. The court itself acknowledged that the City offered no evidence of "accidents or near-accidents resulting from the use of the Spanish language and that the policy is not limited to emergency communications." (Aplt.App. at 887 n.20) The City could not even offer a hypothetical example of how an English-only rule could promote safety. (Aplt.App. at 876, 221-22 (Depo.32-34)) Although Willis said he was concerned about safety, he testified that no one had ever been injured or put in danger from speaking Spanish, he had never said safety concerns necessitated an English-only policy, and no one had complained that speaking Spanish created safety problems. (Aplt.App. at 243 (Depo.10-11), 244 (Depo.15-16), 245 (Depo.19-20)) Thus, the district court concluded that the City had established its safety defense although the City offered no evidence of safety problems requiring an English-only policy. The district court's conclusion undermines Title VII's disparate impact standard. Under the statute, the burden is on the employer to prove a business necessity defense. See 42 U.S.C. 2000e-2(k)(1)(A) (employer must "demonstrate that the challenged practice is job related . . . and consistent with business necessity"). To allow an employer to meet its burden simply by stating that "safety" justifies its policy without offering any evidence renders this requirement a nullity. Finally, even if the City's safety justification were valid, the Plaintiffs offered evidence of an alternative employment practice that could address the City's specific safety concerns a more limited policy. See Compliance Manual at 13.C.1. ("Even where an English-only rule has been adopted for nondiscriminatory reasons, the employer's use of the rule should relate to specific circumstances in its workplace."). Nettles, Richardson, and Willis all admitted that the policy went beyond addressing the City's safety concerns. (Aplt.App. at 223 (Nettles Depo.37) (policy could have addressed safety by requiring English in emergency or dangerous situations); 265 (Richardson Depo.48) (business needs required only that English be used on radios or with regard to job activities); 249 (Willis Depo.34) (any business interest the City had in English-only policy could be met by requiring English in business conversations). CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse summary judgment and remand this case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. App. P. 32(a)(7)(B)(i) and 29(d). The brief contains 6,965 words. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief on August 2, 2004 by overnight mail, postage pre-paid, to the following: Counsel for Defendants David W. Lee Ambre C. Gooch Comingdeer, Lee & Gooch 6011 N. Robinson Ave. Oklahoma City, OK 73118-7425 Margaret McMorrow-Love 228 Robert S. Kerr Ave., Ste. 540 Oklahoma City, OK 73102 David W. Kirk Lytle, Soule, & Curlee 119 North Robinson, Ste. 1200 Oklahoma City, OK 73102 Counsel for Plaintiffs Mark Hammons Tamara L.F. Gowens Hammons & Associates, Inc. 325 Dean A. McGee Oklahoma City, OK 73102 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 _________________________________ 1 Authorization to file the Commission’s brief in this case, involving a public sector employer, was obtained from the Office of the Solicitor General, United States Department of Justice. See Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. Off. Legal Counsel 57 (1983). 2 The Commission takes no position on any other issues. 3 Citing Willis’ testimony, the district court stated that the Plaintiffs had offered evidence that only one employee complained prior to the adoption of the policy. (Aplt.App. at 887, n.19) Willis’ testimony on this point is conflicting; he testified both that he received only one complaint and, later, that he received “more than one” complaint prior to the policy’s adoption. (Aplt.App. at 244 (Depo.14-15), at 246 (Depo.21-22)) 4 The Fifth Circuit has held that an English-only policy does not have a disparate impact on bilingual employees, but that case was decided before the Commission issued section 1606.7, which the court specifically noted. See Garcia v. Gloor, 618 F.2d 264, 268 n.1 (5th Cir. 1980). The Fourth Circuit has affirmed a lower court decision rejecting section 1606.7, but the Fourth Circuit’s decision was unpublished and failed to address the disparate impact holding. See Long v. First Union Corp. of Va., 894 F. Supp. 933 (E.D. Va. 1995) (English-only policy had no disparate impact on bilingual plaintiffs), aff’d, No. 95-1986, 1996 WL 281954 (4th Cir. May 29, 1996). Finally, the Eleventh Circuit has affirmed an unpublished lower court decision upholding an English-only policy, but the lower court failed to address section 1606.7 and the Eleventh Circuit’s decision was unpublished. Gonzalez v. Salvation Army, 1991 WL 11009376 (M.D. Fla. June 3, 1991) (policy served legitimate purpose of allowing supervisors and co-workers to understand what was being said in work area), aff’d, No. 91-3588, 985 F.2d 578 (unpublished table decision) (Feb. 1, 1993). 5 The court did not cite to evidence that the public had complained about Spanish being used on the radio. Even if it had, these complaints could not justify the City’s English-only policy. See Pizzaco, 7 F.3d at 799 (customer preference did not establish business necessity defense).