Accent the Positive, Not Negative

The Supreme Court has let stand a lower-court ruling that an employer does not violate the 1964 Civil Rights Act by refusing to hire someone whose accent “interferes materially” with job performance. That decision, though narrowly drawn, disturbs many who fear that an employer bent on discrimination will now seize on a person’s accent as an excuse to get around the employment protections provided by civil-rights laws. That is a legitimate and understandable apprehension. No less legitimate, though, is the asserted claim of employer rights that the U.S. 9th Circuit Court of Appeals upheld in a ruling the high court saw no reason to change. The next step--the next challenge, really--is to try to prevent this ruling from becoming a tool to pry open the door to unfair hiring practices.

The case at issue involved a Filipino American who seemed qualified in every way for a job with the Department of Motor Vehicles in Honolulu except, in the opinion of two interviewers, for an accent that would have made him “difficult to understand over the phone.” In the view of the appeals court, a refusal to hire was justified only because an essential part of the job involved communicating with the public. Discrimination? In one sense, yes. But illegal discrimination, under the terms of the Civil Rights Act? No, said the court, not if an employer made “an honest assessment” that an applicant’s oral communication skills were inadequate to the needs of the job.

That seems a reasonable enough standard to apply. But it’s also, inescapably, an ambiguous one, depending as it does on a personal judgment that can vary widely from one employer to another, even in the absence of discriminatory intent. A rule that rests on subjective interpretations does not make for settled law. It seems clear enough what the appeals court intended. It’s also a good bet that the courts have not seen the last case involving alleged discrimination based on accent.