Permissible Discrimination: The View From Congress

It’s okay to discriminate. So long as those you’re discriminating against are generally poor (that is, can’t afford to lose a job), native Spanish speakers, Mexican, and have the extreme gumption to speak anything but the king’s English when they are at work.

This is essentially what the U.S. Congress said this past week, as it continues to hold hostage the annual appropriation for the U.S. Equal Employment Opportunity Commission (EEOC) until it capitulates on the issue of litigating cases of employment discrimination based on national origin.

How is it, you might ask, that Congress can reasonably demand that the agency charged with being the legal watchdogs of workplace discrimination simply not do its job? Congress did, after all, write and pass the Civil Rights Act of 1964, Title VII of which prohibits employers from discriminating against employees on the basis of, among other things, one’s national origin.

The EEOC has long held the position that language issues are closely related to issues of national origin, whether the case in point is a matter of accent, language fluency, or an English-Only requirement. It is a position echoed by the Court in 1989 when a 9th circuit ruling declared that accent and national origin are “obviously inextricably intertwined," and require a "very searching look" in regard to employment decisions – in this case, on the linguistic basis of accent in particular (see Fragante v. City & County of Honolulu). We’ll return to the policy issue and distinctions surrounding English-Only litigation in a moment.

For the time being, however, let’s focus on the general and specific answers to this question about Congressional audacity in dictating what forms of workplace discrimination the EEOC can and cannot litigate. The general answer is that our current discourse surrounding immigration has become a myopic debate not about immigration per se, in either principle or practice, but about illegal immigration. This would not be as much a problem were it not for the fact that our discussion about illegal immigration is largely a racialized discourse, fueled by opinion leaders in the media whose “news reporting” has been channeling our entire surplus of racial intolerance, bigotry and fear among the American public into a misguided attack on Mexican immigrants living and working in the U.S.

In the year preceding the attacks, there were roughly 500 or so newspaper stories where the issue of illegal immigration as it relates to Mexico appears. That number fell to just under 300 in the year following the terrorist attacks of 9/11. In 2003 the number is 283, 329 the year following, and 539 the year after that. This number exploded to a whopping 1,535 in 2006.

At this height in 2006, a random search of newspaper reporting shows that the actual terms “illegal” and “immigration” are used in close proximity almost 50% of the time that the issue of immigration is discussed (surely the tenor of many of the others where the actual terms are not used is also focused on the issue of illegal immigration). Again, in 1996 (in a separate search), when the terms “illegal” and “immigration” are used together in the same paragraph in a news story, in 44 instances the story referred primarily to the Middle East. In 92 instances the subject was primarily Europe, about the same as the 94 instances where Canada was the focus of the discussion about illegal immigration. How many of the stories during the same time period focused on Mexico? 1, 744.

This is far from scientific evidence, but it suggests that the fear, paranoia, prejudice and hatred of people who are not “us” following the September 11 attacks was used to resurrect an old enemy, while at the same time beginning the fight against a new one. When it came to foreign policy, we took the opportunity to take the fight to the Muslim world; when it came to domestic policy, we took the opportunity to focus on a different “threat” – Mexicans – who ostensibly come to this country for the sole purpose of stealing our jobs, taking advantage of our liberal welfare benefits, perpetrating violent crimes, and, last but not least, corrupting our national identity by corrupting our language.

This is the general answer to why Congress seems hell bent on curbing English-Only litigation. The more specific answer is simpler. It comes down to a particular case of alleged national origin discrimination perpetrated by the Salvation Army, and a political pundit dressed in a newsman’s clothing – Lou Dobbs. When the EEOC announced back in April of this year that it filed suit against the charitable organization, no one was more incensed than CNN’s Lou Dobbs, who has become a veritable one-trick pony when it comes to news coverage/opinion-spewing on the issue of illegal immigration.

Upon hearing the news, Dobbs immediately responded in characteristic fashion. He “reported” the news with more than an air of sarcasm, misrepresented the facts of the case, blew the case out of proportion, challenged EEOC officials to a debate, and then claimed a moral victory when those officials did what is presumably common procedure – refuse to debate the details of a case that is currently in litigation.

First, Dobbs insinuated that the EEOC views any and every form of English-Only rule as discriminatory on the basis of national origin, therefore making it illegal under Title VII. The EEOC however has been quite clear that such policies are appropriate and legal, under certain circumstances, namely when there is a legitimate business reason for the policy – for example, in certain circumstances when an employee in a service industry is required as a function of their job to interact with English-speaking clientele.

The case against the Salvation Army, however, involved native Spanish speakers who worked as clothes sorters. They labored just fine with the Salvation Army for years, until the organization decided to enforce an old English-Only policy. In effect, the allegation by the EEOC is that national origin – expressed in the prohibition against speaking Spanish – has nothing to do with legitimate business reasons and everything to do with the negative sentiments of the employer about the employee’s country of origin.

Second, from Dobbs’s reporting of the story, one would think that this is the only form of discrimination the EEOC spends its time litigating. However, of the cases where the agency found a “reasonable cause” of discrimination, only 13% were cases of national origin discrimination, and it’s likely that of these, even fewer were claims of language or English-Only policy discrimination.

What Dobbs was equally incensed about was the fact that the alleged discrimination was being done by the Salvation Army – a “Christian” charity. For Dobbs, nothing better personifies the bigotry and fear he spews on a daily basis about godless and immoral illegal immigrants who threaten the moral sanctity and Christian values inherent in our national identity than the government going after a Christian charity for insisting its employees speak English.

It was this nationalistic and moralistic fervor that took hold of Republican members of congress (beginning with Lamar Alexander) eager to reassert the party’s position as the standard-bearer of traditional American (Christian) values, as well as some Democratic members of Congress fearful not so much of Mexican immigrants as they are of losing the next election.

This continuing fight in the Congress about prohibiting the pursuit of discrimination claims based on national origin is but one of the prominent expressions of how the contemporary discourse about immigration policy has gone awry. Framing the general discourse about immigration policy around a racialized threat to American national identity will certainly hamstring our representatives from upholding one of the supposed principles of this identity – equal opportunity and equal protection under the law.