Fresno Workers Face Language Discrimination
In the summer of 1998, 23 Latina and Southeast Asian women who worked at a manufacturing plant in Fresno, California, were told that they would be the first to be fired if they were unable to score 100% on a test of their English language skills. This was even though each of them had performed their jobs well for years, and despite the fact that their work—routine and simple in nature—simply did not require them to have a mastery of English. And as would have been obvious to their employer, Nibco Inc., none of these women were able to achieve a perfect score. So Nibco terminated them before everyone else at the plant—even before far less experienced workers. By contrast, all of the Caucasian workers at the plant were able to pass the test, since Nibco had given them “cheat sheets” that were only in English.
Nibco’s homemade English test had nothing to do with the jobs people actually performed at the plant. Only immigrants of color lost their jobs because of it. So, in 1999 LAS–ELC brought a civil rights lawsuit in U.S. District Court, charging that Nibco had discriminated against the 23 women on the basis of their language and national origin, in violation of Title VII of the Civil Rights Act of 1964.
The Rivera v. Nibco litigation has been extraordinarily hard-fought. Indeed, four years of the case had to be spent defending against Nibco’’s ultimately unsuccessful efforts to discover the immigration status of the Rivera plaintiffs, despite its total irrelevance to the issue of discrimination. Noting the widespread use of similar tactics by employers to discourage immigrant workers from bringing valid claims to enforce their civil rights, the U.S. Court of Appeals for the Ninth Circuit in 2004 issued a landmark opinion—since cited by over 80 federal courts and hundreds of additional legal authorities—which held that the chilling and intimidating effect of such inquiries outweighed any conceivable legitimate purposes they might have. The U.S. Supreme Court refused to hear Nibco’’s appeal from this appellate ruling in 2005.
Rivera v. Nibco went to trial before a federal jury in Fresno in October 2008, more than nine years after the case was filed. Over the course of seven weeks, the Rivera plaintiffs presented substantial evidence, including from experts in linguistics, corporate management, and workplace safety, that Nibco’s English test had nothing to do with the workers’ job duties, and that it served only to discriminate against them because of their national origin. At the conclusion of the trial, the overwhelmingly Caucasian ten-member jury returned a verdict in Nibco’s favor. On March 29, 2010, however, the U.S. Court of Appeals for the Ninth Circuit reversed the jury’s verdict and ordered that the Rivera plaintiffs be given a new trial. The Ninth Circuit’s order was based on its determination that, during the jury selection phase, Nibco had used its “peremptory” juror strikes to discriminatorily remove at least one Latina prospective juror from the juror on account of her ethnicity—a violation of the United States Constitution’s guarantee of equal protection.
LAS–ELC and its clients are currently awaiting further orders of the district court regarding the retrial of this case.