It’s Not What You Say, It’s How You Say It:
Accent Discrimination Part and Parcel of Title VII’s
Prohibition Against National Original Discrimination

According to the 2003 Census, nearly 34 million US residents are foreign-born – a 38% percent increase from 1996. Nearly 11 million residents are not fluent in English – a 67% increase since 1990.

As more and more foreign-born workers are integrated into American society at large, employers are increasingly faced with issues of language, fluency and even accent in the workplace. In 2006 the Equal Employment Opportunity Commission (EEOC) received 8,327 charges based on national origin discrimination, hostile work environments and invalid English-only rules. The EEOC leveraged some $21.2 million in settlements alone from employers based on these claims.

Although there are many nuances to national origin discrimination, one that has recently come to the forefront is the issue of accent discrimination. In this regard, Title VII’s regulations prohibit not only discrimination based on place of origin, but also “because an individual has the physical, cultural or linguistic characteristics of a national origin group.” A recent case from the United States Court of Appeals for the Sixth Circuit makes the point of accent coverage rather clearly. See In re Rodriguez, 6^th Cir., No. 06-1988, 6/27/07. In that case, Jose Antonio Rodriguez was employed as a driver for a national package delivery company. He inquired about promotion, was directed to and participated in the Company’s in-house leadership course, but was turned down for three supervisory positions. Rodriguez claimed that he was denied the promotions because his supervisor raised concerns to hiring personnel and company officials about his accent, “how he speaks” and whether his accent prevented him from being understood. The supervisor denied the comments. Even so, the court held that there was enough evidence of discrimination for the case to go to a jury. Although the case was based on Michigan’s analogous civil rights law, the court recognized in its decision the EEOC’s determination that “linguistic” discrimination is a form of national origin discrimination.

In fact, the EEOC has issued specific enforcement guidance on the subject to accent discrimination and the limits on an employer’s ability to use accent as a basis for its employment decisions, of which all employers should be aware:

"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. 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. Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still determine whether the particular individual's accent interferes with the ability to perform job duties."

EEOC Compliance Manual Section 13: National Origin Discrimination. Available at www.eeoc.gov/policy/docs/national-origin.htm.

Because the use of any language, fluency or accent based criteria in employment decisions could implicate national origin discrimination concerns, employers should only use such factors if they have a complete and thorough understanding of the applicable legal limits.

If you have questions about national origin, accent or linguistic discrimination, or the validity of English-only rules and fluency requirements in the workplace, you can contact Ryan Poor, a Partner in Ice Miller’s Labor and Employment Section, at ryan.poor@icemiller.com.