Layoffs of Non-English Speakers May Be Bias, Court Says

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By Kevin McGowan

May 6 — A plastics manufacturer may have violated federal anti-discrimination law by terminating Hmong and Hispanic production workers because they didn't speak or read English, a federal district court in Wisconsin ruled.

The Equal Employment Opportunity Commission alleged Wisconsin Plastics Inc. engaged in race and national origin discrimination by laying off 28 workers of Asian descent and three Hispanic workers while simultaneously hiring a new group of mostly white, English-speaking production workers.

The company admitted English-language skills weren't required for the production operator job but argued its use of that criterion for layoffs didn't violate Title VII of the 1964 Civil Rights Act.

This situation differs from “English-only” cases in which an employer asserts such language skills are necessary for job performance, said Rebecca Salawdeh, an attorney representing some of the terminated workers. Rather, it resembles cases in which an employer discriminates because of a worker's accent or other language characteristics, she told Bloomberg BNA May 6. Employers discriminating on those grounds may be engaged in unlawful race or national origin bias, she said.

Whether an employer's preference for English-speaking employees constitutes a legitimate, nondiscriminatory reason for termination is a factual question turning on the case's “particular circumstances,” the court said.

Wisconsin Plastics hasn't provided “a substantial justification” for preferring English speakers in production jobs, so it can't conclusively show that criterion was a legitimate, non-discriminatory reason, Judge William C. Griesbach wrote.

A reasonable jury also could find the company's language-based reason was a pretext for race and national origin bias, the court said.

Company Denies Bias Allegations

In a May 6 statement, a company spokesman said Wisconsin Plastics is disappointed the court didn't dismiss the EEOC's lawsuit.

But the court's ruling is “only preliminary,” and a jury now will have an opportunity to decide the discrimination issue, said Bruce Wendt, the company's vice president of operations in Green Bay, Wis.

The EEOC's claims are “completely without legal or factual merit,” and Wisconsin Plastics looks forward to proving that at trial, Wendt said in the statement.

Workplace's Ethnic Balance Flipped

The EEOC and the terminated workers who intervened as plaintiffs showed Wisconsin Plastics was hiring new production workers at the same time it was laying off the Asian and Hispanic employees, the court said.

During the relevant period, Wisconsin Plastics hired 88 new employees, 62 of whom are Caucasian, according to the court. The net effect was to “flip the ethnic profile of the workplace,” Griesbach wrote.

Workers of Asian descent, who previously made up a “significant majority” of the assembly workers, now account for less than 50 percent, the court said. Meanwhile, the proportion of white workers in the assembly jobs rose from 14 percent to 43 percent, the court said.

“A reasonable jury, faced with this evidence, might draw the conclusion that the company was reconstituting itself by race or national origin—particularly if that jury heard that language ability ([Wisconsin Plastics'] stated reason) did not affect job performance,” the court said.

Shifting Reasons for Layoffs

The company gave “shifting reasons” for the layoffs, Salawdeh said.

Wisconsin Plastics initially said the workers were terminated because of performance issues, then asserted it was downsizing, she said.

But after the EEOC and intervening plaintiffs showed the workers had received favorable performance reviews, the company backed off those explanations, Salawdeh said.

It wasn't until a top executive was deposed and Wisconsin Plastics moved for summary judgment that the company said it was the English-language issue that drove the layoffs, she said.

The 11 plaintiff-intervenors worked for various tenures at the Green Bay plant, ranging from one year to seven years before they were terminated, Salawdeh said. A “change in upper management” preceded the layoffs, she said.

The plaintiff-intervenors are seeking more discovery on damages issues, but a trial presumably will occur once discovery is completed, Salawdeh said.

EEOC attorneys in Milwaukee represented the agency. Salawdeh Law Office LLC in Wauwatosa, Wis., and Gillick Wicht Gillick & Graf in Milwaukee represented the plaintiff-intervenors. Conway Olejiniczak & Jerry SC in Green Bay represented Wisconsin Plastics.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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