Accent cases in civil rights law.

Publication: Employee Relations Law Journal

Publication Date: 22-SEP-04

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COPYRIGHT 2004 Aspen Publishers, Inc.

This article reviews and analyzes more than 75 court decisions issued over the past two decades involving "accents."

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"[T]here is a misunderstanding as to what an accent is. Everyone has an accent. It is merely a manner of pronunciation, often linked to national origin." (1)

Accent cases are, of course, a sub issue of the broader category of national origin discrimination. National origin discrimination is defined as "the denial of equal employment opportunity, because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." (2) In fiscal year 2002, some 2,700 charges of national origin harassment were filed with the Equal Employment Opportunity Commission (EEOC). (3) This number represented a doubling of those charges over the past decade. From 1990 to 2001, one of every two new workers in the United States was foreign born. (4) The sharp increase in foreign-born workers, the backlash regarding September 11th, and the continuing terrorist threat have all contributed to the increase in national origin charges.

Accordingly, the EEOC has promulgated additional guidelines addressing harassment, accents, language, and dress. (5) Those guidelines are strongly supported by federal court cases.

ACCENTS AS EVIDENCE OF NATIONAL ORIGIN DISCRIMINATION

One of the strongest statements regarding the importance of one's native language was made by a district court judge in Smothers v. Benitez. (6) Briefly, a teacher named Kathy Smothers brought a civil rights claim against the Puerto Rican Board of Education. The latter had administered a test for prospective teachers that was offered only in Spanish. Smothers is monolingual in English. In part, the court observed:

The identification of language ability with national origin may be an appropriate tool for the protection of language minorities. (7)

The court amplified on the above observation by saying:

Any language can be identified as an essential characteristic of a particular national group. For a characteristic to be considered synonymous with any group in the equal protection context, it must be immutable. While language can be considered a mutable characteristic, it has immutable aspects. New language can be learned and old ones forgotten, however, the knowledge of a language, insofar as it is an ethnic characteristic, leaves identifiable traces like accents, surnames, and behavior patterns. (8)

Another court summarized the above by stating that: "Discrimination based on manner of speaking can be national origin discrimination." (9)

The courts have had numerous opportunities to delineate the circumstances when supervisor or coworker ridiculing of an employee's accent can constitute such discrimination. For example, Straughn, an African American woman, was terminated after she had also received workers' compensation benefits while on a paid accident leave. (10) She was dismissed for dishonesty, but she maintained that her dismissal was pretextual. According to Straughn, her supervisor had frequently used an offensive "southern black" accent at meetings attended by her and other employees. Her supervisor denied such conduct. The court stated that "stray remarks" may be material. (11) However, the court noted that:

[P]robativeness is circumstantial if they (i.e., the remarks) were made in a situation temporally remote from the date of the employment decision or ... were not related to the employment decision in question, or were made by nondecisionmakers. (12)

Thus, even though a negative comment may be made by an employee regarding another individual's accent, the courts, in determining whether the comment was a "stray one," may note the number of times that the comment[s] have been made, (13) the time frame that the comment[s] are made relative to the adverse employment decision, (14) and whether or not the comment is made by someone in authority who has decision-making power over the plaintiff. (15)

In a related case, the court also dealt with the circumstances when a comment or comments regarding an employee's accent could be considered discriminatory. (16) Rini Das was a native of India and a gay woman. She was employed as a Clinical Quality Engineer. Shortly after her hire, her supervisor noticed that she used informal language and slang in her communications with other employees. Also, her spelling was poor (e.g., "because" was spelled "becoz"). Das was verbally counseled and subsequently was...

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