Sunday, December 18, 2005

Facts and Thoughts on "For Service Speak English"

Fellow S.O.B Alliance members BizzyBlog and NixGuy have contributed to the discussion on the Ohio Civil Rights Commission's (OCRC) finding of probable cause of discrimination by a 63-year-old Mason tavern owner, Mr. Ullum, for posting a sign that says: “For Service Speak English.’’

(Other coverage includes the Enquirer article on the ruling, The Kirk and Steve Fritsch and John Ingram of The Blue Chip Review)

Laid out here are facts and thoughts to contribute to what is a very important, potentially precedent setting, issue in our backyard:

Facts:

  • Regardless of the Free Speech arguments (dealt with later), when taken at face value, the sign is an 'instructional' sign to potential patrons of Mr. Ullum's establishment. To utilize the services of the establishment, a patron is instructed to 'Speak English'.

  • Only patrons that understand English will be able to understand the sign's instructions, unless Mr. Ullum is expecting non-English speaking potential patrons to have a translator (person or dictionary) available prior to entering his establishment to properly act on the instructions.

  • The instructions, communicated in English, are what triggered a charge of discrimination by Housing Opportunities Made Equal (HOME) on July 11, 2005, as per the finding. Specifically they alleged that:
    ...the Respondent, Pleasure Inn, Inc., refuses service to individuals based on national origin.
  • The State of Ohio, via the Ohio Revised Code (R.C.), provides guidelines for how businesses conduct business in Ohio. As per the finding, the Pleasure Inn:
    ...is a "place of public accommodation" as defined by Ohio Revised Code Section 4112.01(A)(9).
  • The OCRC specifically referred to R.C. 4112.02 (G) in making their judgment. That provision states:
    The Ohio Civil Right Acts makes it unlawful discriminiatory practice -

    For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, national origin, disability, age, or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.
  • The Commission provided the following rationale for their decision:
    ...The primary language of an individual is often an essential national origin characteristic. The enforcement of an English-only rule requiring an individual in a place of publich accommodation to speak English instead of their primary language denies them full emjoyment of the privileges and service for reasons not applicable alike to all persons regardless of national origin.

    Put differently, while English speaking patrons enjoy the privilege of conversing in their primary language while at the Pleasure Inn, the same privilege is not extended to non-English speaking patrons or patrons whose primary language is not English. As a result, these individuls are denied the full enjoyment of the privileges and services of this place of public accommodation.

    Taken together, the English-only rule applied by the Pleasure Inn serves no purpose other than to discriminate against non-English speaking individuals. The enforcement of this rule perpetuates an atmosphere of exclusion and imposes a badge of inferiority upon the non-English speaking community. This type of "second class citizenship" treatment is precisely the type of egregious conduct that the Ohio Civil Rights Act is aimed at eliminating.
  • The Commission's decision states:
    For all the reasons set forth above, the Ohio Civil Rights Commission determines that there is PROBABLE CAUSE to believe that Respondent engaged in an unlawful discriminatory practice under Ohio Revised Code Section 4112.02(G). The Commission hereby orders that this matter be scheduled for CONCILIATION (J-1).
Thoughts:

  • The Commission findings state, though not in Mr. Ullum's own words, that Mr. Ullum:
    ...believes that he has a right to post in his window whatever he pleases. He insists that he does not discriminate against anyone, however, he does believe that immigrants who live in this country should learn to speak English.
    Mr. Ullum is wrong in saying, if accurately potrayed in the finding, that he has a right to post whatever he pleases. The Ohio Revised Code 4112.02 (G) says as much.

    On the other hand, he has every right to believe that immigrants who live in this country should learn to speak English. A position Porkopolis strongly supports.

    So does the sign represent innocuous instructions for patrons, a political/free speech statement, or a statement that is discriminatory, as HOME alleges, and inappropriate for a place of public accommodation; or any combination of these possible representations?

  • Let's look first at the innocuous instructions argument:

    The instructions are written in English; "For Service Speak English". Just as one can argue that on it's face the instructions appear to be just that, one can also argue that they are not instructions at all. The instructions presuppose an understanding of English to act upon them. This fact alone argues strongly against the case that the sign represents innocuous instructions on how a patron goes about receiving service at the establishment

  • Let's now look a the the political/free speech argument:

    Mr. Ullum, according to the Commission's statement, states that he does not discriminate against anyone. According to the Cincinnati Enquirer article, a Commisssion member, Charlie Winburn, tried to determine if in fact overt discrimination had been documented.
    “Is there a violation of the law?’’ he said. “Where is your proof or evidence?’’

    Elizabeth Brown, executive director of Cincinnati-based HOME – Housing Opportunities Made Equal – said the sign speaks for itself. Some HOME representatives stopped by once at noon but were told the inn didn’t serve lunch, she said. She didn’t think it was necessary to gather additional evidence.“I really think you all failed in this case,’’ Winburn said. “I think you missed an opportunity. HOME missed an opportunity … We have no past practice of discrimination. We have no evidence of it.’’
  • Considering this, it's reasonable to assume that Mr. Ullum was attempting a clumsy poltical statement. But again, a clumsy political statement that only English speaking/reading individuals and/or patrons passing by his establishment would understand.

    The Commission did not estabish the allegation by HOME that service was being refused based on national origin. However, the Commission does have jusrisdiction over potentially discrminatory actions; particularly as they relate to public accommodations.


  • Finally, let's address the possibility that the sign is discriminatory and inappropriate for a place of public accommodation.

    To provide some context, let's consider a sign from our nation's past that few would argue represented overt discrmination:



    One can argue that the sign is merely informational. The word 'WHITE' describes the very color of the paint in which the word is written in; white. An indvidual not familar with U.S. history could look at the sign and start scratching his head saying, "I understand the 'Water' part, the 'Soup' part, but what's going on with the 'WHITE' part?

    Those of us familiar with U.S. history quickly know what's going on with the 'W-H-I-T-E' word because we can evaluate it in the context of history.

    These five letters represented both a political and a discriminatory philosophy of of our past. Political because many Americans at one time wanted to use the political process, via laws, to maintain segregation and discriminatory because of the denial of service, the drinking of water in the case of the picture, for non-'WHITE' patrons.

    Clearly a sign's message can be both political speech and discrminatory speech. One message does not exlude the other; they can coexist on the exact same sign.

    Similarly, Mr. Ullum's sign can serve two purposes, even if his intentions are purely political. Particularly when they are considered in the context of public accommodations.

    Having established that the "For Service Speak English" sign does not serve as an instructional sign to non-English speaking/reading patrons, it is clearly a sign for English reading/speaking readers; be they patrons or just members of the community.

    In light of our history (remember, our history is the very reason why we have a Civil Rights Commission to begin with) the sign can be interpreted by English speaking/reading readers in at least two ways: politically (Free Speech) and discriminatory.

    Now, one can argue that Mr. Ullum is not responsible for any misinterpretations of his Free Speech. But, as an individual who runs a licensed public accommodation, he does have a responsibility for the reasonable misinterpretations of his political speech and his 'instructions'. And reason is what is being used here to provide historical context for the potential misinterpretations.

    The Commission overreached in finding that the sign "serves no purpose other than to discriminate" because it also serves as poltical speech. Acknowledging this is intellectual honesty. The Commission has no jurisdicition over political speech.

    However the sign does create "an atmosphere of exclusion", for which the Commission does have jurisdiction over; particularly with public accommodations.
    The sign communicates to the community that service will be provided to those that "Speak English". Moreover, it communicates that only to the English speaking/reading members of the community.

    The Commission overreached again in stating that the sign controlled the speech of individuals amongst themselves once inside the establishment. No evidence was provided for that assertion.

    The Commissions concluded that Mr. Ullum,
    ...engaged in unlawful discriminatory practice...

    Perhaps, considering that concerns were expressed to Mr. Ullum about possible interpretations of his sign. But someone at the Commission should also have taken the time to explain to Mr. Ullum his unique responsibilities:

    * To contribute to the political process by reasonable means;

    * And to do so in a manner in keeping with his responsibility as a proprietor of a place of public accommodation.

    The finding should have been based on the potential for creating an environment for discrimination rather than the actual discrimination which was not found.

    Here's more context to consider:

    Just like the right to yell "Fire!" is overruled when no fire exists in a crowded theater, Mr. Ullum's right to comment on immigrant assimilation policies is trumped by the community's larger right to insure that public accommodations are accessible to everyone free of an aura of discrimination, overt or misintentioned.

The 'English-only' for official Ohio government-based communications is another political issue which is destined for more discussion and Porkopolis supports this movement as long as it done in the spirit of assimilating and welcoming legal immigrants into Ohio.

10 Comments:

Blogger NixGuy said...

However the sign does create "an atmosphere of exclusion", for which the Commission does have jurisdiction over. The sign communicates to the community that service will be provided to those that "speak English". Moreover, it communicates that only to the English speaking/reading members of the community.

I respectfully disagree. The commission most emphatically does not have jurisdiction. Discrimination based on language is not defined in 4112.02(G). Therefore mr. Ullum is free to discriminate by language as long as he does not discriminate by national origin, race, etc. This is true of all small businesses and imagine the hoo-raw if this was not true! Any one could sue any business if they did not provide service in the language of the customers choice. Clearly discrimination based on language is legal.

Mr. Ullum's sign is both political speech and protected, but is also discrimination that is legal according to the laws on the books.

December 18, 2005 at 7:43 PM  
Blogger Porkopolis said...

Mr. Ullum is not being required to have a multi-lingual staff and provide service in multiple languages. Nobody has even suggested that for small businesses. You will find me leading the charge against any such effort.

If a patron comes in that can't communicate in English, a transaction will simply not occur...Pure and simple. The patron will go away and hopefully learn from the experience and sign-up for English classes or get someone to order on his/her behalf.

On the other hand, some businesses will see the ability to offer services in non-English as an opportunity. Though I feel this hampers the assimilation process, it's not right to dictate to private businesses what languages they should transact in.

It is right to tell businesses that they are responsible for creating a non-discriminatory environment.

The act of not being able to communicate with a non-English speaking patron is not discriminatory.

The act of advertising to only the English speaking/reading patrons and the community that the establishment discrminates "based on language" is, well...discriminatory and the greater community has a right to ask that political speech yield to public accommadation, non-discriminatory standards.

December 18, 2005 at 10:19 PM  
Blogger NixGuy said...

The greater community has a right to ask that political speech yield to public accommadation, non-discriminatory standards.

But that's just it. There are no such standards when it comes to language. Taken at face value the sign is illegal.

Yes it's possible that someone might be offended by the sign, since that was the point of the sign in the first place, but there is no law against offending someone. Heck, I get offended by signs all the time :-)

December 19, 2005 at 4:37 AM  
Blogger NixGuy said...

er, replace illegal with legal

December 19, 2005 at 4:38 AM  
Blogger Porkopolis said...

You get no argument from me that the sign's message on face value can be considered political speech...I've stated as much.

But the context of public accommodation is key here, just like the context of a crowded theater transforms the word "Fire" or the context of an airport security checkpoint transforms the following words offered in jest: "Be careful with that suitcase, we don't want to accidentally set of the bomb in it".

Our society makes a number of provisions to reconcile 'free speech' rights with society's greater goals of respect for community rights.

Here's another example: One can strongly disagree with the President in political speech as long a that disagreement doesn't escalate to advocating assassination.

This is a case of conficting rights. The right to make a political statement and the right of the greater community to have public accommodations free of an exclusionary environment.

Some might argue that a sign that says something like "No Shoes, No Shirt, No Service" is equally exclusionary. No quite, the Dept. of Health Services would back up that exclusion.

December 19, 2005 at 10:21 AM  
Anonymous Anonymous said...

I'm with Nix that discrimination based on language is not covered, and for very good reason: If it was, any establishment that failed to serve someone who doesn't speak English, or taken to an extreme doesn't speak a language known by some employee at the establishment, could be held to discriminate. Your staff could know English, Spanish, French, and Japanese, and still be held to be discriminating if someone walked and only spoke Portuguese and couldn't be served.

Even if I buy Porkopolis's discrimination angle, I say it's LEGAL discrimination. There are any number of other forms of LEGAL discrimination. The law says which ones aren't legal, and the rest are.

Was it the most sennnnnnnnnsitive thing for Mr. Ullum to do? No. Is someone entitled to say "I won't patronize a place that displays a sign like that?" Sure. Should someone be able to run to the Thought Police and say "I don't like that sign. Make them take it down" (which BTW, even THAT hasn't happened, as there have been no complaints)? No, and the minute that happens, I'm with Mr. Ullum, regardless of my opinion of the sign itself.

Tom
BizzyBlog.com

December 19, 2005 at 10:44 AM  
Blogger Porkopolis said...

Tom:

No one is telling Mr. Ullum in what language to transact business or have they accused him of discrimination for transacting business only in English.

He is being accused of creating an exclusionary public accommodation in a community (Ohio) that prides itself on inclusionary public accommodations.

The sign in isolation, on a tee-shirt, on a bill board would definetly constitute political speech in my judgment.

The context of a public accommodation and our collective history transforms the same sign to an exclusionary message.

Here's another example of message transformation based on context.

"Men Only" is appropriate for a bathroom facility, but "Men Only" is not appropriate for public restaurant.

December 19, 2005 at 11:11 AM  
Blogger Porkopolis said...

Here's another argument that recently came to me:

Is Mr. Ullum providing the "For Service Speak English" 'instructions' or is The Pleasure Inn, Inc. providing the 'instructions'.

What the difference? One would be political speech, the other would be commerical, public accommodation speech.

The Supreme Court has made a distinction between individual speech and commercial speech.

December 19, 2005 at 12:50 PM  
Anonymous Anonymous said...

I think the "public accommodation" line of reasoning doesn't fly, and even if it did, it needs a complaint from a citizen to generate that avenue of prosecution/persecution, not a "complaint" from someone on a fishing expedition from HOME, a government-funded agency (correct me if I'm wrong), pretending that she's there to protect our sensibilities.

Tom
BizzyBlog.com

December 19, 2005 at 1:22 PM  
Blogger Porkopolis said...

Any member of the Ohio community (public) that wants to maintain and protect the inclusionary nature of public accommodations would have standing in bringing a complaint, not just those directly discriminated against.

Even those not directly discrminated against have their community devalued if a discrminatory policy were allowed to exist.

And just because anyone can bring a complaint, doesn't mean every complaint has merit. The facts of the case would have to back up the complaint.

December 20, 2005 at 8:43 PM  

Post a Comment

<< Home