ALVIN B. RUBIN, Circuit Judge:
IT IS ORDERED that this court's opinion reported at 609 F.2d 156 (5th Cir. 1980) be withdrawn and the following is substituted:
Invoking Title VII, the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-2 [EEO Act], Hector Garcia, a native-born American of Mexican descent, challenges as discriminatory his employer's rule that prohibits employees engaged in sales work from speaking Spanish on the job. Because the group of employees Mr. Garcia sought to represent was not numerous enough to constitute a class, we affirm the trial court's denial of class action certification. We conclude that the "speak-only-English" rule, as it was applied to Mr. Garcia by his employer, does not discriminate on the basis of national origin. We therefore affirm the district court's judgment that Mr. Garcia's discharge for violating the rule was not unlawful.
Hector Garcia, who was twenty-four years of age at the time of trial, completed the first semester of the tenth grade in Texas public schools. He speaks both English and Spanish. His grandparents were immigrants from Mexico; he is native-born, but he has always spoken Spanish in his own household.
In 1975, he was employed as a salesman by Gloor Lumber and Supply, Inc., in Brownsville, Texas. His duties included stocking his department and keeping it in order, assisting other department salespersons and selling lumber, hardware and supplies. He had received compliments from management on his work and in May 1975 had received a bonus of $250. However, there also was evidence that Mr. Garcia was not a satisfactory employee, that management's compliments were bestowed as incentives to better performance when, on occasion, his work showed some improvement and that a bonus was awarded to all employees at year-end without regard to merit.
Gloor had a rule prohibiting employees from speaking Spanish on the job unless they were communicating with Spanish-speaking customers. Most of Gloor's employees were bilingual, but some who worked outside in the lumber yard did not speak English. The rule did not apply to those employees. It also did not apply to conversation during work breaks.
Mr. Garcia testified that, because Spanish is his primary language, he found the English-only rule difficult to follow. He testified that on June 10, 1975 he was asked a question by another Mexican-American employee about an item requested by a customer and he responded in Spanish that the article was not available. Alton Gloor, an officer and stockholder of Gloor, overheard the conversation. Thereafter Mr. Garcia was discharged.
Mr. Gloor testified, and the district court found as a fact, that Mr. Garcia's discharge was for a combination of deficiencies — failure to keep his inventory current, failure to replenish the stock on display from stored merchandise, failure to keep his area clean and failure to respond to numerous reprimands — as well as for violation of the English-only rule. The court also found that the English-only policy was not strictly enforced but that Mr. Garcia had violated it
In addition to offering this evidence to justify firing Mr. Garcia, Mr. Gloor testified that there were business reasons for the language policy: English-speaking customers objected to communications between employees that they could not understand; pamphlets and trade literature were in English and were not available in Spanish, so it was important for employees to be fluent in English apart from conversations with English-speaking customers; if employees who normally spoke Spanish off the job were required to speak English on the job at all times and not only when waiting on English-speaking customers, they would improve their English; and the rule would permit supervisors, who did not speak Spanish, better to oversee the work of subordinates. The district court found that these were valid business reasons and that they, rather than discrimination, were the motive for the rule.
An expert witness called by the plaintiff testified that the Spanish language is the most important aspect of ethnic identification for Mexican-Americans, and it is to them what skin color is to others. Consequently, Mr. Garcia contends, with support from the Equal Employment Opportunity Commission [EEOC], that the rule violates the EEO Act and the Civil Rights Acts, 42 U.S.C. §§ 1981 and 1985(c).
Of the eight salesmen employed by Gloor in 1975, seven were Hispanic, a matter perhaps of business necessity, because 75% of the population in its business area is of Hispanic background and many of Gloor's customers wish to be waited on by a salesman who speaks Spanish. Of its 39 employees, 31 were Hispanic, and a Hispanic sat on the Board of Directors. There is no contention that Gloor discriminated against Hispanic-Americans in any other way.
The narrow issue is whether the English-only rule as applied to Mr. Garcia imposed a discriminatory condition of employment.
Mr. Garcia properly complains that the court arrived at its denial of class certification by deciding that he had no case on the merits. The question of class certification is a procedural one, distinct from the merits of the action. Huff v. N. D. Cass Co., 5 Cir. 1973 (en banc), 485 F.2d 710; Miller v. Mackey International, Inc., 5 Cir. 1971, 452 F.2d 424, 427-28. Whether a class should be certified depends entirely on whether the proposal satisfies the requirements of Fed.R.Civ.P. 23. See generally 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil §§ 1759-1770 (1972).
However, the result reached by the trial judge was correct. A prerequisite for a class action is that the class be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "The raison d'etre of the class suit doctrine is necessity, which in turn depends upon the question of number." 3B Moore's Federal Practice ¶ 23.05, at 23-149 (2d ed. 1979). This depends on the facts of each case and no arbitrary rules have been established, 7 C. Wright and A. Miller, Federal Practice and Procedure: Civil, § 1762 (1972), nor indeed should be. The basic question is practicability of joinder, not number of interested persons per se. Practicability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion. See id.; 3B Moore's Federal Practice ¶ 23.05 (2d ed. 1979).
Only thirty-one persons, those Gloor employees who were Hispanic, were affected by the English-only rule. Their identity and addresses were readily ascertainable, and they all lived in a compact geographical area. The suggested class therefore failed to meet the elementary requirement that supports the whole theory of class actions — representation by one person of a group so numerous that joinder in one suit would be impracticable.
Although the trial judge concluded that Mr. Garcia was fired for a number of reasons,
Employer action does not violate Title VII merely because a reprobated reason plays some part in the employer's decision, see Rogers v. Equal Employment Opportunity Commission, D.C.Cir. 1977, 551 F.2d 456; yet the forbidden taint need not be the sole basis for the action in order to condemn it. The record would support a finding that Mr. Garcia's use of Spanish was a significant factor and, therefore, rather than remand for a determination by the trial court, we will assume for present purposes that it was. We turn then to the issue that appears to both parties and the several amici to be at the core of the case.
The EEO Act sought to assure equality of employment opportunity by making it unlawful for an employer "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
In interpreting the statute
Mr. Garcia argues that it is discriminatory to prohibit employees from speaking a foreign language on the basis of a thesis that, if an employee whose most familiar language is not English is denied the right to converse in that language, he is denied a privilege of employment enjoyed by employees most comfortable in English; this, necessarily, discriminates against him on the basis of national origin because national origin influences or determines his language preference. Whether or not this argument might have a tenable basis if made on behalf of all employees who are bilingual or if invoked against a rule that forbade all use of any language but English we need not consider. Mr. Garcia was fully bilingual. He chose deliberately to speak Spanish instead of English while actually at work. He was permitted to speak the language he preferred during work breaks.
No authority cited to us gives a person a right to speak any particular language while at work; unless imposed by statute, the rules of the workplace are made by
Let us assume that, as contended by Mr. Garcia, there was no genuine business need for the rule and that its adoption by Gloor was arbitrary. The EEO Act does not prohibit all arbitrary employment practices. It does not forbid employers to hire only persons born under a certain sign of the zodiac or persons having long hair or short hair or no hair at all.
Save for religion, the discriminations on which the Act focuses its laser of prohibition are those that are either beyond the victim's power to alter, see Willingham v. Macon Telegraph Publishing Co., 5 Cir. 1975, (en banc), 507 F.2d 1084 (employer's grooming code that required different hair lengths for males and females held not to constitute sex discrimination),
We do not denigrate the importance of a person's language of preference or other aspects of his national, ethnic or racial self-identification. Differences in language and other cultural attributes may not be used as a fulcrum for discrimination. However, the English-only rule, as applied by Gloor to Mr. Garcia, did not forbid cultural expression to persons for whom compliance with it might impose hardship. While Title VII forbids the imposition of burdensome terms and conditions of employment as well as those that produce an atmosphere of racial and ethnic oppression, see Rogers v. Equal Employment Opportunity Commission, 5 Cir. 1971, 454 F.2d 234, 238-39, cert. denied, 1972, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343, the evidence does not support a finding that the English-only rule had this effect on Mr. Garcia.
The EEO Act does not support an interpretation that equates the language an employee prefers to use with his national origin. To a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth. However, the language a person who is multi-lingual elects to speak at a particular time is by definition a matter of choice. No claim is made that Garcia and the other employees engaged in sales were unable to speak English. Indeed, it is conceded that all could do so and that this ability was an occupational qualification because of the requirement that they wait on customers who spoke only English or who used that language by choice. Nor are we confronted with a case where an employee inadvertently slipped into using a more familiar tongue.
The rule was confined to the work place and work hours. It did not apply to conversations during breaks or other employee free-time. There is no evidence that Gloor forbade speaking Spanish to discriminate in employment or that the effect of doing so was invidious to Hispanic Americans. We do not consider rules that turn on the language used in an employee's home, the one he chooses to speak when not at work or the tongue spoken by his parents or grandparents. In some circumstances, the ability to speak or the speaking of a language other than English might be equated with national origin, but this case concerns only a requirement that persons capable of speaking English do so while on duty.
Mr. Garcia and the EEOC would have us adopt a standard that the employer's business needs must be accomplished in the manner that appears to us to be the least restrictive. The statute does not give the judiciary such latitude in the absence of discrimination. Judges, who have neither business experience nor the problem of meeting the employees' payroll, do not have the power to preempt an employer's business judgment by imposing a solution that appears less restrictive. See Furnco Construction Corp. v. Waters, 1978, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957.
Having reached this point, it is unnecessary for us to consider the claims asserted under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(c). Section 1981, which originated in the Civil Rights Act of 1866, assures "all persons" the same rights "enjoyed by white citizens" in making and enforcing contracts and in exercising other described rights. "Section 1981 is a parallel remedy against discrimination which may derive its legal principles from Title VII." Blum v. Gulf Oil Corp., 5 Cir. 1979, 597 F.2d 936, 938. See Johnson v. Alexander, 8 Cir. 1978, 572 F.2d 1219, 1223 and n. 3, cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658. The facts here that preclude relief under Title VII also preclude a Section 1981 claim. See Blum v. Gulf Oil Corp., 5 Cir. 1979, 597 F.2d 936, 938.
Section 1985(c), which originated with the Civil Rights Act of 1871, gives a cause of action for damages to any person who is a victim of a conspiracy to deprive that person or a class of persons of equal protection of the laws or of equal privileges and immunities under the laws. Although the statute reaches purely private conspiracies, Griffin v. Breckenridge, 1971, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, because Mr. Garcia's claim rests on a violation of Title VII he may not invoke Section 1985(c). Great American Federal Savings & Loan Association v. Novotny, 1979, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957.
Some of Mr. Garcia's evidence was excluded by the trial judge: the investigative reports and determinations of the EEOC and the transcript of proceedings concerning Mr. Garcia's unemployment compensation claim conducted by the Texas Employment Commissioner's (TEC) Appeals Tribunal. If the exclusion of these was error, it was harmless, for, after weighing
Most of the battle about the additional evidence appears to have been fought on the question of whether they were or were not business records. The admissibility of such official documents under the Federal Rules of Evidence is not determined by business records rules standards but by Rule 803(8), which provides for the admission of reports of public agencies.
The district judge was, indeed, in error in refusing to admit the investigative report and determinations of the EEOC. See Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450; Smith v. Universal Services, Inc., 5 Cir. 1972, 454 F.2d 154, 157-58. That error was, as we have said, harmless. The rule would permit the introduction of the transcript of the TEC proceedings, which was transcribed by the secretary of Mr. Garcia's lawyer, only if it were properly authenticated. Fed.R.Evid. 901. The court's rejection of the unauthenticated transcript of the TEC hearing as independent evidence was proper.
Our opinion does not impress a judicial imprimatur on all employment rules that require an employee to use or forbid him from using a language spoken by him at home or by his forebears. We hold only that an employer's rule forbidding a bilingual employee to speak anything but English in public areas while on the job is not discrimination based on national origin as applied to a person who is fully capable of speaking English and chooses not to do so in deliberate disregard of his employer's rule. Even if we assume that the violation of the rule was a substantial factor leading to Mr. Garcia's discharge, we, therefore, affirm the district court's judgment that Mr. Garcia was neither discharged because of his national origin nor denied equal conditions of employment based on that factor; instead, he was discharged because, having the ability to comply with his employer's rule, he did not do so.
The judgment is AFFIRMED.
HATCHETT, Circuit Judge, concurs in the result.