Is this Discrimination?

by Gerard Panaro, BOL Guru

Q. I work for a bank in California. A couple of months ago I was promoted from a teller's job to being a loan officer. My new job requires extensive contact with customers, both face-to-face and over the phone. I've just been told that I am being removed from my loan officer position because the bank has received too many complaints from customers, and even from some other employees, that I am almost impossible to understand due to my accent. I am originally from Nigeria, English is not my native language, and I guess I do have a heavy accent, but does this justify what the bank has done?

A. It might. If your speech is literally incomprehensible, unintelligible to people, then the bank may not be engaging in unlawful discrimination by removing you from the position. The basic rule is that an employer may not base a decision on an employee's foreign accent unless the accent materially interferes with job performance. Therefore, if the employer can prove that an employee's accent "materially interferes" with his job performance, it may base its decision on that fact. It is impossible to provide a definitive answer without more information, but here is some general guidance.

The following information is from the EEOC Compliance Manual:

Employers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics. However, linguistic characteristics are closely associated with national origin. Therefore, employers should ensure that the business reason for reliance on a linguistic characteristic justifies any burdens placed on individuals because of their national origin.

An employment decision based on foreign accent does not violate Title VII (the federal law that prohibits discrimination on the basis of national origin, including language) if an individual's accent materially interferes with the ability to perform job duties. This assessment depends upon the specific duties of the position in question and the extent to which the individual's accent affects his or her ability to perform job duties. Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still determine whether the particular individual's accent interferes with the ability to perform job duties. The examples below illustrate how to apply these principles.

The EEOC compliance manual gives a concrete example of these principles that I am afraid does not auger well for your success in bringing a claim of discrimination. Here is the example (#17) in the Compliance Manual:

Employment Decision Where Accent is a Material Factor

A major aspect of Bill's position as a concierge for XYZ Hotel is assisting guests with directions and travel arrangements. Numerous people have complained that they cannot understand Bill because of his heavy Ghanaian accent. Therefore, XYZ notifies Bill that he is being transferred to a clerical position that does not involve extensive spoken communication. The transfer does not violate Title VII because Bill's accent materially interferes with his ability to perform the functions of the concierge position.

Finally, don't overlook state and possibly local (county or city) anti-discrimination law. The California Fair Employment and Housing Act forbids discrimination on the basis of national origin and is enforced by the California Department of Fair Employment and Housing, which has its own website www.dfeh.ca.gov. Another possibility is to consider whether you have any facts to support a claim of race discrimination.

About the Author:
Gerard P. Panaro is a graduate of the Georgetown University Law Center, admitted in D.C. and Maryland, and holds a Ph.D. in philosophy from Boston College. He is Of Counsel in the Washington, DC offices of Howe & Hutton, Ltd., whose main office is in Chicago, with a third in St. Louis.

First published on BankersOnline.com 2/23/04