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Discrimination Based on Accent Two Questions Employers Should Ask

August 23, 1999
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Title VII protects individuals against employment discrimination on the basis of national origin in the same way that it protects against discrimination based on race, color, religion and sex. Denial of employment opportunity because of a person’s accent is unlawful discrimination on the basis of national origin unless the employer can show a legitimate nondiscriminatory reason. According to the Equal Employment Opportunity Commission (EEOC), distinctions based on accent are permissible only when accent "interferes materially with job performance." The question for employers to ask, therefore, is whether an individual's accent makes it substantially more difficult for him or her to perform the job duties.

Discrimination based on accent can be a "cover" for more overt discrimination based on national origin. It would be an easy refuge for an employer unlawfully discriminating based on national origin to state falsely that it was not the person's national origin that caused the problem but her inability to measure up to the communications skills required by the job. Furthermore, an employer can be liable even if it genuinely believes that accent poses a problem for adequate performance of a job if the employer is mistaken and is requiring an unduly high ability to communicate.

Therefore, employers should ask themselves two questions:

  • Does the ability to communicate materially relate to the ability to perform the job?
  • Does the individual's accent interfere with that necessary ability to communicate?

If the answer to either question is no, and the employer has denied employment opportunities based on a person's accent, then, according to the EEOC, the employer will be liable for national origin discrimination.

Example: Acme Spool Company is hiring for a bolt-tightener job, an unskilled entry-level assembly line position. The company rejects Yung-Mi Lee, a U.S. citizen born in Korea, because Ms. Lee's foreign accent makes it difficult to communicate with her.

    • Although Acme claims that it rejected Ms. Lee because of her accent, EEOC investigators would not accept that claim at face value. If, for example, Acme has previously hired for the same job individuals with thick regional accents who are equally difficult to understand, Acme may be applying its standards inconsistently--that is, that it may have treated Lee differently from others on the basis of national origin. This evidence would also defeat Acme's claim that ability to communicate is materially related to the ability to perform the job.
    • Even if Acme can show that it rejects everyone with heavy accents, it would still have to show that being able to communicate well in English was required for the particular job and that Lee's accent interfered with that ability. If all that the job requires is that Lee use a wrench to tighten bolts every ten seconds, communication is probably not job related.

It is not a defense that Acme simply wanted to hire employees with whom its supervisors could "better" communicate. With even minimal ability to communicate effectively, Lee would be able to take direction from her supervisor and perform the job. If, however, Lee doesn’t understand English and can’t take direction in English, Acme might be justified in turning her down even for the bolt-tightener job. Whether Acme could avoid liability would depend on the specific facts of the case. For example, it is relevant whether Lee's supervisor or other Acme officials or employees only spoke English or whether anyone else also spoke Korean and could translate for her when necessary.

Other employer decisions made on the basis of an individual's ability to speak English well are analyzed in similar ways. For example, to justify a requirement that an individual be fluent in English, an employer would have to show that the level of fluency required was materially related to job performance. Also note that the ability to communicate in writing may be justified if the ability to write clearly in English is an essential part of the job.

Examples of jobs in which the ability to communicate in English has been found essential:

    • Jobs requiring extensive contact with clients

For example, the job of hotel desk clerk requires extensive contact with hotel guests.

    • Managerial job requiring clear communication of job requirements or standards to subordinates

For example, the job of foreman at a construction site requires extensive communication with construction workers and other project managers.

    • Job requiring frequent response to emergency situations in which quick and succinct communication is necessary.

For example, hospital staff must deal with emergencies and often must be able to communicate quickly and effectively communicate what is wrong with a patient or what needs to be done by other members of the staff.

Source: "National Origin Discrimination; Employment Discrimination Prohibited by Title VII of the Civil Rights Act of 1964, as amended" by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999. (Revised).

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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