From the Daily Labor Report:

June 28, 2007

Appropriations

The Senate Appropriations Committee June 28 approved a bill that would raise the Equal Employment Opportunity Commission's fiscal 2008 budget to $378 million--$50 million more than the administration had requested--but also adopted an amendment to curb commission lawsuits challenging employers' English-only rules.

By a 28-1 vote, the full committee approved a $54.6 billion spending measure (bill number not yet available) that covers the departments of Justice and Commerce, the National Science Foundation, and several independent federal agencies, including EEOC and the U.S. Commission on Civil Rights. Sen. Sam Brownback (R-Kan.) cast the only vote against the bill, although Sen. Thad Cochran (R-Miss.), the committee's ranking Republican, expressed concern President Bush could veto the measure because it exceeds the White House's fiscal 2008 budget requests for the covered departments and agencies by $3.2 billion.

The spending provisions for EEOC and the civil rights commission, which would receive $9 million for fiscal 2008, are the same as those in the bill cleared by the Appropriations Subcommittee on Justice, Commerce, Science, and Related Agencies June 26 (123 DLR A-11, 6/27/07 ).

In a June 28 statement, subcommittee Chairwoman Barbara A. Mikulski (D-Md.) said the additional funding is needed to attack EEOC's case backlog, particularly since the commission has lost 575 enforcement personnel since 2001. She added, however, that the bill requires the General Accountability Office (GAO) to review federal programs on a regular basis to prevent cost overruns and mismanagement, including EEOC's contracting out of its national call center to a private entity.

"In the past, the EEOC has ignored the intent of Congress. It has compromised the important mission of enforcing our civil rights laws," Mikulski said. "This committee must ensure hardworking taxpayers' dollars are being well-spent and that the EEOC is not wasting resources or undermining civil rights protection. I look forward to working with the new EEOC leadership to implement the reforms necessary to get the agency back on track."

The Bush administration has requested approximately $328 million for EEOC in fiscal 2008, about $5 million above the $323 million the commission received for fiscal 2007. A House appropriations subcommittee June 11 approved a budget increase for EEOC $5 million above the administration's request. The full House Appropriations Committee is expected to act on EEOC's budget following Congress's Fourth of July recess.

Alexander Amendment Adopted

By a 15-14 vote, the Senate Appropriations Committee approved an amendment offered by Sen. Lamar Alexander (R-Tenn.) to prevent EEOC from filing future lawsuits under Title VII of the 1964 Civil Rights Act challenging employers' requirements that their workers speak English in the workplace.

At a May 3 subcommittee hearing, Alexander expressed his displeasure with a pending EEOC suit against a Salvation Army thrift store that had fired two Hispanic employees for failing to adhere to the employer's rule that only English should be spoken (86 DLR A-8, 5/4/07 ). EEOC alleged that the Salvation Army had engaged in national origin discrimination by firing the two workers when they had no contact with the public and the employer lacked a business reason to compel them to speak only English at work.

At the June 28 committee markup, Alexander said he believes it is a "misuse" of Title VII for EEOC to sue private employers that require employees to speak English. Alexander emphasized that a common language is one of the few common denominators that unites Americans of all national origins. He added that with a backlog projected to reach 56,000 charges in 2008, EEOC should not be spending its resources to challenge workplace English-only rules. "I believe this is a misuse of civil rights law, undermines our common language, and undermines our unity," Alexander said.

Opposing the amendment, Sen. Mikulski cautioned against "legislating through appropriations" and said the committee should not be dictating which cases EEOC chooses to litigate. "That's a very slippery slope," she said. Mikulski added that under EEOC's interpretation of existing law, employers can enforce English-only rules when they are necessary for the "safe and efficient operation of the business."

Mikulski warned that an "unintended consequence" of passing the Alexander amendment would be to allow "unscrupulous employers" to use English-only rules as a "proxy" for national origin bias. The Alexander amendment "takes us backward" in the enforcement of civil rights laws, Mikulski said.

Supporting the Alexander amendment, Sen. Richard C. Shelby (R-Ala.) remarked that if EEOC went after the nonprofit Salvation Army for requiring its workers to speak English, "they are going to do it to a lot of people all over this country." If English-only rules are discouraged, Shelby said, "we're going to Balkanize this country if we're not careful."

Sen. Pete Domenici (R-N.M.) said that in his state, about 39 percent of the population is Hispanic. He asked whether employees would be given sufficient time to learn English before being disciplined or fired for not speaking the language.

Alexander replied that in the Salvation Army case, the employer gave employees a one-year grace period to learn English. Alexander added that his amendment would not prevent individual plaintiffs from challenging English-only rules in private Title VII suits or bar the Justice Department from prosecuting "egregious" cases of alleged national origin discrimination.

The amendment "simply says EEOC--the government--doesn't equate English-only rules with national origin discrimination," Alexander said.

The committee passed the Alexander amendment by a single vote, with Sens. Mary Landrieu (D-La.), Ben Nelson (D-Neb.), and Robert Byrd (D-W.Va.) joining most of the panel's Republicans in voting for the proposal. Sens. Arlen Specter (R-Pa.) and Domenici cast the only GOP votes against the amendment.

"This is America, and in America we speak English," Alexander said in a statement following the vote. "The Senate has declared English our national language, and requiring it in the workplace is not discrimination--it is common sense. It's ridiculous that employers from the shoe shop to Wal-Mart to 911 emergency callers need to be worried that they'll be sued if they require their workers to communicate in our common language."

The Alexander amendment provides that none of the funds in the bill "shall be used to initiate or participate in a civil action" by or on behalf of EEOC "against an entity on the grounds that the entity requires an employee to speak English while engaged in work."