Today’s employees come from hundreds of foreign countries and speak hundreds of languages. Some employees have accents and some employees are difficult to understand because of their accents. What is an employer to do? It is illegal under state and federal law to discriminate against an applicant or an employee because of his or her national origin. Is it discrimination to require that an employee speak in a manner that is understandable? It depends.
There are many jobs where the employees do not come into contact with the public, or where speech and communication are not critical elements of the job description. For these jobs, thick accents do not create an obstacle for the employee to effectively perform their job. But where a job does require an employee to be articulate and easily understood, being clearly understood is an essential function of the job. In those cases, heavy accents may result in great difficulty for foreign employees to be understood. So, for example, where an employee’s job entails answering and speaking on the telephone, if the person on the other end of the telephone cannot understand the employee, there is a problem.
Ability to effectively communicate can be a legitimate job criterion if it is related to the functions and tasks of the job. Employees who cannot speak clearly will not have the qualifications to perform that job. Whether or not fluency in English is essential for job performance must be determined on a case-by-case basis. The 2016 EEOC Enforcement Guidance on National Origin Discrimination states “National origin discrimination involves treating people … unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background…”
Accent and Nationality
In a 1989 case, Fragante v. City and County of Honolulu et al, the plaintiff was a Filipino applicant for a position as a clerk with the City and County of Honolulu. He scored the highest of all applicants on a civil service examination. However, the employer did not hire him because of the perceived deficiency in his relevant oral communication skills caused by his “heavy Filipino accent.” He sued the employer alleging that the failure to hire him was discrimination on the basis of national origin. The 9th Circuit Court of Appeals stated that:
“Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion program, but the candidate’s inability to measure up to the communications skills demanded by the job.”
The court agreed with the employer that Mr. Fragante did not have the necessary communication skills because of his accent. The court reached this conclusion with the following caveat: “An adverse employment decision may be predicated upon an individual’s accent-but only when-it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance.”
An employment decision can legitimately be based on an individual’s accent if the accent interferes materially with job performance. Job descriptions should expressly state that ability to communicate in a manner that can be understood is an essential job function. The burden is on the employer to provide evidence demonstrating that effective spoken communication in English is necessary for the job and the individual’s accent materially interferes with his or her ability to communicate in English.
Employers should act carefully when making adverse employment decisions based on an individual’s accent.