Garcia

dissenting from denial of rehearing en banc:

Once again, a civil rights principle is the loser at the hands of an unsympathetic court. 1 In this case, by a divided vote, a three-judge panel invalidated an Equal Employment Opportunity Commission (EEOC) Guideline of national scope, upheld an employment rule that discriminates against national-origin minorities without requiring any showing of business justification, and challenged the EEOC’s ability to enact rules codifying its findings regarding specific discriminatory practices. See Garcia v. Spun Steak Co., 998 F.2d 1480 (1993). The two judges in the majority were able to do so only by improperly substituting their policy judgments for those of the EEOC and by misconstruing, or, in one instance, completely disregarding, prior case law.

This circuit, with its enormous immigrant population, a large proportion of whom arrived here only recently, is now the only circuit in the nation in which an employer may adopt a discriminatory English-only rule without even articulating a business justification to support it. Unfortunately, the growth of the immigrant population and the present mood of anti-immigrant backlash mean that…

The order filed October 29, 1993, with dissent, is ordered published.

The panel, with Judge Boochever dissenting, has voted to deny appellees’ petition for rehearing. Judges Noonan and O’Scannlain have voted to reject the suggestion for rehearing en banc and Judge Boochever has recommended acceptance of the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.RApp.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.