Maldonado v. City of Altus, OK.

Plaintiffs are employees of the City of Altus, Oklahoma (City). They appeal the district court’s grant of summary judgment dismissing all their claims against the City, the City Administrator, and the Street Commissioner (collectively referred to as Defendants). All claims arise out of the City’s English-only policy for its employees. Asserting claims of both disparate-impact and disparate-treatment, Plaintiffs contend that the English-only policy discriminates against them on the basis of race and national origin in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000e. They also claim intentional discrimination under the Civil Rights Act of 1866, 42 U.S.C. § 1981. Finally, Plaintiffs bring claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, arguing that the policy deprives them of equal protection and freedom of speech. The Equal Employment Opportunity Commission (EEOC) and the American Civil Liberties Union of Oklahoma Foundation each filed amicus briefs in support of Plaintiffs. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand with respect to Plaintiffs’ claims against the City alleging disparate impact and disparate treatment under Title VII; intentional discrimination under § 1981; and violation of equal protection under 42 U.S.C. § 1983. We affirm summary judgment for Defendants on all other claims.

I. BACKGROUND

A. Factual Background

Plaintiffs’ claims stem from the City’s promulgation of an English-only policy. Approximately 29 City employees are Hispanic, the only significant national-origin minority group affected by the policy. All Plaintiffs are Hispanic and bilingual, each speaking fluent English and Spanish.

In the spring of 2002 the City’s Street Commissioner, Defendant Holmes Willis, received a complaint that because Street Department employees were speaking Spanish, other employees could not understand what was being said on the City radio. Willis informed the City’s Human Resources Director, Candy Richardson, of the complaint, and she advised Willis that he could direct his employees to speak only English when using the radio for City business.

Plaintiffs claim that Willis instead told the Street Department employees that they could not speak Spanish at work at all and informed them that the City would *1299soon implement an official English-only policy. On June 18, 2002, Plaintiff Tommy Sanchez wrote a letter to Ms. Richardson and the City Administrator, Defendant Michael Nettles, expressing concerns about the new Street Department English-only policy and the proposed citywide policy. Sanchez was particularly concerned that his subordinates, Plaintiffs Ruben Rios and Lloyd Lopez, had been told of a policy that he knew nothing about. Citing the City’s Personnel Policies and Procedures Manual, the letter informed Nettles that employees had not been given proper notice if this was a new administrative policy and questioned whether Willis and the City had followed proper procedures in implementing the new policy. Sanchez reported that Willis had told him that the reason Hispanics speak Spanish “is because [of] ... insecurities,” Ex. H, R. Vol. II at 521, and that Willis had suggested that he (Sanchez) “would feel uncomfortable if another race would speak their native language in front of [him],” id. The letter requested that “the City of Altus understand that we Hispanics are proud of our heritage and do not feel that our ability to communicate in a bilingual manner is a hindrance or an embarrassment. There has never been a time that because I spoke Spanish to another Spanish speaking individual, I was unable to perform our job duties and requirements.” Id. at 523. At the end of the letter Rios and Lopez signed a paragraph stating that “[t]he purpose of this correspondence is to serve as a discrimination complaint in accordance with the City of Altus Personnel Policies and Procedures Manual Section 102, in which we are requesting that an investigation be conducted into these charges and that a report be issue[d] within two weeks.” Id. Another employee (Leticia Sanchez) also complained orally to Richardson about Willis’s instructing employees not to speak Spanish in any circumstances during work hours.

In July 2002 the City promulgated the following official policy signed by Nettles:

To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity’s limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, in-*1300eluding a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.

Pis.’ Ex. L., R. Vol. II at 560-61 (emphasis added).

Defendants state three primary reasons for adopting the policy:

1) workers and supervisors could not understand what was being said over the City’s radios ...; 2) non-Spanish speaking employees, both before and after the adoption of the Policy, informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand because they did not know if their co-workers were speaking about them; and 3) there were safety concerns with a non-common language being used around heavy equipment.

City/Nettles Br. at 42. Although the district court observed “that there was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy,” Dist. Ct. Order at 6, R. Vol. Ill at 875, it noted that Willis had testified that at least one employee complained about the use of Spanish by his co-workers before implementation of the policy and other non-Spanish speaking employees subsequently made similar complaints. Those city officials who were deposed could recount no incidents of safety problems caused by the use of a language other than English, but the district court found that some Plaintiffs were aware “that employee safety was one reason for the adoption of the policy.” Id. at 7. The court also stated that “it does not seem necessary that the City await an accident before acting.” Id. at 18 n. 20.

Defendants offered evidence that the restrictions in the written policy were actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish. But Plaintiffs offered evidence that employees were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish speaker was present, even during breaks, lunch hours, and private telephone conversations. Plaintiff Lloyd Lopez stated in his deposition that “we were told that the only time we could speak Spanish is when two of us are in a break room by ourselves, and if anybody other than Hispanic comes in, we are to change our language.” R. Vol. II at 631. In addition he said, ‘We no longer can speak about anything in general in Spanish around anybody. Even if we were on the phone talking to our wives and we were having a private conversation with them and somebody happened to walk by, we were to change our language because it would offend whoever was walking by.” Id. Lopez understood, however, that the policy permitted him to speak Spanish if he was alone in a truck with another Spanish-speaking co-worker. Plaintiff Ruben Rios testified in his deposition that he similarly understood the policy to exclude the use of Spanish during breaks and the lunch hour if non-Hispanic co-workers were present. When asked specifically whether he understood that the policy allowed Spanish to be spoken between co-workers during lunch or other breaks, he stated that “[a]s long as there was another Hispanic person, we could speak in Spanish but away from other individuals, non-Hispanic people.” R. Vol. Ill at 805-06. And Plaintiff Tommy Sanchez testified that he was told that he could not speak Spanish at all, but added that Richardson explained to him that “[tjhat’s not the way [the City] meant it.” R. Vol. I at 127. The City has not disciplined anyone for violating the English-only policy.

*1301Plaintiffs allege that the policy created a hostile environment for Hispanic employees, causing them “fear and uncertainty in their employment,” R. Vol. II at 456-57, and subjecting them to racial and ethnic taunting. They contend “that the English-only rule created a hostile environment because it pervasively — every hour of every work day — burdened, threatened and demeaned the [Plaintiffs] because of their Hispanic origin.” Aplt. Opening Br. at 47. Plaintiffs each stated in their affidavits:

The English-only policy affects my work environment every day. It reminds me every day that I am second-class and subject to rules for my employment that the Anglo employees are not subject to. I feel that this rule is hanging over my head and can be used against me at any point when the City wants to have something to write me [up] for.

R. Vol. II at 668-75, 677.

Evidence of ethnic taunting included Plaintiffs’ affidavits stating that they had “personally been teased and made the subject of jokes directly because of the English-only policy!,]” 'and that they were “aware of other Hispanic co-workers being teased and made the subject of jokes because of the English-only policy.” Id. Plaintiff Tommy Sanchez testified in his deposition that each time he went to the City of Altus he was reminded of the restrictions on his speech by non-Hispanic employees. He stated that these other employees of the City of Altus “would pull up and laugh, start saying stuff in Spanish to us and said, ‘They didn’t tell us we couldn’t stop. They just told you.’ ” Id. at 660. Sanchez also testified that an Altus police officer taunted him about not being allowed to speak Spanish by saying, “ ‘Don’t let me hear you talk Spanish.’ ” Id. He further testified that “some of the guys from the street department would ... poke fun out of it [the policy]” id., and that when he went to other departments “they would bring it up constantly,” id. As evidence that such taunting was not unexpected by management, Lloyd Lopez recounted in his deposition that Street Commissioner Willis told Ruben Rios and him that he was informing them of the English-only policy in private because Willis had concerns about “the other guys making fun of [them].” R. Vol. II at 627. Plaintiffs also provided evidence that May- or Gramling was “quoted in a newspaper article as referring to the Spanish language as ‘garbage,’ ” id. at 621, although the Mayor claims that he used the word garble and was misquoted.

B. EEOC Proceedings

Each Plaintiff filed a discrimination charge with the EEOC, complaining that the English-only policy constituted national-origin discrimination. Plaintiffs Danny Maldonado and Tommy Sanchez also alleged retaliation in their charges, and Danny Maldonado and Freddie Perez claimed that they had been subjected to “harassment and intimidation resulting in a hostile work environment.” R. Vol. II at 365, 367.

After an investigation the EEOC determined that the City “ha[d] committed a per se violation of [Title VII] with respect to the establishment of its overly broad and discriminatory English-only policy.” R. Vol. II at 563, 567, 569, 572, 575. The EEOC attempted to resolve the dispute informally, but these efforts were unsuccessful. Each Plaintiff received a right-to-sue letter and this litigation commenced. Defendants do not claim that Plaintiffs failed to exhaust administrative remedies.

C. Court Proceedings

In district court Plaintiffs brought (1) disparate-treatment, disparate-impact, and retaliation claims under Title VII, raising a hostile-work-environment theory as part of their disparate-treatment and disparate-impact claims; (2) disparate-treatment and *1302disparate-impact claims under Title VI; (3) equal-protection and First Amendment claims under 42 U.S.C. § 1983; and (4) intentional discrimination claims under 42 U.S.C. § 1981. The district court granted summary judgment in favor of Defendants on all claims.

II. DISCUSSION

“We review de novo a district court’s grant or denial of summary judgment, and we apply the same legal standard [to be] employed by the district court [under] Federal Rule of Civil Procedure 56(c).” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir.1999). “If ... review of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ reveals ‘there is no genuine issue as to any material fact[,] ... the moving party is entitled to summary judgment as a matter of law.’ ” McCowan v. All Star Maint., Inc., 273 F.3d 917, 921 (10th Cir.2001) (quoting Fed.R.Civ.P. 56(c)). “In reviewing such dispositions, this court repeatedly has emphasized that we must draw all inferences in favor of the party opposing summary judgment!,][and][i]n this respect, we must view the evidence in context, not simply in its segmented parts.” O’Shea, 185 F.3d at 1096 (internal citations omitted).

A. Title VI

Plaintiffs claim that as a recipient of federal funding, the City has violated Title VI by adopting the English-only policy. Title VI is a general prohibition against discrimination by federally funded programs.1 When the discrimination relates to employment, Title VI could substantially duplicate Title VII. But 42 U.S.C. § 2000d-3 significantly limits the application of Title VI in the employment context. It states: “Nothing contained in this subehapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal' financial assistance is to provide employment.” We have held that these limitations apply “to the implied private rights of action which have been read into the statute.” Reynolds v. Sch. Dist. No.l, Denver, Colo., 69 F.3d 1523, 1531 n. 8 (10th Cir.1995). Thus, “covered entities can only be sued for employment discrimination [under Title VI] where a primary objective of the Federal financial assistance to that program or activity is to provide employment.” Id. at 1531 (internal quotation marks and brackets omitted).

Accordingly, for Plaintiffs to “sustain [their] Title VI claim[, they] must show that Defendants received federal funds for a primary objective >of providing for employment.” Id. Although Street Commissioner Willis alerted Plaintiffs to the Reynolds requirement in his summary-judgment brief and the City’s summary-judgment brief also noted that the amended Complaint had not alleged a proper Title VI predicate, Plaintiffs never alleged, let alone provided evidence, that any federal funds received by the City have had a primary objective of providing employment. Nor have Plaintiffs alleged or demonstrated that any of their salaries have been paid, in whole or in part, with federal funds. Although on appeal Defendants rely on different arguments with respect to the Title VI claims, “we have discretion *1303to affirm on any ground adequately supported by the record!,]” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir.2004), so long as the parties have had a fair opportunity to address that ground. We therefore affirm the dismissal of all Plaintiffs’ Title VI claims for failure to plead or prove that the federal funding received by the City had a primary objective of providing pertinent employment.

B. Disparate-Impact Claims

Plaintiffs remaining disparate-impact claims arise under Title VII. Title VII defines unlawful employment practices as follows:

(a) Employer practices

It shall be an unlawful employment practice 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). One might say that Plaintiffs have not been subjected to an unlawful employment practice because they are treated identically to non-Hispanics. They claim no discrimination with respect to their pay or benefits, their hours of work, or their job duties. And every employee, not just Hispanics, must abide by the English-only policy. But the Supreme Court has “repeatedly made clear that although Title VII mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination, and that it covers more than terms and conditions in the narrow contractual sense.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal brackets, quotation marks, and citation omitted). The conditions of work encompass the workplace atmosphere as well as the more tangible elements of the job. Title VII does not tolerate, for example, a racist or sexist work environment “that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment!.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted). In their disparate-impact claim Plaintiffs allege that the City’s English-only policy has created such an environment for Hispanic workers. Discrimination against Hispanics can be characterized as being based on either race or national origin. See Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 460 (S.D.N.Y.1998).

To prevail on these claims, Plaintiffs need not show that the policy was created with discriminatory intent. In the leading case on the subject, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” These kinds of claims, known as disparate-impact claims, “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Thus, “[a] disparate-impact claim .... does not require a showing of discriminatory intent.” Bull*1304ington v. United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir.1999), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 n. 11, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). To be sure, claims based on a hostile work environment commonly are disparate-treatment claims, which do require proof of discriminatory intent. Indeed, Plaintiffs here bring such a disparate-treatment claim as well as this discriminatory-impact claim. But there is no reason to prohibit discriminatory-impact claims predicated on a hostile work environment. See generally L. Camille Hebert, The Disparate Impact of Sexual Harassment: Does Motive Matter?, 53 U. Kan. L.Rev. 341 (2005). (It is worth noting, however, that compensatory and punitive damages are not available under a disparate-impact claim. See 42 U.S.C. § 1981a(a)(i).)

The allocation of the burdens of proof in disparate-impact cases is set forth in 42 U.S.C. § 2000e-2(k), enacted in 1991 after the Supreme Court’s opinion in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), imposed a heavier burden on plaintiffs. Under the statute a plaintiff first must “demonstrate[ ] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(l)(A)(i). “This prima facie case, in many respects, is more rigorous than in a disparate treatment case because a plaintiff must not merely show circumstances raising an inference of discriminatory impact but must demonstrate the discriminatory impact at issue.” Bullington, 186 F.3d at 1312. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(D.

1. Prima-facie case

The district court, relying principally on Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir.1993), concluded that Plaintiffs had “not shown that requiring them to use the English language in the workplace imposed significant, adverse effects on the terms, conditions or privileges of their employment, so as to create a prima facie case of disparate impact discrimination under Title VIL” Dist. Ct. Order at 15. Even under Spun Steak, however, English-only policies are not always permissible; each case turns on its facts. 998 F.2d at 1489. Here, Plaintiffs have produced evidence that the English-only policy created a hostile atmosphere for Hispanics in their workplace. As previously set forth, all the Plaintiffs stated that they had experienced ethnic taunting as a result of the policy and that the policy made them feel like second-class citizens. Tommy Sanchez testified to instances of taunting by an Altus Police officer, Street Department employees, and other non-Hispanic employees of the City. As evidence that such harassment would be an expected consequence of the policy, Lloyd Lopez testified that Street Commissioner Willis told him that he was notifying him of the policy in private because of concern that other employees would tease Hispanic employees about the policy if they learned of it.

Some of this evidence, as the district court pointed out, has diluted persuasive power because of the absence of specifics- — -who made what comment when and where. In a typical hostile-work-environment case, we might conclude that the evidence of co-worker taunting did not reach the threshold necessary for a Title VII claim.

There are, however, other considerations with respect to a policy that allegedly creates a hostile work environment. The policy itself, and not just the effect of *1305the policy in evoking hostility by co-workers, may create or contribute to the hostility of the work environment. A policy requiring each employee to wear a badge noting his or her religion, for example, might well engender extreme discomfort in a reasonable employee who belongs to a minority religion, even if no co-worker utters a word on the matter. Here, the very fact that the City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable' inference if there was no apparent legitimate purpose for the restrictions. It would be unreasonable to take offense at a requirement that all pilots flying into an airport speak English in communications with the tower or between planes; but hostility would be a reasonable inference to draw from a requirement that an employee calling home during a work break speak only in English. The less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language. For example, Plaintiffs presented evidence that the English-only policy extended beyond its written terms to include lunch hours, breaks, and even private telephone conversations, if non-Spanish-speaking co-workers were nearby. Absent a legitimate reason for such a restriction, the inference of hostility may be reasonable.

Our task in this appeal is not to determine whether Plaintiffs have established that they were subjected to a hostile work environment. Rather, in reviewing the grant of summary judgment to Defendants, we are to decide only whether a rational juror could find on this record that the impact of the English-only policy on Hispanic workers was “sufficiently severe or persuasive to alter the conditions of [their] employment and create an abusive working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367.

It is in this context that we consider the EEOC guideline on English-only workplace rules, 29 C.F.R. § 1606.7. Under the relevant provisions of the guideline: (1) an English-only rule that applies at all times is considered “a burdensome term and condition of employment,” § 1606.7(a), presumptively constituting a Title VII violation; and (2) an English-only rule that applies only at certain times does not violate Title VII if the employer can justify the rule by showing business necessity, § 1606.7(b). The EEOC rationales for the guideline are: (1) English-only policies “may ‘create an atmosphere of inferiority, isolation, and intimidation’ that could make a ‘discriminatory working environment,’ ” EEOC Br. at 13 (quoting § 1606.7(a)); (2) “English-only rules adversely impact employees with limited or no English skills ... by denying them a privilege enjoyed by native English speakers: the opportunity to speak at work,” id. at 14; (3) “English-only rules create barriers to employment for employees with limited or no English skills,” id.; (4) “English-only rules prevent bilingual employees whose first language is not English from speaking in their most effective language,” id. at 15; and (5) “the risk of discipline and termination for violating English-only rules falls disproportionately on bilingual employees as well as persons with limited English skills,” id. at 16.

EEOC guidelines, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation marks omitted). In Spun Steak the Ninth Circuit rejected the English-only guideline outright because, in its view, nothing in the plain text or the legislative history of Title *1306VII supported the guideline’s presumption of a disparate impact. See 998 F.2d at 1489-90. But we need not resolve the validity of that presumption. For our purposes, it is enough that the EEOC, based on its expertise and experience, has consistently concluded that an English-only policy, at least when no business need for the policy is shown, is likely in itself to “create an atmosphere of inferiority, isolation, and intimidation” that constitutes a “discriminatory working environment.” § 1606.7(a). (We recognize that several of the EEOC’s other grounds for its guideline do not apply here. For example, there is no evidence that the policy prevented any of the Plaintiffs from speaking at work, because all are bilingual.) We believe that these conclusions are entitled to respect, not as interpretations of the governing law, but as an indication of what a reasonable, informed person may think about the impact of an English-only work rule on minority employees, even if we might not draw the same inference. Assuming the reasonableness of the EEOC on the matter, we cannot say that on the record before us it would be unreasonable for a juror to agree that the City’s English-only policy created a hostile work environment for its Hispanic employees. We are not suggesting that the guideline is evidence admissible at trial or should be incorporated in a jury instruction. What we are saying is only that a juror presented with the evidence presently on the record in this case would not be unreasonable in finding that a hostile work environment existed.

2. Business Necessity

As an alternative ground for granting summary judgment on the disparate-impact claim, the district court held that Defendants “offered sufficient proof of business justification.” Dist. Ct. Order at 17. It found “that city officials had received complaints that some employees could not understand what was being said on the City’s radio frequency because other employees were speaking Spanish ... [and] that city officials received complaints from non-Spanish speaking employees who felt uncomfortable when their co-workers spoke Spanish in front of them.” R. Vol. Ill at 886-87. Based on these justifications, it concluded that “Defendants have met any burden they may have to demonstrate that the City’s English-only policy was supported by an adequate business justification.” Id. at 887.

We disagree. One of Congress’s stated purposes in passing the 1991 amendments to the Civil Rights Act was “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).” Civil Rights Act of 1991, Pub.L. No. 102-166, Sec. 3, 105 Stat. 1071 (1991). In Griggs the Supreme Court held that “Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” 401 U.S. at 432, 91 S.Ct. 849. The Court stressed that “[t]he touchstone is business necessity. If an employment practice which operates to [discriminate against a protected minority] cannot be shown to be related to job performance, the practice is prohibited.” Id. at 431, 91 S.Ct. 849.

Defendants’ evidence of business necessity in this case is scant. As observed by the district court, “[T]here was no written record of any communication problems, morale problems or safety problems resulting from the use of languages other than English prior to implementation of the policy.” Dist. Ct. Order at 6. And there was little undocumented evidence. Defendants cited only one example of an *1307employee’s complaining about the use of Spanish prior to implementation of the policy. Mr. Willis admitted that he had no knowledge of City business being disrupted or delayed because Spanish was used on the radio. In addition, “city officials who were deposed could give no specific examples of safety problems resulting from the use of languages other than English____” Id. at 7. Moreover, Plaintiffs produced evidence that the policy encompassed lunch hours, breaks, and private phone conversations; and Defendants conceded that there would be no business reason for such a restriction.

On this record we are not able to affirm summary judgment based on a business necessity for the English-only policy. A reasonable person could find from this evidence that Defendants had failed to establish a business necessity for the English-only rule.

C. Disparate-Treatment

1. Discrimination

Plaintiffs allege that the City engaged in intentional discrimination in violation of several statutes: Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983.2 As previously noted, Title VII bars discrimination in employment on the basis of race or national origin. Section 1981 provides equal rights to make and enforce contracts and to the benefits of laws for the security of persons and property.3 Section 1983 prohibits those acting under color of state law from depriving others of their federal rights;4 the right invoked by Plaintiffs is the right to equal protection of the laws under the Fourteenth Amendment.

"All persons within the jurisdiction of the United States shall have the same right in every State ... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. ...”

The same analytical framework is applicable to all Plaintiffs’ theories of intentional discrimination. “[I]n [disparate-treatment] discrimination suits, the elements of a plaintiffs case are the same ... whether that ease is brought under §§ 1981 or 1983 or Title VII.” Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.1991). To prevail under a disparate-treatment theory, “a plaintiff must show, through either direct or indirect evidence, that the discrimination complained of was intentional.” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir.2000).

Plaintiffs contend that they were intentionally discriminated against by the creation of a hostile work environment. We *1308have already held that there is sufficient evidence to support a finding of a hostile work environment. The issue remaining, therefore, is whether those who established the English-only policy did so with the intent to create a hostile work environment.

To begin with, the disparate impact of the English-only rule (creation of a hostile work environment) is in itself evidence of intent. As the Supreme Court stated in International Brotherhood, of Teamsters, 431 U.S. at 335, 97 S.Ct. 1843 n. 15, in a disparate-treatment case, “Proof of discriminatory motive ... can in some situations be inferred from the mere fact of differences in treatment.” See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (“[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.”).

Here, Plaintiffs can rely on more than just that inference. First, there is evidence that management realized that the English-only policy would likely lead to taunting of Hispanic employees: Street Commissioner Willis allegedly told two Hispanic employees about the policy in private because of concern that non-Hispanic employees would tease them if they learned of it. Also, a jury could find that there were no substantial work-related reasons for the policy (particularly if it believed Plaintiffs’ evidence that the policy extended to nonwork periods), suggesting that the true reason was illegitimate. Further, t