Language-Based Employment Discrimination
It is lawful to refuse advancement or hiring of an employee if the employee’s foreign accent materially interferes with the employee’s ability to perform the assigned job duties. However, it is of utmost importance to provide evidence of this material interference, as discrimination cases are decided on a case-by-case basis.
National Origin Discrimination
Discrimination based on national origin is prohibited under Title VII, 42 U.S.C. § 2000e et seq. (“Title VII”), and O.R.C. § 4112.01 et seq. Ohio courts examine employment discrimination claims under federal case law. Plumbers & Steamfitters Comm. v. Ohio Civ. Rights Comm’n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131 (1981).In order to establish a prima facie case for Title VII national origin discrimination, a plaintiff must proffer either direct or circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). A plaintiff who lacks direct evidence of discrimination may establish a prima facie case of discrimination through circumstantial evidence by showing that:
she is a member of a protected class;
she suffered an adverse employment action;
she was qualified for the position lost; and
she was replaced by an individual outside the protected class or treated less favorably than a similarly-situated individual outside the protected class.
Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002). Assuming the employee can establish a prima facie case, the burden then shifts to the employer to show a legitimate, non-discriminatory reason for the adverse employment action.
Lingusitic Characteristics and National Origin
The close relationship between language and national origin led the Equal Employment Opportunity Commission (“EEOC”) to classify discrimination based on “linguistic characteristics” as unlawful under Title VII. 29 C.F.R. § 1606.1 and § 1606.7(a)(noting that, in the context of “speak English-only” rules, that “the primary language of an individual is often an essential national origin characteristic”). The EEOC therefore prohibits “the denial of equal employment opportunity . . . because an individual has the . . . linguistic characteristics of a national group.” Id.
“Because linguistic characteristics are a component of national origin, employers should carefully scrutinize employment decisions that are based on accent to ensure that they do not violate Title VII.” 29 C.F.R. §1606.1. The court in Fragante v. City & County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989), cert. denied, 494 U.S. 1081 (1990), stated that accent and national origin are “obviously inextricably intertwined,” therefore requiring a “very searching look” at employment decisions based on accent.
Material Interference With Job Performance
The EEOC also provides that “an employment decision based on foreign accent does not violate Title VII if an individual’s accent materially interferes with the ability to perform job duties.”11 The Sixth Circuit has applied the EEOC standard in many cases. In Berke v. Ohio Dep't of Pub. Welfare, 628 F.2d 980, 981 (6th Cir. 1980), the court affirmed a judgment for the plaintiff by finding that “plaintiff was denied two positions within the Department because of her accent which flowed from her national origin.”
Additionally, in Ang v. Procter & Gamble Co., 932 F.2d 540 (6th Cir. 1991)(reversed and remanded on other grounds), the Court stated that “unlawful discrimination does not occur [ ] when a plaintiff’s accent affects his ability to perform the job effectively.” Id., at 549, citing Fragante v. City & County of Honolulu, 888 F.2d 591 (9th Cir.1989). (emphasis added) 29 C.F.R. §1606.1 “This assessment depends upon the specific duties of the position in question and the extent to which the individual’s accent affects his or her ability to perform job duties.” EEOC Compliance Manual, 2002. Employers should distinguish between a merely discernible foreign accent and one that actually interferes with the communication skills necessary to perform job duties. Id.
Applying this standard, the court in Carino v. University of Oklahoma Board of Regents, 750 F.2d 815 (10th Cir. 1984) found that an individual with a noticeable Filipino accent was unlawfully demoted from his position as a supervisor and not considered for a supervisory position in a new facility. The court found that the employee’s accent would not interfere with the duties required of a supervisor. Id., at 819. In contrast, in Fragante, supra the court found that the employer lawfully refused to hire an individual with a pronounced Filipino accent for a position requiring constant phone communication with the public. The record revealed that the employee’s pronounced Filipino accent would make him difficult to understand over the telephone. Fragante, at 597-98.
Guidance from the EEOC
The EEOC states more directly in its Compliance Manual that “positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing.” (emphasis added) EEOC Compliance Manual, 2002. The Manual further states that “[e]ven for these positions, an employer must still determine whether the particular individual’s accent interferes with the ability to perform job duties. Id. The EEOC provides these two examples:
Employment Decision Where Accent Is Not A Material Factor
Anna, a Pakistani librarian in an elementary school, is responsible for cataloguing, researching, and reading aloud to young children. Her performance evaluations reflect that she is an excellent cataloguer and researcher and that she can communicate effectively with teachers and older children, but that some of the youngest children have had difficulty understanding her due to her accent. When her position is eliminated, Anna asks the local school board to transfer her to a position at a high school that involves cataloguing and researching but requires minimal student contact. The school board appropriately grants Anna’s transfer request because Anna is qualified and her accent would not materially interfere with her ability to perform the librarian position at the high school.
Employment Decision Where Accent Is A Material Factor
A major aspect of Bill’s position as a concierge for XYZ Hotel is assisting guests with directions and travel arrangements. Numerous people have complained that they cannot understand Bill because of his heavy Ghanaian accent. Therefore, XYZ notifies Bill that he is being transferred to a clerical position that does not involve extensive spoken communication. The transfer does not violate Title VII because Bill's accent materially interferes with his ability to perform the functions of the concierge position. EEOC Compliance Manual, 2002.
From these two examples, it would appear that the amount of contact and communication with students would be a primary factor in determining whether the employee’s accent materially interferes with her job duties. The degree to which students and staff members can understand the employee would also be an important factor.
An employer must document the reasons why an employee’s accent materially interferes with the employee’s performance. This is illustrated in a decision made by the the Ohio Court of Claims in Sarach-Kozlowska, M.D. v. Univ. of Cincinnati College of Medicine, 2004-Ohio-1926 (Ct. Claims). The court applied the foregoing principles and case law and ultimately held that the employee was not qualified for a medical residency position where her foreign accent prevented her from communicating effectively. Id., at ¶ 18. The court relied heavily on the evidence provided by the employer and held that “the evidence in this case demonstrates that plaintiff’s difficulty with speaking the English language was not simply the result of talking with a foreign accent; was a deficiency in plaintiff's ability to articulate “technical spoken English.” Id.
The court continued by stating that, “while the individuals who hired plaintiff had an opportunity to assess plaintiff's language skills, the evidence shows that her difficulty in communicating increased when she was under stress, which would be especially true in her chosen field of anesthesiology.” Id., at ¶ 20. “[P]laintiff worked primarily in an operating room environment, where her mouth would have been covered by a surgical mask, which factor, coupled with an underlying inability to speak clearly and precisely, could certainly “interfere materially” with her job performance.” The court also noted that faculty who worked with the employee stated that her language difficulties were interfering with safe patient care and that surgeons were “fearful that [plaintiff] wasn’t ‘with’ them” in the operating room. Id. Given all of the evidence provided by the employee, the court denied the employee’s claim for national origin discrimination. Id.
It is only lawful to refuse advancement or hiring of an employee if the employee’s foreign accent materially interferes with the employee’s ability to perform the assigned job duties. Evidence of such interference is crucial and could include information that the employee’s job description specifically required certain “communication skills” or that communication has been a problem for the employee in the past.