LANGUAGE AND IDENTITY

Title VII of the 1964 Civil Rights Act protects against discrimination in employment on the basis of race, color, sex, religion and national origin. However when the judicial system has examined English Only workplace policies in light of Title VII, it has generally determined that such policies are not discriminatory if an employee is able to speak English. Although plaintiffs have argued that language is inextricably linked to national origin and cultural identity, the courts have stated that the use of a language other than English is detrimental to the morale of monolingual English speakers and a single language is necessary to ensure workplace harmony and proper management. This paper examines the court cases where English Only workplace policies have been challenged, and identifies the prevalent myths and ideologies held by businesses and the courts about language use, identity, and bilingual speakers. Through the process of homogeneism, linguistic diversity is rejected as monolingual English speakers are able to create and enforce rules that favor themselves as they construct the identity of “American” in their own image.

Language is a central feature of human identity. When we hear someone speak, we immediately make guesses about gender, education level, age, profession, and place of origin. Beyond this individual matter, a language is a powerful symbol of national and ethnic identity. (Spolsky, 1999, p. 181)

INTRODUCTION

Language—both code and content—is a complicated dance between internal and external interpretations of our identity. Within each community of practice, defined by Eckert and McConnell-Ginet (1999, p. 185) as groups “whose joint engagement in some activity of enterprise is sufficiently intensive to give rise over time to a repertoire of shared practices,” certain linguistic (among other) practices are understood by the members to be more appropriate than others. While monolingual speakers are restricted to altering the content and register of their speech, bilingual speakers are able to alter the code, as well as content and register, of their language dependent upon the situation. Speakers who embrace the identity of a particular community will engage in positive identity practices, while those who reject the identity will use negative identity practices to distance themselves from it (Bucholtz, 1999). However, this framework only takes into account the intentions of the speaker, and neglects the role of the hearer. As Spolsky implies above, language is not only a means for us to present our own notion of “who we are,” but it is also a way for others to project onto us their own suppositions of the way “we must be.” Conflict arises when the hearer has a different understanding of the speaker’s identity than the one the speaker desires. The tension is further compounded when the hearer is in a position of power and can not only misinterpret the desires of the speaker, but can actively thwart this expression, forcing the speaker into an entirely different, perhaps unwanted, identity. This plays out daily in the workplaces of America, where English Only policies are enforced to maintain the powerful hearers’ view that good workers speak English among themselves and refrain from other, inappropriate, languages.
The use of language to construct identity has been explored in education (Adger, 1998; Bucholtz, 1999; Fordham, 1998; Toohey, 2000), specifically among bilingual Spanish-English speaking students (Garcia, 2001; Zavala, 2000) and in bilingual Spanish-English society as a whole (Johnson, 2000; Morales, 2002; Stepick & Stepick, 2002; Valdés, 2000; Zentella, 2002), but little research has focused on bilinguals in the workplace (Goldstein, 1997; Martinovic-Zic, 1998). Court cases provide us the most revealing records of the struggle between bilingual workers and their monolingual employers and illustrate that, while other language groups have been affected by English Only policies, the policies have predominantly affected Spanish speaking communities. Court cases show that the linguistic practices of the workplace community of practice have been dictated successfully by the employers, not the members themselves. This disempowerment has been upheld by the judicial system, which believes that language is not a component of ethnic identity, especially in instances where the employee has the ability to speak the majority language. As long as the employer makes a statement of business necessity, no matter how weak or spurious the argument, the courts have agreed that English Only policies are not discriminatory. By identifying English as the only appropriate language between workers, the employer is attempting to mandate a uniform identity (that of English speaking worker) while perpetuating the idea that other languages should be neither seen nor heard. Thus, as arbiters of appropriateness and controllers of the homogenization process, the majority is able to maintain its position of power.
How is it that, even as the courts are looking at the application of Title VII of the Civil Rights Act, which was written to protect minority groups from discrimination, they support these discriminatory workplace practices? Why is it that a country that bills itself as “a nation of immigrants” seeks to deny its residents their cultural heritage? How can a citizenship that proclaims to value independence, individuality, and innovation simultaneously support the homogenization of itself? In this study, I will examine cases of English Only in the workplace to try to answer these questions. Lippi-Green (1997) states that discrimination based on accent is the “last back door to discrimination,” but this in no way implies that it is the only form of language discrimination that still occurs. Even a cursory scan of these court cases will show that many forms of language discrimination remain pervasive and are, in fact, sanctioned by the courts. An examination of the reasons given by employers to justify their negative identity practices, as well as judicial reasons for accepting these justifications, will reveal the myths held about language use and the ideologies supporting them.

RELATION BETWEEN IDENTITY AND LANGUAGE

Neither identity nor language use is a fixed notion; both are dynamic, depending upon time and place (Norton, 1995). How we perceive ourselves changes with our community of practice, allowing us multiple identities over the years or even within a day. In discussions of ethnic identity, many have pointed out that language is not a necessary requirement to identify with an ethnicity (e.g., a person may identify themselves as Irish yet not speak Gaelic; see Eastman & Reese, 1981, or Liebkind, 1999). Additionally, an ethnic group or individual ascribing to that group may have a symbolic attachment to an associated language, but may use another more utilitarian language instead. More commonly an ethnic group identifies with a specific language:
For the majority of Hispanics, the Spanish language runs deeply into cultural and personal identities. Anzaldúa’s (1987) eloquent phrasing of this principle captures the language-identity fusion: “Ethnic identity is twin skin to linguistic identity—I am my language” (p. 59). To relinquish Spanish either literally or symbolically (which many monolingual citizens of the United States seem to think is appropriate for integration into the country) is to relinquish a significant and powerful dimension of personal and social identity. (Johnson, 2000, p. 177)
However, all this presumes the speaker is able to self-select their ethnicity, or more broadly, their identity.
The work of the sociologist Goffman has been influential in showing that the self is constructed entirely through discourse, making our language choices of paramount importance to our identity construction. In fact, he states that personal identity is defined by how others identify us, not how we identify ourselves (1963). The speaker can attempt to influence how others perceive them, but ultimately it is the hearer who creates the speaker’s identity. If the speaker is not allowed any influence on their own output, then the hearer is able to construct an identity for the speaker which may be entirely disparate from the speaker’s desired identity. This allows the hearer an inordinate amount of power, and diminishes the self-sufficiency and independence of the speaker. This is a frequently used technique to control populations in settings as diverse as schools, prisons, and workplaces. It is also used in national language policies to extinguish the power associated with politically “subversive” and “inappropriate” languages, such as Catalan in Spain or Hokkien in Singapore (see Pennycook, 1994). Being multilingual in the wrong languages is seen as an impediment to integration and hegemony, which is equated with harmony, although Phillipson (1999) has pointed out that there is “no straight correlation between a single language such as English and positive ascriptions such as progress, peace, international understanding, or the enjoyment of human rights” (p. 99).

BILINGUAL IDENTITY

Bilingual language use by a minority group is often analyzed as having two components: the “we” versus “they” code (Gumperz, 1982; Lambert, 1972 in Zentella, 1990), or the high versus low language (Valdés, 2000). The minority language “we” code represents in-group speech. It connotes intimacy and is largely confined to the home because it suffers lower prestige than the “they” code or high language, which is the language of the more powerful group and is associated with wealth and status. In an English speaking environment, Spanish speakers may choose to use Spanish to signify themselves as different from the dominant group, while simultaneously creating camaraderie with other Spanish speakers. These choices are made not only within situations, but within conversations. Code switching is another form of language use, which can be at once exclusionary and inclusionary.
It serves to create an important sense of ‘them’ and ‘us’, as outsiders cannot easily share in this linguistic code…. To insiders this is a legitimate form of communication with its own unconscious rules and forms. It serves as an important identity marker for the Spanish-speaking community, and like any linguistic code, is a dynamic, evolving symbol of solidarity. (Mar-Molinero, 2000, p. 185)
While outsiders may view code switching or code mixing as a deficient ability to speak English (Zentella, 2002), those who speak “Spanglish” may see it as representative of their identities as Spanish speaking Americans. “Spanglish is what we speak, but it is also who we Latinos are, and how we act, and how we perceive the world” (Morales, 2002, p. 3).
So much of the discussion of multilingualism assumes that the speakers are equally proficient in all languages. But for many, although they have at least a fundamental proficiency in English, they are not comfortable with the language. Although able to create grammatically correct utterances, they are unable to fully express themselves and create their desired identity. They may rely on their primary language because it is a quicker and more effective communication tool. For many then, language is not a uniform that can be put on when they arrive at work and removed at the end of the day, but is integral to their being, in the way that religion or political affiliation is to others.

HOMOGENEISM

A nation of immigrants, Americans have always feared the newest arrivals (for historical snapshots of American xenophobia, see Crawford, 1992; Daniels, 1990; Reimers, 1998; Ross, 1994). Increasing numbers translate into increasing power, and new immigrants threaten the status of those who have come before. Allport notes “it is not a person’s present status in society that is important. It is rather the shifting of his/her status upward or downward that regulates prejudice” (1979, in Ochoa, 1995, p. 244). More specifically, Beer (1985) states “when certain subordinate groups break out of a traditionally subservient position and improve their situation relative to others, the likelihood is that there will be conflict” (p. 217). Reacting to this loss of power, the majority establishes laws and policies most favorable to themselves. English Only workplace policies are generally an attempt to dictate the identity of workers in order to exercise hegemony, and to remake the workers in the image of the English speaking employer. Within this is the unspoken assumption that it is both natural and preferable to be monolingual.
Work-related language attitudes can also be founded in cultural notions about national, class, or ethnic privilege. Even characterizing the United States as “an English speaking country” presumes the privilege of not mentioning that millions of its residents speak languages other than English. A person with this sense of language privilege believes in the right not to be subjected to varieties other than his or her own.” (Johnson, 2000, p. 290)
Irvine and Gal (2000) call this practice erasure: “the process in which ideology, in simplifying the sociolinguistic field, renders some person or activities (or sociolinguistic phenomena) invisible” (p. 38). Here, citizens, and their languages, are erased from the landscape by the prevailing ideology.
The importance of understanding ideologies concerning language use has recently been highlighted by the work of several linguistic anthropologists. Irvine (1989) defines language ideology as “the cultural system of ideas about social and linguistic relationships, together with their loading of moral and political interests (p. 5) and Kroskrity (2000) emphasizes that it is “constructed in the interest of a specific social or cultural group” (p. 8). In the United States, that prevailing interest is the population of monolingual English speakers, and they benefit most from an ideology that believes a single language creates national unity and is vital to establishing a resident’s identity as an American. Blommaert (2004) reminds us that ideology need not reflect reality, and through the process of erasure Americans who subscribe to this ideology can conveniently ignore instances of conflict and confusion conducted in English, as well as their fellow citizens who identify themselves as American yet speak a language other than English. This ideology has many names, but one goal. Called Standard Language Ideology (Lippi-Green, 1997), monoglot ideology (Silverstein, 1996; Blommaert, 2004) or homogeneism (Blommaert & Verschueren, 1998), it assumes monolingualism can and does exist and is a necessary component of nation building, and attempts to return society back to its pure, harmonious roots.
When a single language is prized above all others, there is danger that those others will be silenced, both literally and figuratively. Lippi-Green (1997) states that “a standard language ideology, which proposes that an idealized nation-state has one perfect, homogenous language, becomes the means by which discourse is seized, and provides rationalization for limiting access to discourse” (pp. 64-65). A monoglot ideology, warns Blommaert (2004), will not only deny that linguistic diversity exists within its borders, but will put in place practices that prohibit such diversity. When English is the only language that is allowed to be heard, other languages and their entwined cultures and ideas are effectively silenced. “Through sameness of language is produced sameness of sentiment and thoughts,” declared the Federal Commissioner of Indian Affairs in 1887 (Crawford, 1992, p. 48) as he instituted English Only boarding schools in an effort to eradicate the Navajo language and Native American resistance to the U.S. government. When society ascribes positive values to one language over others, speakers of devalued languages may be shamed into abandoning their native tongue. In the quest for a more positive social identity, they may choose to assimilate linguistically. “If language is a salient marker of group membership, the individual may face linguistic adaptations that may result in subtractive bilingualism or even language erosion” (Hansen & Liu, 1997, p. 568).
The process of homogeneism is especially troubling, as homogeneity is not only seen as necessary and desirable, but is also viewed as the norm. Blommaert and Verschueren (1998) raise several important points regarding this process. First, simply by stating that monolingualism is the norm, all bilinguals are positioned as abnormal, and consequently take on the role as “the other.” Linguistic diversity is immediately rejected as deviant. Second, when the ideology calls for the integration of the other (as in the American melting pot idea), positions of power are taken up. Not only is the bilingual positioned as the outsider, as “integrate” assumes there is an undesirable outside and a desirable inside, but they must follow a path defined and controlled by those on the inside. Inequality is inscribed in the process. As a result of this inequality, the majority makes demands on the outsiders in exchange for their admission to the inner circle. So, in order to enjoy the privileges of voting, one must read the ballots in English, or to take on the identity of an American one must speak English. Both these demands propel the “need” to test applicants for U.S. citizenship on their English language proficiency. However Piller (2001) has pointed out that the tests are less about establishing the applicant’s true language proficiency than they are a means to exclude undesirable applicants. This gatekeeping function maintains the privileges of the majority, and ensures that only those who can sustain the prevailing ideology (Americans speak English) will be allowed entry. The proprietary hold on American values and identity is seen in Huntington (2004): “There is no Americano dream. There is only the American dream created by an Anglo-Protestant society. Mexican Americans will share in that dream and in that society only if they dream in English.” Finally, the disproportionate balance of power even shows up in the notion of identity. Blommaert and Verschueren illustrate this “asymmetrical view of identity.” The majority demands that the outsiders must adapt to values “so fundamental to our identity that we cannot accept their being questioned by people in our midst who would not share them” (p. 121). In this case speaking English is the unquestionably fundamental pillar of American identity. And yet, “outsiders” are expected to easily give up their language, which by right should be innate to their identity.
Maintaining one’s native language is seen as spiteful—the purposeful rejection of American norms and values. Those who use a language other than English in the workplace are characterized as rude and insubordinate (see Haviland, 2003 for analysis of one such workplace). In order to be a good worker, and a good American, one must repudiate one’s native tongue and assimilate completely. Only then does monolingual America believe it can be a nation at peace with itself.

HISPANOPHOBIA

Monolingual English speakers, predicting dire consequences for the country, contend that allowing immigrants to continue using their native language allows them to reject American values. Currently, Spanish speakers are the latest wave of immigrants to threaten the security of White America, prompting Zentella (1997) to coin the phrase “Hispanophobia.” (The irony is not lost on Castellanos (1992) who documents the exploration of America by Spanish Europeans long before White Europeans.) Present day migration is seen as an “aberrant form of human behavior” (Blommaert & Verschueren, 1998, p. 118), and confronted with neighbors who do not sound or look like them, these Americans call for their integration, if not their return from whence they came. As Susan Tulley, a southern California resident and President of the Citizen’s Committee on Immigration Policy states, “Your heart goes out to people who are just seeking a better way of life. We do have an obligation to help Mexico develop. I’d rather do that than say all you people come here and become my problem. I’m willing to give money to my church to build houses in Mexico. But I’m sick to death of my own children competing in the classroom for a decent education” (in Maharidge, 1996, p. 163). Tulley believes Mexican children are receiving an unfair share of the decent (apparently finite) education earmarked for her children, and that their parents are a burden she must shoulder. It would be much easier to send money through an intermediary and wipe her hands clean, though one has to wonder why she is more comfortable aiding those unknown and far away than her children’s classmates. The fear that Spanish speakers are taking away something that rightfully belongs to the English speaking majority is common across the country. This customer’s complaint, which resulted in the firing of a New Jersey Rite Aid clerk, hits a common refrain: “‘Shouldn’t you be speaking English? Isn’t this an American store?.… You are taking an American job and you are working for an American company, so you should speak English.’” (Cook, 1994, in Zentella, 1997, p. 77). And yet, oftentimes the Spanish speaker is not taking an American job, or to rephrase, is not taking a job that an English speaker would desire. The American economy is balanced on the backs of those immigrants whose limited English dictates they must accept the low paying or dirty jobs that White America disdains. Gardeners, housekeepers, babysitters, factory workers, trash collectors … there is no doubt that Tulley’s vision of America would radically change if the immigrants who keep her day running smoothly returned to their home countries.
The majority, demanding that immigrants assimilate, encourages them to cast aside (or at least hide at home) any traces of their ethnicity. “Immigrants are not supposed to be heard.… Immigrant culture and language—assumed to have little prestige or usefulness in comparison with the dominant American culture and the English language—are supposed to fade away quickly as assimilation runs its course” (Castro, 1992, p. 180). Huntington (2004) warns that the migration of Latinos will ultimately cause America to divide along language and culture lines because Latinos refuse to integrate linguistically. “If the second generation does not reject Spanish outright, the third generation is also likely to be bilingual, and fluency in both languages is likely to become institutionalized in the Mexican-American community.” It is not only speaking Spanish as a primary language that is troubling to him, but the bilingual’s ability to speak Spanish at all. The entire language, and its accompanying culture, must be eradicated within the U.S. borders if America is to remain unified.
The late 1990s saw an explosion of Spanish language advertising as businesses courted Spanish speaking consumers, adding fuel to monolinguals’ fears about a linguistic takeover of the country. Ironically, it was the result of American values—capitalist ones. An untapped market was discovered and everyone scrambled to get their piece, necessitating bilingual workers. Suddenly, being a member of the majority was no longer the privileged position. Dicker (1996) notes this was especially problematic for monolingual English residents in Miami:
This was a telling sign for mainstream Americans that they no longer had the upper hand; for the first time for many of them, being a monolingual, native English-speaker carried no presumption of advantage in the labor market. In addition it defied the proverbial melting-pot fantasy; Hispanics in Miami did not have to give up their native identity in order to make it in America (in Mar-Molinero, 2000, p. 183)
How then to deal with bilingual employees? Financially, employers need them to reach out to non-English speaking customers (or those who prefer to use another language, as the customer is always right when they have cash in hand) as well as fill low paying jobs, but at the same time employers still need to maintain control over these workers. Many businesses have initiated English Only policies as a way of managing and monitoring their employees’ speech, consequently managing and monitoring their identities. The schizophrenic message to these employees is that their language is valued and appropriate when it means dollars for the business, but otherwise is inappropriate in the workplace.

LANGUAGE AND THE LAW

The desire to designate English as the official language of the United States appears whenever the English speaking population is threatened by an increasing number of immigrants. The need to “protect” English (from dying out or being sullied?) has led groups such as English First and US English to call for a constitutional amendment, and individuals like Ron Unz to lobby for the elimination of bilingual education and support English Only at the state level. Although recently initiatives in Arizona, Alaska, and Oklahoma were declared unconstitutional, English Only legislation remains on the books in 24 other states. What the states mean when they say English is the official language has caused confusion because the legislation is different in every state. Several states simply say that “English is the official language” with no further discussion of how that status should be enacted (Arkansas, Colorado). Some note English should be “preserved and enhanced” (Alabama, California), while others state that English is the language of public record (Georgia, Iowa). Utah’s policy is the strictest, restricting state agencies from using languages other than English with the exceptions of law enforcement, public health and safety needs, educational institutions, judicial proceedings, and libraries. (See Crawford, n.d., for each state’s legislation.)
While the judicial system has noted that the laws are largely symbolic and non-prohibitive, citizens often interpret them to mean English is now the mandatory language of daily life. In one instance, an elementary school bus driver prohibited students from speaking Spanish on their way to school after Colorado passed its legislation (Zentella, 1997). Businesses have enforced English Only policies at the workplace, mistakenly thinking it is mandated by the state. Although the mandatory use of English in government is legal in states where such legislation has been passed, the private workplace is under no such mandate. California took action in 2002 to clear up the confusion. Though the state passed an Official English constitutional amendment in 1986, this recent law prohibits English Only policies in the workplace “in recognition of the fact that ‘speak English-only’ rules can be discriminatory because of the close connection between a person’s language and their ethnicity” (ACLU, 2002). Though it does not impose penalties, this law will strengthen the case of workers who file suits. This, coupled with the existing federal law, should make clear to California businesses that workers are entitled to language rights in the workplace. A similar amendment to Illinois’ Human Rights Act went into effect in January of 2004.
Title VII of the 1964 Civil Rights Act protects against discrimination in employment on the basis of race, color, sex, religion, and national origin (42 U.S.C. §2000e-2). As a result of Garcia v. Gloor, the Equal Employment Opportunity Commission (EEOC) created Guidelines in 1980 to aid businesses in the application of Title VII legislation. According to the Guidelines, language is “often an essential national origin characteristic” and English Only rules are discriminatory if applied at all times, including breaks and lunch. However businesses may have such a rule if they can show business justification for it (29 C.F.R. §1606.7). There are two ways to challenge such policies. The first is disparate treatment, which states that the policy intentionally discriminates on the basis of national origin. The second, more commonly cited, is disparate impact. Here, a seemingly neutral policy disproportionately discriminates against a minority group.
Many courts have disregarded the EEOC Guidelines entirely, and even those that have recognized them have sided favorably with the justifications given by the defendant businesses. The two justifications most commonly cited—to promote harmony in the workplace and the need for supervisors to monitor employees—privilege the desires and abilities of English monolinguals over those of their bilingual counterparts. Language use (that is the ability to speak at all, let alone in a chosen language) has been viewed as an employee privilege, not right, that can be granted and rescinded by the employer. On the whole, the courts have ruled that language is not a characteristic of national origin, and that employees that can speak English must speak English when such policies are in place. The “inconvenience” of speaking English is not grounds for a lawsuit. However, no tests have been introduced to measure the extent of that inconvenience or how much English an employee must know so that they can speak it.
Workers who believe they have suffered as a result of workplace language policies first file a complaint with the EEOC. The EEOC investigates the claim in a two-step process. First, the employee must prove the company had an English Only policy. If the policy applied to only parts of the workday, the company is made to illustrate why such a policy was necessary for the operation of the business. If the EEOC believes the reasons of business necessity provided are insufficient, or if the policy covered the entirety of the workday (including breaks and lunch), it will file a lawsuit on behalf of the complainant in state district court. Many times, companies will settle before the case goes to court and will agree to make policy changes and/or pay damages to the affected worker. If the case is heard by a judge at the state district court, the party that is ruled against in the opinion, or decision, has the option of appealing the case, that is, asking the courts to reconsider. If that option is taken, the case goes up to the federal circuit court, which handles the appeals of several district courts. Circuit court cases are usually heard by a panel of three judges, and those in agreement (the majority) write the opinion of the court, while the disagreeing judge is allowed to write a dissent presenting the reasons for disagreement. It is rare, but a rehearing with the same three judges or with all active judges of the specific circuit court (en banc) can occur. If a party is still unhappy with the outcome, they can ask the US Supreme Court to hear the case. This however is entirely at the Supreme Court’s discretion, and it is not obligated to explain why it denies a hearing. (See del Valle, 2003, for a thorough explanation of the legal processes, and the courts’ interpretations of language rights in all facets of society, including the workplace.)

MYTHS OF THE ENGLISH ONLY WORKPLACE

The prevailing linguistic ideology promoting homogenization embodies several myths. As the court cases below illustrate, these myths are held both by the employers and the judicial system. They state that English is the language of the United States, yet deny language is a component of national origin. They believe a single language will lead to more effective communication and will create racial harmony. Those who speak a language other than English are characterized variously as insubordinate, disruptive and distracting, rude and vulgar, selfish and discourteous, lazy and untrustworthy, violent, willingly engaging in dangerous and unhealthy habits, and in need of authority to determine what is best for them.
In the majority of court cases, workers have been forced to speak English for reasons of safety, morale, and/or ease of management. Uniformity of language is equated with a positive, harmonious, and safe working environment. In each instance, monolingual speakers, usually coworkers, complained about not being able to understand what was being said. Haviland (2003) refers to this as “linguistic paranoia,” which is defined as the assumption that when those around you speak another language it can only be because they don’t want you to understand the bad things they are saying about you. In each instance, the communicative burden, or the responsibility a participant takes on in order to successfully complete the communicative process, is placed on the bilingual speaker; the monolingual English speaker need only say “I don’t understand you,” and then must be accommodated (Lippi-Green, 1997). When pressed for the business justification of the policy each business stated that an English Only policy would increase the (monolingual) employees’ morale as well as allow management to supervise the (rude, discourteous, lazy, and untrustworthy) bilingual workers properly.
With convoluted logic, companies hire workers with limited English, then require them to speak English on the job. These employees are told that knowing English will broaden their horizons and increase their employment potential. So what about those English speakers who are actually hired for their ability to speak another language? They fare as poorly, and there have been several cases where employees who were hired for their bilingual abilities were instructed that English was the mandatory language of the workplace when they were not interacting directly with a customer.

METHODOLOGY

Using Lexis-Nexis, all published judicial opinions at the state and federal levels involving English Only were searched, and I considered only those cases in which the plaintiff charged their employer had a formal or informal English Only policy. Cases where non-English speakers were precluded from positions where the English language was a job requirement were not included (Vasquez v. McAllen) nor were cases involving English language testing of employees (Rivera v. Nibco) or conversely, testing employees in Spanish (Smothers v. Benitez). Additionally, cases based on accent discrimination (Fragante v. City and County of Honolulu, Carino v. University of Oklahoma Board of Regents) were not included, nor were cases in which the courts dismissed claims of an English Only policy with so little discussion as to provide no benefit to this paper (Aguilar v. St. Anthony Hospital, Olivarez v. Centura Health, Marquez v. Baker Process). I also reviewed law review articles and legal and human resource bulletins for cases that may not have come up during the direct search of the opinions, while national and local newspaper reports provided additional background on the cases. Several articles indicated that suits had been filed at the district court level, but since they were settled before an opinion was issued, little information was available on them and they were not included in this study. Published opinions and dissents from both district and circuit courts ranged in length from two to 18 pages, with an average of length of eight pages. After the bulk of the research had been done, del Valle (2003) was published, providing a comprehensive analysis of language rights and the law. Written by a civil rights lawyer, Language rights and the law in the United States: Finding our voices provides important analysis of many language issues, including citizenship, bilingual education, litigation, and commerce. In addition, del Valle has a chapter on language rights in the workplace, which includes analysis of the EEOC Guidelines and the legal precedents established in key cases. While areas of her chapter and my paper may overlap, her work is primarily a legal analysis, while this paper utilizes an applied linguistics approach, and as such is able to address the language ideologies and myths revealed through court cases involving English Only workplace policies.
Although all attempts were made to be exhaustive, not all cases involving English Only workplace policies may be included. Further, the actual trial transcripts were not available, and therefore the judges writing the opinions and dissents played a large gatekeeping role in what evidence was available. Only the parts of the depositions and admitted evidence that the courts felt were important enough to include in their opinions were made available. This informational bias is certainly limiting. Additionally, some circuits do not publish all opinions, as in the case of Synchro-Start, where 29 F. Supp. 2d 911 is published, but 914 is not, though it is cited in the Premier Operator decision. Further studies using the court transcripts directly would broaden the spectrum of information and perhaps provide new insight into the myths held about language use in the workplace.
The next section presents analytical summaries of all the cases in which the legality of English Only workplace policies were disputed by employees. These summaries will highlight the court-sanctioned language discrimination occurring in U.S. workplaces, as well as the ideologies both the businesses and judicial system rely on to determine their “non”discriminatory impact. Following the case summaries, I will discuss underlying myths about language use, and explore how a society, which claims to value individuality and independence, can simultaneously denigrate its members because of their chosen language.