Friday, December 12, 2014

Do You Hear What I Hear? Accent Discrimination in the Workplace.

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. 

            In Iyoha, the Complainant, the Help Desk Manager for Respondent’s Production Management Branch, was transferred from his customer-service related position into a project-management position, allegedly due to poor performance.  In fact, much as in Wilkie, Complainant had consistently received favorable performance reviews until he came under the management of an individual who disliked his accent.  Iyoha’s new manager made comments such as “[t]hank goodness [Complainant] sent me an e-mail because I can never understand him when he talks to me” and “We have a Branch Chief from Iran, engineers from Taiwan and Germany who do not speak English as their first languages.  What can you expect?”  Following Complainant’s reassignment, he was replaced by an individual who spoke English as his first language.  The Hearing Officer found, and the Board agreed, that the circumstances of Iyoha’s reassignment gave rise to an inference of discrimination.

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