Hunton Employment & Labor Perspectives

Last month, a court in the N.D. of California denied class certification to a group of Chipotle workers who alleged that the burrito chain maintained unlawful English-only workplaces in the state of California.  Guzman v. Chipotle Mexican Grill, Inc., Case No. 17-cv-02606 (N.D. Cal. Jan. 15, 2020).  The opinion is a textbook example of how a lack of uniform written policies can, in some instances, benefit employers defending pattern and practice lawsuits.  Separately, the case also provides occasion to review the EEOC’s stance on English-Only policies.

Plaintiffs’ Claims

Plaintiffs moved to certify a class of approximately “40,000 current and former hourly Chipotle employees of Hispanic and/or of Mexican national origin who worked at Chipotle restaurant locations in California.”  The plaintiffs claimed that Chipotle maintained two facially discriminatory policies:  1) an English only policy prohibiting employees from speaking Spanish in the workplace (“English-Only Policy”); and 2) a promotion policy requiring employees to meet certain undefined English language requirements in order to be promoted (“Promotion Policy”).

English-Only Policy

To provide evidence that Chipotle maintained an unlawful English-Only Policy, Plaintiffs proffered the anecdotal experiences of twelve individuals.  Noting that this sample represented just .03 % of the proposed class, the Court explained that this representation was not enough to justify class certification.  Citing U.S. Supreme Court precedent, the court explained that the required commonality for a class action may be established through “significant proof that an employer operated under a general policy of discrimination.”  Here, the diminutive number of anecdotes fell well short of this threshold.  Furthermore, the Court found inconsistencies among the declarants’ experiences, which rebutted any inference that Chipotle uniformly applied language policies in their California restaurants.  Some declarants testified that they were barred from speaking Spanish altogether while others said that they were allowed to speak Spanish amongst themselves.  Thus, even within the small sample size, there was evidence that individual managers were able to exercise discretion concerning each store’s language policies.  Accordingly, the court held that the plaintiffs could not satisfy Rule 23(a)’s commonality or typicality requirement, as each plaintiff’s case “would necessarily turn on individualized inquiries into the managers’ actions and decisions.”

Promotion Policy

As evidence of the unlawful Promotion Policy, Plaintiffs submitted written English-language instruction programs that Chipotle offered to employees.  Such training materials expressly stated that they were designed for “top performers whose only barrier to promotion is [their] need for English language skills.”  Although these language programs showed that Chipotle “required some level of English proficiency for some promotions,” the court held that such evidence was insufficient to conclude that there was a uniform promotion policy that applied to all class members.  To buttress this conclusion, the court found it significant that Chipotle did not provide managers with training or a framework against which to evaluate employees’ English proficiency, and there was “no written policy clarifying what level of English proficiency [was] required.”  Rather, “managers [were] empowered to determine what level of English proficiency is needed and how to test for that proficiency.”  On these facts, the court found commonality and typicality lacking from the proposed class.

Takeaways

In many respects, the Guzman decision is unsurprising.  Because there was no uniform written language policy that applied to all restaurants within the proposed class, Plaintiffs were forced to rely on anecdotal evidence to justify their request for class certification.  Such anecdotes revealed disparities between the plaintiffs’ claims and underscored the significance of managerial discretion, a common element in proposed class actions where certification is denied.

EEOC’s Stance on English Language Policies

 Although class certification analysis generally has some overlap with the merits of the underlying claims, courts usually keep such merits-based determinations out of their analysis and the Guzman court was no exception, asserting, “the Court does not minimize declarants experiences, nor does it opine on whether such conduct would violate California law.”

Nonetheless, the plaintiffs’ allegations can serve as a helpful reminder to employers of the EEOC’s stance on English-Only policies in the workplace:

• Generally, any policy mandating that employees speak only English in the workplace will violate Title VII unless the employer can show that the policy is justified by a business necessity;
• Such business necessity is context specific, but typical justifications should be limited to circumstances in which English is needed to promote safety or efficiency in the workplace;
• A rule requiring that employees only speak English at all times, even among themselves at lunch or break times, will rarely ever be justified.