A communication barrier at a Taco Bell drive-thru in Miami-Dade’s largely Hispanic Hialeah community has employment attorneys unpacking the legalities of language in the workplace.
The bad queso miscommunication took place Sept. 12, when Alexandria Montgomery pulled up at a Taco Bell drive-thru to order a late-night snack in English but was refused service by an employee who only understood Spanish.
“This is Hialeah. I’m sorry,” the fast-food employee reasoned in Español.
“But I want to order food,” Montgomery said.
Employment lawyer Jason M. Melton of Whittel & Melton in Spring Hill, near Tampa, said watching footage of the incident “hit home.”
“I used to live right near there,” Melton said. “So I was like, ‘Oh, I’ve had this happen.’”
Montgomery ultimately left without tacos, and the employee, who threatened to call the police, was later fired.
“I didn’t think that the argument was really necessary,” Melton said. “It seemed like there had to be an unwillingness from the customer to even try to order in bad Spanish in the middle of the night at a Taco Bell. Both sides gave up at some point, but it just seemed like the customer was more interested in winning the language war and was less interested in communicating.”
Watch Alexandria Montgomery’s footage of the exchange:
The ‘Language War’ at Work
That “language war” typically boils down to two claims in employment law: disparate treatment and disparate impact, according to Lindsey Wagner of Scott Wagner and Associates, who focuses exclusively on representing employees and employers in Florida and California.
“If somebody says, ‘I don’t like you because you speak a different language or have a heavy accent,’ that’s a disparate treatment claim,” Wagner said.
But a disparate impact claim arises when an employer “has a policy that seems neutral or non-discriminatory on its face, but it has a disparate impact on individuals of a certain protected trait, like national origin or race,” according to Wagner.
An English-only policy, for instance, can have a disparate impact.
“Even though the policy is meant well and there’s no discriminatory motive in those cases, motive really doesn’t matter as much as whether or not, statistically, you’re disproportionately etching out members of a certain protected trait or class,” Wagner said.
Though the official language of Florida is English, federal law dictates that the United States has no official language.
But that “official language” label likely doesn’t mean much, according to first amendment lawyer Daniel Aaronson of Fort Lauderdale’s Law Office of Benjamin, Aaronson, Edinger & Patanzo.
“You have the official bird, you have the official plant, so I’m not so sure the official language of the state of Florida is any more important than just a designation that that’s what the legislature, at some time, decided to say was the official language,” Aaronson said.
From Aaronson’s perspective, there was likely nothing constitutionally wrong with denying someone service “because they don’t speak a language that you like.”
The U.S. Constitution protects discrimination based on race and ethnicity in places of public accommodation, which can include fast-food restaurants.
“Just because somebody doesn’t speak a language or speaks a different language does not necessarily trigger the ethnicity,” Aaronson said.
News media and First Amendment attorney Edward L. Birk of Marks Gray in Jacksonville could relate to the incident from a nonlegal perspective.
“I remembered feeling like an outsider in some communities when I lived in Miami because I didn’t speak Spanish or even Spanglish. Usually, I uttered a few words in Spanish and that seemed to thaw any cold feelings,” Birk said.
In Birk’s view, if a person can’t communicate with a restaurant employee, “that person doesn’t have equal access, and the law requires the business to make some effort to eliminate such barriers.”
Though Birk said it’s difficult to gauge whether language alone would fit the bill, he argued that ”language is closely tied to national origin and ethnicity that it would qualify.”
Language as a pretext?
The line between discrimination and “it’s just business” hinges on whether an employer or employee has “a real good reason” for their actions, according to Alberto Naranjo of AN Law Firm in Miami Lakes, who represents employees in all corners of employment law.
The Taco Bell employee, Naranjo said, could “potentially call someone like me.”
“But when it comes to a customer complaining about an employee and the company taking action upon that, it always makes it very difficult for the employee to say the company was trying to get rid of me because of discrimination,” Naranjo said.
For employment lawyer Melton, alarm bells ring when language appears to be used as an excuse.
“Language is often a convenient thing that defendants like to hide behind. ‘Oh, she had difficulty communicating with customers.’ But a lot of times it’s a pretext for something that’s illegal or inappropriate, like race or national origin. You might dig in a little more and you find out those people don’t even talk to customers,” Melton said.
Melton recalled a recent case where a company appeared to be hiring more Germans than any other nationality.
“There seemed to be this undercurrent of assuming that the Germans were basically smarter and better at everything. You see that in national origin cases, where people assume, ‘Let’s get rid of the Mexicans and hire the X.’ Those are pretty common,” Melton said.
Likewise, Wagner has represented employees with heavy Creole and Spanish accents, whose employers told them to take language lessons.
“If an employer says, ‘We cant understand these people, they need to go to English classes and we’ll pay for the English classes,’ it’s still not OK to do that,” Wagner said.
Michael Schiffrin of St. Denis & Davey in Miami said civil rights aren’t the main issue at play in the Taco Bell saga.
“Instead, it is an issue of whether an employer in a service industry can discipline or even terminate an employee for conduct to the public that is rude and unbecoming,” Schiffrin said.
In Schiffrin’s view, termination was justified — assuming the employment was on an at-will basis.
“Our city is a polyglot of nationalities and languages and we have to accommodate each other as best we can. Being rude and condescending is not the proper way of behavior. It impacts negatively on this employer’s business,” Schiffrin said.
According to the U.S. Department of Labor , it ”benefits from the substantial contributions of employees who are fluent in languages other than English.
Melton seconds that notion.
“Certainly, employers are allowed to use language skills as a basis for hiring, firing, promotion and all these sorts of things. I’ve put out advertisements looking for people who are bilingual,” Melton said.
According to Melton, if an employee’s inability to communicate with customers and coworkers could hinder the profitability of a business, there’s no legal obligation for a manager to bring them aboard.
“That should be protected. Businesses shouldn’t be forced to hire people who they can’t even communicate with themselves,” Melton said.
But based on the national origin cases Melton’s seen, he thinks there’s a problem.
“I do think that it is an issue that some Spanish-speaking people in our society face quite frequently,” he said. “And because it’s happening to people who don’t speak English, they probably don’t communicate it to other people who speak English, but I’m sure it goes on.”