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Employer Accent Discrimination

by Joseph C. Maya on Jun. 19, 2017

Employment Employment Discrimination Employment 

Summary: A blog post about the problems with making employment decisions based on an employee or a prospective employee's accent.

Contact the experienced employment law attorneys at Maya Murphy, P.C. today at (203) 221-3100 or JMaya@Mayalaw.com

The Equal Employment Opportunity Commission (EEOC), interprets and enforces Title VII’s prohibition of discrimination as forbidding any employment discrimination by employers against employees based upon race, color, gender, religion, sex, age, genetic information, or national origin.

An accent can reflect whether a person has lived in a different country or grew up speaking a language other than English.  National origin and accent are therefore intertwined and employment decisions or harassment based upon accent may violate Title VII pursuant to the views of the EEOC.  Due to the link between accent and national origin, courts take a, “very searching look,” at an employer’s reasons for using accent as a basis for an adverse employment decision and require employers to provide evidence – as opposed to unsupported assertions – to explain such actions.

Under Title VII, an employment decision may legitimately be based on an individual’s accent if the accent, “interferes materially with job performance.”  Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989); see also Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir. 2003).  To meet this standard, an employer must provide evidence showing that: (1) effective spoken communication in English is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English.  See Fragante, 888 F.2d at 596 (“An adverse employment decision may be predicated upon an individual’s accent when – but only when – it interferes materially with job performance.”); see also Dafiah v. Guardsmark, LLC, No. 10-cv-03119-RBJ-MJW, 2012 WL 5187762, at *5 (D. Colo. Oct. 19, 2012).

As a further example, the EEOC provides employers with a fact pattern which may look innocuous on its face, but could lead to discrimination claims against the employer.
The EEOC provides the following set of facts which could spring forth a claim of discrimination against the employer:

Employee, an experienced retail professional who works for National Retailer, speaks English with a Nigerian accent. National Retailer selects Employee for a Regional Loss Prevention Manager position. An executive who will oversee Employee’s work approaches her immediately after the promotion and comments, “I bet this is a great achievement considering where you came from. As an African, you must be the first to achieve this much success in your family given your accent.” The executive tells Employee to, “try to speak more like an American,” and also to be careful about her demeanor because, in his opinion, “Africans are known to be brash and aggressive.” The executive repeats these comments on several occasions during Employee’s first several months on the job. There is no evidence, however, that staff members misinterpret or do not understand Employee’s spoken English. In fact, the evidence shows that staff members respond promptly to Employee’s directions without seeking clarification and provide information that is responsive to her requests. Nonetheless, after nine months, the executive terminates Employee’s employment, telling her that she is a, “poor fit,” for the Regional Loss Prevention Manager position. When Employee requests further explanation, he cites discomfort with her, “thick African accent;” asserts that some staff members do not understand her; and laments that she did not speak, “more like an American.” Based on these facts, the EEOC would find reasonable cause to believe that National Retailer discriminated against Employer because of her national origin.

The EEOC further advises that in assessing whether an individual’s accent materially interferes with the ability to perform job duties, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job.   Evidence of an accent materially interfering with job duties may include: (1) documented workplace mistakes attributable to difficulty understanding the individual; (2) assessments from several credible sources who are familiar with the individual and the job; or (3) specific substandard job performance that is linked to failures in spoken communication.

If you are an employer and are faced with an employee claim of discrimination under Title VII, or are facing a claim under jurisdiction of the EEOC, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.


Source: eeoc.gov

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