Is It Illegal To Consider A Foreign Accent When Evaluating Candidates For a Customer-Service Job?

Yes, unless the candidate’s language skills would clearly interfere with their ability to do the job.

Amidst all of the current controversy concerning immigration in the United States, the experience of immigrants in the workplace is also receiving heightened attention. The truth is, immigrants, including those who have become U.S. citizens, often have different workplace experiences than native-born Americans.  One such difference has to do with accents and how they can affect perceptions of competence.

Putting the Accent on the Accent.

The accent issue recently took center stage in a federal appeals court case which took up the issue of whether foreign accent discrimination is illegal under Title VII. The case is Iyoha v. Architect of the Capitol, No. 17-5252 (D.C. Cir. Jul. 2, 2019).

The plaintiff in the case is an information technology professional working for the federal government. He grew up in Nigeria speaking Eshan, his family’s native language but studied English in primary school before moving to the U.S. at the age of 29. In 2011, the federal agency where the plaintiff worked hired a new Chief Information Officer (CIO). According to the plaintiff’s lawsuit, shortly after taking over, the new CIO stopped having in-person meetings with the plaintiff and told his staff that he was pleased that the plaintiff preferred to communicate with him by e-mail because he could not understand him when he spoke, due to his accent. The lawsuit also alleged that the CIO commented multiple times about employees who do not speak English as their first language. When someone raised concern about these comments, the CIO is alleged to have said, “So sue me. We can’t have people like this as our first-line communicators.”

About a year after the new CIO was hired, the plaintiff was reassigned to a position which did not involve interactions with customers. This reassignment was part of a larger reorganization in which, according to the lawsuit, others who were not native English speakers were also removed from customer-facing positions.

Later, after the plaintiff was passed over twice for a promotion, he sued, alleging that he was discriminated against because of his accent. The trial judge granted pre-trial summary judgment to the government, and the plaintiff appealed.

The Court of Appeals reversed the trial court’s decision and sent the case back for a trial. The Court ruled that discrimination against an employee due to a foreign accent is one of several types of national origin discrimination prohibited by Title VII and may, therefore, be the basis for a lawsuit. The Court also found that the plaintiff had presented enough evidence that the CIO had discriminatory motives to warrant a trial. The Court noted, however, that if the employer had asserted (and proved) that the plaintiff’s language skills interfered with his ability to perform his job, the outcome of the case might have been different, citing a federal case from Hawaii where a court ruled that an adverse employment decision may be based on an individual’s accent when — but only when — it interferes materially with job performance.

Lessons Learned and Practical Advice

This case is instructive for a number of reasons. It reminds us that:

  1. Modern workplaces are diverse, and you should regard national origin diversity and knowledge of different world languages by employees as organizational strengths, to be appreciated and encouraged.
  2. When evaluating candidates for hiring or promotion, in most cases, you should consider a foreign accent an absolute non-factor.
  3. If a candidate’s English skills are so poor that you reasonably doubt their ability to do the job, you may factor this into your decision, but you should be absolutely sure that both the job description and reliable, verifiable evidence from the hiring or promotion process supports your decision.
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About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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