The Lost Art of English

An article on Law.com (http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1184663193394) reported on a 6th Circuit case, In Re Rodriguez, in which the court decided that a negative comment about an employee's accent could be evidence of discrimination. In the case, Jose Rodriguez was not promoted to a supervisory position at FedEx because of his accent and speech characteristics (as demonstrated by statements of managers). The lower court granted Summary Judgment to FedEx, believing that he did not satisfy two requirements of the McDonnell Douglas test. Under McDonnell Douglas (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)), the employee must prove that he was a member of a protected class, he was qualified for the position for which he applied, he was denied the position, and that similarly situated employees who were not members of a protected class were treated more favorably. Once the employee establishes his prima facie case, the company can argue a legitimate non-discriminatory reason for its action. If the company does that, then the burden shifts back to the employee to show that the employer's reason was merely a pretext for actual discrimination. However, the scales can be strongly tipped in the employee's favor if the employee can show direct evidence of discrimination.

The lower court believed that Mr. Rodriguez failed to show that he was qualified for the position and that a non-member of a protected class was treated differently. The court also thought that the managers' comments were mere circumstantial evidence of discrimination.
The Sixth Circuit reversed, believing that the comments were in fact direct evidence of discrimination. The Equal Employment Opportunity Commission (EEOC) states that discrimination on the basis of accent is considered to be national origin discrimination. EEOC regulations state that the denial of employment based on accent can be evidence of discrimination. The EEOC also scrutinizes job selection procedures that screen for foreign accents and the inability to communicate in English.

Unfortunately, many industries and positions require employees who can communicate effectively with customers and colleagues. So what to do? Companies should carefully determine whether an accent is legitimately related to an employee's ability to perform their job. If it is, then job postings will need to indicate the importance of clear communication skills. By clearly specifying communication ability as a job requirement, a company may be able to argue that the employee with a strong accent or other speech problem did not meet the position's qualifications. This is not a complete shield from liability, but it can help communication flow smoothly throughout a company while limiting possible discrimination claims.