EEO REPORT - Negative Statements About an Employee’s Accent May Be Direct Evidence of Discrimination
October 8, 2007
In Title VII cases, a plaintiff must present either direct or circumstantial evidence of discrimination for a claim to survive. The defendant-employer has a significantly more difficult evidentiary burden when the plaintiff demonstrates direct evidence of discrimination than when the plaintiff presents only circumstantial evidence. Increasing the difficulty for employers, the Sixth Circuit Court of Appeals recently held that negative statements concerning an employee’s accent may be direct evidence that the employee has suffered discrimination on the basis of his national origin.
In In re Rodriguez, 487 F.3d 1001 (6th Cir. 2007), a FedEx employee alleged that he was denied a promotion because he is Hispanic. According to Rodriguez, he had advised the Regional Human Resources Manager, Adkinson, that he wished to obtain a supervisory position. Subsequently, Rodriguez was not selected for two supervisory positions that became available, despite being interviewed twice for one of the positions. The manager who conducted the interviews found Rodriguez to be qualified, but stated that Rodriguez was not promoted because Adkinson had expressed concerns about Rodriguez’s “Hispanic speech pattern and accent” and had stated that Rodriguez’s accent would hinder his ability to “rise through the company ranks.” A second witness also testified that Adkinson’s stated reason for not promoting Rodriguez was his “language” and “how he speaks.”
The Sixth Circuit concluded that Adkinson’s statements were direct evidence that Rodriguez was denied a promotion because of his national origin. The court stated that “accent and national origin are inextricably intertwined.” In so holding, the Sixth Circuit overturned the District Court, which had concluded that the statements made by Adkinson were merely circumstantial evidence of discrimination.
Direct vs. Circumstantial Evidence
The Sixth Circuit’s finding that Adkinson’s negative statements were direct evidence of discrimination is significant because it translates into a higher burden of proof. Direct evidence is evidence which, if believed, requires the conclusion that the plaintiff suffered discrimination. Once direct evidence of discrimination is presented, the burden shifts to the employer to prove that the same decision would have been made even without the discriminatory motive.
Circumstantial evidence, on the other hand, is evidence from which one could infer that discrimination occurred. If a case is based solely on circumstantial evidence, the plaintiff has the burden of proving a prima facie case of discrimination. In a promotion denial case, the plaintiff must therefore establish that he was a member of a protected class, he applied for a position for which he was qualified, he was denied the position and he was treated differently than similarly situated employees who were not members of the same protected class. If the plaintiff meets this burden, the employer then has the burden of providing a legitimate nondiscriminatory reason for the denial decision. The employee must then demonstrate that the employer’s stated reason is merely a pretext for unlawful discrimination. The significance of this burden shifting analysis is that the employee must establish all of the elements of a prima facie case and successfully refute the employer’s legitimate nondiscriminatory reason for making a decision for his claim to survive – a much harder burden than in a direct evidence case.
Some Employment Decisions May Be Based on an Employee’s Accent
The EEOC’s definition of national origin discrimination includes denial of an employment opportunity because of an individual’s “cultural or linguistic characteristics.” 29 C.F.R § 1606.1 But not every employment decision based on an individual’s accent violates Title VII. According to the EEOC Compliance Manual, an employer may base an employment decision on a person’s accent if the accent materially interferes with his ability to perform his job duties. Teachers, customer service representatives and telemarketers are examples of positions for which effective oral communication in English may be required. The EEOC warns, however, that “[e]mployers should distinguish between a merely discernable foreign accent and one that interferes with communication skills necessary to perform the job duties.” The EEOC Compliance Manual also suggests that an employee should be transferred to another position rather than terminated if his accent interferes with his ability to perform his job duties.
Conclusion
The Sixth Circuit’s decision in In re Rodriguez and the EEOC regulations make it clear that employment decisions based on an employee’s accent can violate Title VII. Employers should carefully analyze each case to determine whether an individual’s accent truly impacts his ability to perform his job duties before taking any adverse action.
For more information, email Kelli A. Fitzgerald at kelli.fitzgerald@hklaw.com or call toll free, 1-888-688-8500.
Related Practices