Seyfarth Synopsis: The EEOC has filed a class action against an employer on behalf of “non-Hispanic job applicants,” alleging that the employer’s practice of only hiring Spanish-speaking applicants, and policy of using predominantly word-of-mouth recruiting discriminated against non-Hispanic applicants.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed a complaint against a Texas-area manufacturing employer, alleging that the employer discriminated against non-Hispanic applicants.  The complaint was filed on behalf of the Charging Party, Freddie Foster, and a class of “non-Hispanic applicants and job seekers who were adversely affected by such practices.”

The EEOC is claiming that the employer has a “pattern  or  practice  of  unlawfully  failing  to  hire  and/or  to  recruit  non-Hispanic applicants and job seekers,” which the agency claims is discriminatory on the basis of race and/or national origin.  Additionally, the employer’s purported preference for Spanish-speaking applicants, and policy of using predominantly word-of-mouth recruiting has an alleged disparate impact on non-Hispanic applicants and job speakers.

As evidence of the employer’s discriminatory animus, the EEOC’s complaint alleged that the “defendant refused to provide Foster with an application after he responded to a sign posted by defendant advertising for laborer positions.”  Further, “Foster was told by defendant he was being denied the application because he did not speak Spanish.”  According to the EEOC’s senior trial attorney in charge of the case, Connie Gatlin, “[b]y refusing to permit job seekers who do not speak Spanish to even apply for a position, without a valid, justifiable reason for doing so, an employer engages in discriminatory practices that violate Title VII.”

Employer Outlook

The EEOC’s case is just getting started, so it remains to be seen whether there is any truth behind the EEOC’s allegations.  Regardless, employers should take note that the EEOC brought an enforcement action against an employer for what seems like “reverse discrimination.”  Alternatively, the EEOC has seemingly targeted an employer for discriminating against members of a dominant or majority group in favor of members of a minority or historically marginalized group.

This should be a timely reminder to employers that discrimination is always illegal when it is based on a protected category.  Further, even a facially neutral practice or policy can be discriminatory when it has a negative impact on a group of protected individuals.  Accordingly, employers should periodically review their hiring and employment practices to ensure that those practices are not outwardly discriminatory and do not have a discriminatory impact, even if it is in favor of a minority group.