According to new Census data, a record 21.5% of U.S. residents speak a foreign language at home, including 45% of California residents and 31% of New York and New Jersey residents. In Tennessee, foreign language speakers more than quadrupled in the last twenty-five years. Are these individuals protected under the law if they encounter accent discrimination in the workplace? The answer is: generally yes, unless the individual’s accent materially interferes with his or her job performance.
Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e–2(a)(1) (emphasis added). While Title VII does not explicitly outlaw accent discrimination, courts, along with the Equal Employment Opportunity Commission, have recognized that accent-related discrimination can often constitute national origin discrimination and therefore run afoul of Title VII.
As the EEOC explained in its 2016 Enforcement Guidance on National Origin Discrimination, a person’s national origin and his or her accent are “intertwined,” since a person’s “accent can reflect whether [the] person lived in a different country or grew up speaking a language other than English.” According to the EEOC’s Enforcement Guidance, “courts take a ‘very searching look’ at an employer’s reasons for using accent as a basis for an adverse employment decision” in light of that linkage between a person’s accent and national origin.
Here are a few examples of accent-related employee discrimination lawsuits that have resulted in favorable settlements:
- The Delano Regional Medical Center reached a $975,000 settlement in a national origin case filed by the EEOC and the Asian Pacific American Legal Center on behalf of a class of roughly seventy Filipino-American hospital workers. The plaintiffs in this suit alleged that they were the victims of harassing comments, discipline, and undue scrutiny, especially when speaking with a Filipino accent. In addition, they alleged that the medical center’s staff routinely mocked the employees’ accents, ordering Filipino-American hospital workers to speak English even when they were already conversing in English.
- Phoenix Four Points by Sheraton settled a national origin discrimination lawsuit brought by the EEOC for $50,000 and other relief. The EEOC had charged the defendants with subjecting Basil Massih, an Iraqi-American hotel worker, to a hostile work environment due to the employee’s Iraqi national origin. The lawsuit alleged, among other things, that the hotel subjected Mr. Massih to national origin harassment by mocking his accent and calling him derogatory names.
- Brown & Brown Chevrolet settled a national origin discrimination case for $99,000. The lawsuit, which was brought by the EEOC, alleged that the car dealership’s manager denied a Nigerian employee a promotion on the basis of his accent. In particular, the lawsuit charged that the dealership’s sales manager announced during a work meeting that the Nigerian employee would not be receiving a promotion because he needed to learn to speak “more like an American.”
As a caveat, it is not always illegal for an employer to render a decision based on an individual’s accent. The EEOC has cautioned that “an employment decision may legitimately be based on an individual’s accent if the accent ‘interferes materially with job performance.’” To satisfy this standard, however, an employer must set forth evidence, not simply unsupported assertions, demonstrating both that: (1) effective spoken communication in English is necessary for the employee to perform his or her job duties; and (2) the person’s accent materially interferes with his or her ability to communicate orally in English.
If you believe that you have been discriminated against based on your accent, you should consult with an employment lawyer, who can assess the circumstances of your case. Sanford Heisler Sharp, LLP has experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, and Tennessee.