A friend emailed an article from www.law.com to me that I thought was interesting.
In In re Rodriguez, No. 06-1988, --F.3d--, 2007 WL 1827284 (6th Cir. June 27, 2007), the 6th U.S. Circuit Court of Appeals reversed a summary judgment award in favor of employer, FedEx Freight East, Inc., which allegedly denied an employee a promotion due to the employee's accent and speech characteristics. The appellate court concluded that the employee had provided direct evidence in support of his national origin discrimination claim.
The employee was not selected for a supervisory position he sought. A manager allegedly told Rodriguez that he would have hired Rodriguez but for the supervisor’s stated concern that Rodriguez's accent and speech pattern would adversely impact Rodriguez's ability to rise through the customer ranks.
Another FedEx manager allegedly told Rodriguez that his supervisor said he did not promote Rodriguez because of Rodriguez's accent and "how he speaks."
lower court granted summary judgment to FedEx on Rodriguez's race discrimination claim (which the 6th Circuit later reclassified as a national origin discrimination claim) over the promotion denial.
As the lower court viewed the statements about Rodriquez's accent and speech, the court decided that the employee must establish that he was a member of a protected class, that he was qualified for the position applied for, that he was denied the position and that similarly situated employees who were not members of the protected class were treated more favorably to state a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. The burden then shifts back to the employee to demonstrate that the employer's proffered reason was a pretext for discrimination. Applying that standard, the district court found that Rodriguez had failed to establish a prima facie case because Rodriguez did not establish that he was qualified for the promotion or that he was treated differently than a similarly situated non-Hispanic employee.
On appeal, the 6th Circuit reversed the lower court’s decision in favor of grant of FedEx on Rodriquez's promotion claim. The 6th Circuit concluded that the district court erroneously treated the negative statements about Rodriquez's accent and speech pattern as circumstantial evidence of discrimination and improperly analyzed the evidence under the McDonnell Douglas burden-shifting framework.
Rather, the appeals court concluded that such statements were direct evidence of discrimination. Direct evidence of discrimination is "evidence, which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Once a plaintiff provides direct evidence of discrimination, the employer has the burden of showing that "it would have terminated the plaintiff's employment had it not been motivated by discrimination."
The appeals court concluded that the comments showed that a FedEx decision maker denied Rodriquez the position because of his accent and English language skills. The court noted that "accent and national origin are inextricably intertwined." The court also noted that the Equal Employment Opportunity Commission regulations recognize "linguistic discrimination as national origin discrimination."
It is not a huge leap to see how this case could be applied to hiring and show how a person rejected because of an accent has been discriminated against.
Jeff Altman
The Big Game Hunter
Concepts in Staffing
thebiggamehunter@cisny.com
© 2007 all rights reserved.
Jeff Altman, The Big Game Hunter, is Managing Director with Concepts in Staffing, a New York search firm, He has successfully assisted many corporations identify management leaders and staff in many disciplines since 1971. He is a certified leader of the ManKind Project, a not for profit organization that assists men with life issues, and a practicing psychotherapist.
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