Scott Ball / Rivard Report
Years before a lawsuit alleging a San Antonio resort imposed an “English-only” policy on employees made headlines, a local university paid out millions to settle a similar case.
The Equal Employment Opportunity Commission on Monday sued La Cantera Resort & Spa’s operator, citing allegations of racial discrimination and an English-only policy directed at Spanish-speaking employees.
In 2001, the University of Incarnate Word agreed to pay $2.4 million to settle racial discrimination claims in a suit filed by the EEOC. Of that sum, plaintiffs received $1 million, and the remainder was allocated to four-year scholarships for their family members.
In its lawsuit against Incarnate Word, the EEOC alleged that 18 Hispanic housekeepers were forbidden to speak Spanish and were verbally and physically abused because of their national origin. It was the largest known payout at the time for a lawsuit concerning an English-only rule in the workplace, according to a 2001 press release. The lawsuit was filed in 1999 by the EEOC’s San Antonio District Office.
But many employers still have English-only policies, said Joseph Fishkin, who teaches employment discrimination law at the University of Texas at Austin. Most legal challenges to such policies don’t prevail, he said.
“If the rule just says that employees should speak English in front of customers … if the rule has to do with customer interaction, then the employers usually win those cases,” Fishkin said.
In order for plaintiffs to win such a lawsuit, they have to either show the English-only rule applies broadly and includes employees’ break times or demonstrate a pattern of harassment, he explained.
“When you say harassment in the workplace, everyone thinks of sexual harassment,” Fishkin said. “But race-based harassment is treated the same under the law – it’s also illegal. If there is evidence that the EEOC can bring into court successfully that shows a judge that people were using racial slurs and otherwise harassing employees based on national origin, you almost don’t need the English-only rule. That’s the case right there – harassment.”
Employment discrimination cases can be tricky because proving bias – whether religious, gender, or racial – is difficult, local attorney Javier Maldonado said. Maldonado was a trial attorney for the EEOC’s lawsuit against Incarnate Word and now has a private practice in San Antonio.
“It requires, on the plaintiffs’ side, to discover evidence and have witnesses that are credible, that are consistent, that can be backed up by some of the statements or documentation from the defendant,” Maldonado said. “It is a bit like building a puzzle. The more evidence you add, the more pieces you add to buttress the allegations, the stronger the case is. It’s a lot of work.”
The university did not acknowledge wrongdoing in the 2001 settlement, but it agreed to establish an anti-harassment policy and complaint procedure and regularly train managers and supervisors on national origin discrimination and other harassment.
The lawsuit against La Cantera’s operator has a long way to go before it sees a trial court, and that’s if it survives a motion to dismiss from La Cantera, said Albert Kauffman, a professor at St. Mary’s University School of Law who teaches federal procedure. In most cases, the defendant will ask the judge to dismiss a lawsuit and argue the plaintiff has no legal basis to sue, he said.
“The EEOC would not have filed it if they did not have a good basis for it,” Kauffman said. “But it’s possible.”
Maldonado agreed that the EEOC filing the suit indicates “quite a bit of information” on the plaintiffs’ part.
“I suspect if the EEOC picked up the case, they did a good job of investigating,” he said.
As with any civil suit, the parties can opt to work out a settlement, as the University of Incarnate Word did in 2001.
Robert Harwin, regional attorney for the EEOC’s San Antonio District Office in 2001, said in the press release announcing Incarnate Word’s settlement that the university illegally combined harassment with an English-only policy.
“This settlement should put other employers on notice that the EEOC is committed to rooting out discrimination against low-wage earners, language minorities, and other groups most vulnerable to civil rights abuses,” Harwin stated in the release.
Nearly 20 years later, Maldonado said he’s not surprised to see another racial discrimination case so similar to Incarnate Word’s.
“We have made quite a lot of progress, but we still have a long way to go to eliminate racial discrimination in the workplace,” he said, “even in a majority Hispanic city.”