I Want to Speak Like a Native Speaker:
The Case for Lowering the Plaintiff’s Burden of Proof in Title VII Accent Discrimination Cases
GERRIT B. SMITH
"Discrimination on the basis of a person’s foreign accent has been found to be prohibited in certain instances under Title VII of the 1964 Civil Rights Act. With the steady influx of non-native speakers of English into the United States, this area of the law is likely to see an increase in litigation in the coming years. However, more often than not, plaintiffs in accent discrimination cases are unsuccessful in winning their claim. Using linguistic, demographic, and economic research, this Note argues that a plaintiff’s burden of proving accent discrimination should be lowered, in order to deter employers from discriminating against accented speakers. This in turn would better integrate immigrants into American society, allowing them to reach their full potential, at least in terms of employment.
“I pray every night before I go to bed, I want to speak like a native speaker as soon as possible"1
1Coming to America—Eye-Opening Experiences Mold Young Immigrants, SEATTLE TIMES, June 2, 1992, at F3 [hereinafter Coming to America] (spoken by Young Park, a Korean immigrant).
Sophia Poskocil is a middle-aged woman and a native of Bogotá, Columbia. She received her high school and college education in Columbia and, though her native tongue is Spanish, she speaks English fluently. From 1989 through 1991, Poskocil attended Hollins College, in Virginia, on a part-time basis. She qualified for a teaching certification from the Virginia Department of Education...Over the span of six years, Poskocil applied to a total of nineteen positions with Roanoke County schools, but was denied employment each time. On March 20, 1996, she filed charges with the Equal Employment Opportunity Commission (EEOC) accusing the school division of national origin3 and age discrimination.4 During the trial, evidence was introduced that the school district based its decision not to hire Poskocil on student evaluations. Students in Poskocil’s Northside High School class complained that Poskocil was difficult to understand because of her foreign accent. In their evaluations, students wrote, among other things, that the “instructor [Sophia Poskocil] barely spoke English, [and] was hard to understand.”5
Ultimately, the district court granted summary judgment in favor of the school district, stating that the plaintiff failed to demonstrate that the county
discriminated against her.6 What is disturbing about the case is that Poskocil was not applying to teach a high school English class, which might have made the students’ complaints more relevant, but rather Poskocil was applying to teach Spanish classes.7 Moreover, it appears that no one at her trial had a difficult time understanding her. However, her apparently substantial foreign accent and the school district’s argument that Poskocil’s accent interfered with her communication skills led the Poskocil court to find that Roanoke County relied on a legitimate non-discriminatory reason for not hiring her.8"
Additional information (by me):
Virginia (Roanoke): Minority Discrimination Suit Dismissed (dead link)
"In her lawsuit filed last year, Sophia Poskocil (from Colombia) said that, beginning in 1992, she applied for 19 positions, but the school system never interviewed her because English wasn't her first language. In dismissing Ms. Poskocil’s lawsuit Tuesday, Chief U.S. District Judge Samuel Wilson noted that each of the 19 teachers who was hired instead of Poskocil 'held a master's degree, was qualified for dual or triple certification, had strong interview performances, more extensive educational experiences and course work, or better references than Poskocil.'" (Roanoke Times, 01-13-99, by Michael Hemphill)
[former link http://www.roanoke.com/roatimes/news/story44303.html]
"To be sure, there are countless Sophia Poskocils whose stories never make it into the hallowed halls of U.S. courts, let alone into the pages of law review articles.
(Comment: Possibly more deserving ones? The evidence listed in judge's ruling should have sufficed, the negative comments about plaintiff's English were unnecessary. The case however still illustrates well the murky side of U.S. employment practices).
Proving discrimination under the Title VII proof scheme is a difficult task, as evidenced by the discussion of the case above.9 This Note will take a critical look at the developments in Title VII foreign accent10 discrimination cases. I will argue that rapid changes in the demographic landscape of the United States, specifically the increased influx of immigrants from non-English speaking countries, makes combating accent discrimination11 more important than ever..."
"Most immigrants come to the United States because they are searching for better job opportunities and the possibility of getting higher wages than in their country of origin.112 They tend to be younger113 and less educated114 than native-born individuals. Moreover, most immigrants will earn lower wages than the average person in the United States.115
However, some immigrants, such as Sophia Poskocil and Manuel Fragante, come to the United States highly skilled and with advanced education. Often times skilled immigrants find themselves underemployed because of their “lack” of English skills, or as this Note is arguing, perceived lack of English skills due to their foreign accent.116"
"The most famous accent discrimination case to date took place in the Hawaiian Islands. In Fragante v. City & County of Honolulu, the plaintiff, Manual Fragante, applied for a job with the Honolulu Division of Motor Vehicles (DMV). Fragante “placed high enough on a civil service” exam, to make him eligible to be chosen for the position.74 However, Fragante was not selected for the position, because “of a perceived deficiency in relevant oral communication skills caused by his ‘heavy Filipino accent.’”75
Manuel Fragante’s story is in many ways inspirational. In 1981, at the age of sixty, Fragante immigrated to the United States from the Philippines, his birth home. By all accounts Fragante was an intelligent and educated man. He had a law degree, spoke four languages, and was an officer in the Philippine military.76 Throughout his military career he was invited to attend prestigious U.S. military schools, where he frequently performed better than his American counterparts. During his years of serving with the U.S. military, there were never any complaints about Fragante’s accent. His English language ability was rated as “excellent” by his military superiors. Fragante’s strong command of the English language can be attributed to the fact that all his schooling in the Philippines was in English."
"Manuel Fragante’s positive experiences with his American colleagues made him think about emigrating to the United States. In the early 1980s, his daughter was already living in Hawaii and in April 1981, he and his wife immigrated to the United States. He was subsequently naturalized as a U.S. citizen.78
Not wanting to sit at home, Fragante applied for an advertised position at the DMV and as stated above was rejected for the position. At the oral interview, Fragante’s two interviewers were not impressed with his oral communication skills. Both noted his “very pronounced accent” and felt that it would interfere with performing the functions of the job. As a result, they did not recommend Fragante for the position and another applicant was hired.79 As in Poskocil, the court held in favor of the employer, noting that the DMV appeared to have acted on “reasonable business necessity,” since Fragante “would be less able than his competition to perform the required duties” of the job.80
What leads one to pause for a moment (or two!) when reading the case is that Fragante not only “placed high enough” on the civil service exam to qualify to be considered for the DMV position, but scored the highest score of the 721 test takers.81 Perhaps more importantly, Fragante did not apply for a supervisory or managerial position at the DMV, but for an entry-level clerk’s job. The clerk position “involved such tasks as filing, processing mail, cashiering, orally providing routine information to the ‘sometimes contentious’ public over the telephone and at an information counter, and obtaining supplies.”82 Furthermore, a study of the position was conducted by the DMV..."
"Sulochana Mandhare earned two bachelor’s degrees in her native India, one of which was in education. After she immigrated to the United States, she obtained a Master’s of Education degree from Loyola University in New Orleans and received certification as a school librarian. Mandhare was employed as a librarian at an elementary school serving children from kindergarten through second grade. After one year of employment the school district decided not to renew her contract, stating that Mandhare had “a communication problem because of her heavy accent . . . which prevented her from effectively communicating with primary school students.”118 The district court found that the school district discriminated against Mandhare and held in her favor, stating that she was “eminently qualified” to be a librarian.119 However, the appeals court reversed without an opinion, leaving Mandhare in a state of “untold emotional anguish [and] financial difficulty.”120
Accented professionals do not fare much better in the United States. In Hou v. Pennsylvania Department of Education, the plaintiff was originally from China and had his Ph.D. in mathematics.121 Dr. Hou was refused promotion on the basis that his accent hindered his teaching effectiveness. The court noted that “[t]he issue of accent in a foreign-born person of another race is a concededly delicate subject when it becomes part of peer or student evaluations, since many people are prejudiced against those with accents.”122"
As already illustrated in the discussions about Poskocil149 and Fragante,150 customer or co-worker’s preference arguments routinely enter into the opinion of the courts in these contexts. For example, in Ang v. Proctor & Gamble,151 the Sixth Circuit rejected a Chinese-American plaintiff’s claim of accent discrimination,152 despite evidence that Proctor & Gamble (P&G) appeared to have had at least a disparaging attitude toward non-native speakers of English. P&G’s “Company Norms” brochure at the time stated “that the inability to speak the ‘King’s English’ may be viewed by those in the majority culture as equating to intelligence (i.e. lack of),”153 suggesting that accented speakers better get rid off their accent in order to be seen as smart and arguably therefore worthy of advancement.
84 "Interestingly, the linguist, who sat through Fragante’s trial, noted that during the proceedings attorneys for both sides made mistakes in grammar and sentence structure, including the judge. When reviewing the transcript of the trial, the linguist further found that Fragante’s English “was more nearly perfect in standard grammar and syntax than any other speaker in the courtroom.” In addition, at no point in the trial did anyone state that they could not understand Fragante’s speech. Id. at 1338."
(Comment: that must have made him many friends)
"At trial a linguist testified that Fragante speaks grammatically correct, standard English, with an accent that is characteristic of someone who was born and raised in the Philippines. The linguist concluded that a non-prejudiced speaker of English would have no trouble understanding Fragante.84 Despite this, the defendant maintained that the plaintiff did not “speak clearly” and as stated above the district court and, more importantly, the Ninth Circuit sided with the defendant.85 Based on the evidence in the case, the outcome of the case is highly questionable.
"According to linguist Rosina Lippi-Green, claims by accent reduction classes to eliminate accents “is an insupportable claim.” See LIPPI-GREEN, supra note 86, at 140. Moreover, these classes can be primarily found in the New York and in southern States and are frequented by accented professionals. Id. at 140. While claims of completely eradicating one’s accent seem unsupportable, claims of a 50% reduction in accent seem more realistic."
"Linguist Rosina Lippi-Green notes that one needs to differentiate between two kinds of accents, namely a first language (L1) and second language (L2) accent. L1 accent is considered to be a variety of spoken U.S. English. Moreover, “every native speaker of US English has an L1 accent, no matter how unmarked the person’s language may seem to be.” ROSINA LIPPI-GREEN, ENGLISH WITH AN ACCENT: LANGUAGE, IDEOLOGY, AND DISCRIMINATION IN THE UNITED STATES 43 (1997)."
103 "Everyone has an accent, hence it may not be proper to speak of “accent-free” language. When employer’s refuse to hire a person because of his or her “accent”, the employer is “referring to a hidden norm of non-accent—a linguistic impossibility, but a socially constructed reality.” Matsuda, supra note 9, at 1361."
"A number of studies have analyzed how native speakers perceive the speech of non-native speakers.167 Studies have shown that persons with a foreign accent from certain countries were perceived to be “significantly less successful.”168 For example, a Swedish study demonstrated that when the listener was told the accent they heard was from a Kurd, the speaker was perceived as less successful than when the listener was told that the speaker was German, although the same person was speaking.169 Linguists have found that native speakers will often attach “cultural meanings to an accent which derive from the stereotypes and prejudices that the listener holds toward the race or ethnic group associated with that accent.”170 Speakers with accents of Western European countries, for example, appear to be less discriminated against than non-native speakers from less developed countries.171
"Moreover, hostility by some individuals toward accented speakers will likely mean that employers will continue to include customer preference as a defense if courts allow defendants to do so. Perceived problems on the part of customers with employees who are L2 speakers are widely documented. Whether it is at the doctor’s office or fast-food drive-throughs, native speaking customers are apparently “frustrated” more than ever by having to “communicate with people who aren’t from here.”178 However, one should not read too much into these “frustrations.” As linguist Rosina Lippi-Green’s notes, “breakdown of communication is due not so much to accent as it is to negative social evaluation of the accent in question, and a rejection of the communicative burden” on the part of the listener.179 Moreover, this assertion is supported by other research that shows that “a strong foreign accent does not necessarily reduce the intelligibility or comprehensibility of speech produced by non-native speakers.”180"
(COMMENT: While I may sympathize with the cause, accent is often a major cause of "frustrated attempts at communication", or "unsuccessful attempts at communication under frustrating circumstances". The customer may be a short-tempered jerk, employee language skills and accent often result in poor service and plenty of native speakers provide terrible service on a daily basis.)
"178 Gary Strauss, Can’t Anyone Here Speak English? Consumers Frustrated by Verbal Gridlock, USA TODAY, Feb. 28, 1997, at 1A. The article includes a number of testimonials from customers who have had bad experiences with people “who spoke poor English.” For example, a Ohio customer experienced the following at a fast food store: “You’re sitting there trying to order McNuggets. How can someone not understand that? You just get fed up and drive off.” Another unhappy experience occurred when a “barber who spoke poor English” was told to give a twelve-year-old a “trim.” The boy came home with a shaved head. Id. However, it needs to be pointed out that in the incidents listed above the non-native speakers apparently had more than just heavy accents, but rather were beginners of speaking English. Moreover, every day experiences tell us that these misunderstandings can happen even when both the customer and the employee are native speakers."
"...However, whether there is an economic benefit to being bilingual is unclear, at least when your native language is not English. For example, a Canadian study suggests that speaking both French and English, rather than just English, has no benefit in terms of earning higher wages. In fact, native French-speaking Canadian men still earned less after learning English than their monolingual English speaking Canadian counterparts. Geoffrey Carliner, Wage Differences by Language Group and the Market for Language Skills in Canada, J. HUMAN RESOURCES 384 (1981)."