By
Robert B. Fitzpatrick, Esq.
Justin P. Sacks, Esq.
Workplace
discrimination on the basis of national origin, of which accent discrimination
is often a component, rose by 76% between 1997 and 2011. See Associated
Press, “Discrimination Against Foreign Accents: A Growing Problem”, AOL Jobs
(Nov. 30, 2012) (available here). In Wilkie
v. Geisinger Sys. Servs., the plaintiff, a native of Germany who spoke
fluent English with a German accent, brought a claim for national origin
discrimination against her employer following her termination. No. 3:12-cv-580, 2014 U.S. Dist. LEXIS 132162
(M.D. Penn. Sept. 18, 2014). Plaintiff
argued that the employer terminated her on the basis of her German origin. Plaintiff claimed that her supervisors had
told her that they were “not fond of Germans”, made at least ten jokes about
Adolf Hitler, sometimes referred to Plaintiff as “Little Hitler”, ordered her
not to speak German in the workplace even on personal calls, and mocked her
accent. In one written exchange, one of Plaintiff’s
supervisors mocked a conversation he had with Plaintiff by stating that it was
just “yada, yada…stutter, stutter”.
In analyzing the significance
of the remarks from her supervisor about disliking Germans and comments
regarding Adolf Hitler, the Court invoked the “stray remarks” doctrine. This doctrine provides that “stray remarks by
non-decisionmakers or by decisionmakers unrelated to the decision process are
rarely given great weight, particularly if they were made temporally remote
from the date of decision.” Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 514 (3d Cir. 1992). In the Third Circuit, such statements are
evaluated based on their temporal proximity to the adverse action, the
relationship of the speaker to the plaintiff, and the context in which the
remarks were made. Id. The Court found that some
of the remarks, which – viewing the facts in the most favorable light to Plaintiff
– may have been made only several months prior to her termination were
potentially relevant, but that others more remote in time were not
relevant. The Court strongly implied
that these “stray remarks” comparing Plaintiff to Hitler and establishing that
the supervisors who terminated Plaintiff were “not fond of Germans” would have
been insufficient, by themselves, to overcome summary judgment.
More relevant to the Court was
the fact that Plaintiff was prohibited from speaking her native language in the
workplace for any purpose. As an initial
matter, numerous courts and commentators, have recognized that “language may be
used as a covert basis for national origin discrimination.” Wilkie,
2014 U.S. Dist. LEXIS 132162 at *24 (citing Abbasi
v. SmithKline Beecham Corp., 2010 WL 1246316 (E.D. Pa. 2010)); see also Raad v. Fairbanks N. Star
Borough Sch. Dist., 323
F.3d 1185, 1195 (9th Cir. 2003) (“Accent and national origin are obviously
inextricably intertwined in many cases.”); Wesley v. Palace Rehab. &
Care Ctr., L.L.C., 2014 WL
956016, at *5 (D.N.J. 2014) (discussing when accent-based discrimination
constitutes national origin versus racial discrimination in the context of a 42
U.S.C. § 1981 claim); Le v. City of Wilmington, 736 F. Supp, 2d 842, 855 (D.
Del. 2010) aff'd, 480
F. App'x 678 (3d Cir. 2012) (differentiating “disparaging remarks about one's
language skills and national origin” from situations where “an employee's heavy
accent or difficulty with spoken English can be a legitimate basis for adverse
employment action where effective communication skills are reasonably related
to job performance”) (quoting Yili Tseng v. Florida A & M Univ., 380 Fed. App'x. 908, 908-10
(11th Cir. 2010)). Patreese D. Ingram,
“Are Accents One of the Last Acceptable Areas for Discrimination”, Journal of
Extension, Vol. 49, No. 1 (Feb. 2009) (available here)
(describing the incidence of accent discrimination, and citing studies showing
that an individual’s perceived race impacts the perception of their accent); Russell,
A. “Thou shalt not speak: Accent discrimination in the American workplace”
(2002) (available here)
(noting that “accent discrimination” is “one of the final acceptable forms of racism”).
Indeed, the Ninth Circuit has
held that courts must take a “very searching look” at adverse employment
decisions allegedly based on an individual’s accent interfering with their
ability to communicate. See Fragante v. City & Cy. Of Honolulu,
888 F.2d 591, 595 (9th Cir. 1989). In Fragante, the Ninth Circuit acknowledged
that an accent could constitute a legitimate reason for an adverse action if it
interfered “materially” with communication.
Id. at 596-97 (“There is
nothing improper about an employer making an honest assessment of the oral communications skills of a candidate
for a job when such skills are reasonably related to job performance”)
(emphasis in original). However, in so
doing, the Court cautioned that alleged poor communication skills would appear
to be an “easy refuge” for an employer whose actual motive was national
origin. Id. at 596. In Fragante, the Ninth Circuit affirmed the
lower court’s determination that the defendant had legitimate concerns about Plaintiff’s
ability to communicate. Defendant
established this through the contemporaneous written evaluation of Plaintiff by
two interviews, each of whom indicated that Plaintiff was likely to be
difficult to understand over the phone. Id. at 598. This, the Court held, was sufficient factual
basis to constitute a legitimate, non-discriminatory, reason for his
non-selection.
While it remains unclear how
an employer is to determine at what point difficulties communicating become
“material”, at least one court has suggested that this standard should be
objective, rather than subjective. In Xieng v. Peoples Nat’l Bank, the
Defendant suggested that an adverse action should be deemed non-discriminatory
if the ability to speak English is a job requirement and the employer had a
“good faith belief that…lack of communication skills would materially interfere
with job performance.” 821 P.2d 520, 579
(Wash. Ct. App. 1991). The Court
rejected this view, noting that the “‘good faith belief’ standard is
inconsistent with the heavy burden Fragante
places on employers in accent discrimination cases.” Id.
at 580. Instead, the Court found that
“[g]ood faith alone is not enough”, explaining that “the employer’s honest
assessment must have a factual basis” to qualify as a legitimate,
non-discriminatory reason. Id. at 580 n.4.
Returning to Wilkie, the Court, after recognizing the
connection between accent and national origin discrimination, turned to the
guidelines promulgated by the EEOC regarding “English-only” policies in the
workplace. See 29 C.F.R. 1606.7. Noting
that the EEOC’s guidance distinguishes between policies which require that
employees speak English “at all times” or “only at certain times”. Wilkie,
2014 U.S. Dist. LEXIS 132162 at *25-*26, quoting
Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d 1147, 1163 (D. Neb.
2012). In brief, the EEOC guidance
provides that English-only policies are permissible “at certain times” when
justified by business necessity. 29
C.F.R. 1606.7(b) (“Policies applied only at certain times are permitted, but
only where the employer can show the rule is justified by business necessity.”)
(internal quotations omitted); see also Roman v. Cornell Univ., 53 F. Supp. 2d 223, 237
(N.D.N.Y. 1999) (“Several courts have held that an English-only policy
designed to reduce intra-office tensions is a legitimate business reason.”)
(collecting cases).
While Defendants apparently
conceded that the guidelines applied, the Court noted that this issue was not
settled. In Garcia v. Spun Steak, the Ninth Circuit rejected the validity of
Section 1606.7, finding that the EEOC’s interpretation was contrary to the text
of Title VII. 998 F.2d 14801, 1489-90
(9th Cir. 1993). In Garcia, the Ninth Circuit held, contrary to the EEOC’s guidance,
that the implementation of an English-only policy “does not inexorably lead to
an abusive environment for those whose primary language is not English[.]” Id.
Emphasizing that “[w]hether a working environment is infused with
discrimination is a factual question” the court refused to create a per-se rule regarding English-only
policies. In so doing, the court
rejected 29 C.F.R. 1606.7, explaining that “[n]othing in the plain language of
section 703(a)(1) supports EEOC’s English-only rule Guideline.”
By contrast, the Tenth Circuit
found that “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.” Maldonado
v. City of Altus, 433 F.3d 1294, 1305 (10th Cir. 2006). Interestingly, in Maldonado, the Tenth Circuit noted, in dicta, that “hostility would be a reasonable inference to draw from
a requirement that an employee calling home during a work break speak only
English.” Id. In other words, “[t]he
less apparent justification for speaking English, the more reasonable it is to
infer hostility”. Id.
In Wilkie, the Court noted that there was no need to determine the
weight afforded to section 1606.7 because Defendants did not have a blanket
policy – only Plaintiff was prohibited from speaking German on personal
calls. Wilkie, 2014 U.S. Dist. LEXIS 132162 at *28. The Court found that, if true, such an
individual restriction would be “indicative of discrimination.” Id. Noting the record was unclear as to the
particulars of this restriction, the court found that it constituted an issue
of material fact which was in genuine dispute.
Following this conclusion, the court
addressed several additional arguments raised by Defendant in support of its
motion for summary judgment, including Defendant’s claim that supervisors who
terminated Plaintiff “are of German descent.”
Id. at *34. As an initial matter, the Court reiterated
the basic principle, put forth by the plaintiff, that “being a member of a
class does not preclude one from discriminating against that class.” Id.;
see also Castaneda v. Partida, 430 U.S. 482, 499 (1977) (“Because
of the many facets of human motivation, it would be unwise to presume as a
matter of law that human beings of one definable group will not discriminate
against other members of their group.”).
Although the Court did not explore this line of reasoning, it is worth
noting that the plaintiff argued that there is a difference between an
individual who has some “ancestry” of a particular sort, and an individual who
is a foreign national. Wilkie, 2014 U.S. Dist. LEXIS 132162 at
*34.
Ultimately,
the Court held that the “stray remarks” submitted by plaintiff, coupled with
the other evidence of discrimination was sufficient, “though barely”, to defeat
summary judgment. In so doing, the Court
opined that although Defendants may argue at trial that Plaintiff was
disciplined and terminated in accordance with policy, that Plaintiff need not
argue that point here. Plaintiff’s
burden at summary judgment, which she met, was to show that “the factors
discussed above combine to create a reasonable inference that an invidious
discriminatory reason was more likely than not a motivating or determinative
cause of Defendants decision to fire Plaintiff.” Wilkie,
2014 U.S. Dist. LEXIS 132162 at *35 (internal quotations omitted).
Other
courts which have addressed the problem of language-based national origin
discrimination in the workplace have taken a similar approach. In Architect
of the Capitol v. Iyoha, the Board of Directors of the Office of Compliance
of the United States Congress affirmed the Hearing Officer’s determination that
Complainant, a Nigerian man with a Bachelor’s degree in English and Associate
Degrees in Mass Communication and Journalism, had been discriminated against on
the basis of his national origin. Nos.
11-AC-138, 11-AC-129 (Bd. of Dirs. Dec. 11, 2014) (available here)
(accessed Dec. 12, 2014). In Iyoha, the evidence demonstrating that
Complainant had been discriminated against came primarily in terms of comments
about his proficiency in English and his accent.
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