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Library Law: Negative Comments about Employee's Accent May be Discrimination

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Library Law: Negative Comments about Employee's Accent May be Discrimination
By E. Kenneth Friker and James W. Fessler

October 18, 2007

In a nation as culturally and ethnically diverse as ours, libraries frequently employ persons from non-English speaking countries. Typically, these employees will speak with an accent reflecting their heritage. A recent decision of the federal 6th Circuit Court of Appeals has held that negative comments about an employee's manner of speech provides direct, and not merely circumstantial, evidence of unlawful discrimination in denying the employee a promotion.

The case of In re Rodriguez, 487 F.3 rd 109 (6th Cir. 2007), was brought by a FedEx employee who was denied a promotion to a supervisory position. The employee claimed that the denial of his promotion was the result of race-national origin discrimination and as evidence of such discrimination alleged that certain of his superiors made disparaging remarks about his accent. The plaintiff was told by a customer service manager that "…he would have hired Rodriguez but for Atkinson's (Rodriguez's supervisor) stated concern that Rodriguez's accent and speech pattern would adversely impact Rodriguez's ability to rise through the customer ranks." Further, it was alleged by Rodriguez that another FedEx manager told him (Rodriguez) that supervisor Atkinson stated he did not promote Rodriguez because of "how he speaks."

Based on prior case law, the trial judge ruled against Rodriguez on the denial of his promotion and granted summary judgment for FedEx. The judge held that, if proved, the negative comments about Rodriguez's accent were only "circumstantial" evidence of discrimination and that Rodriguez must first establish he was a member of a protected class that he was denied the promotion he was qualified for and that employees who were not members of the protected class were treated more favorably. Only then does the employer bear the burden of demonstrating that failure to promote the employee was based on a legitimate non-discriminatory reason.

However, the 6th Circuit Court of Appeals, with jurisdiction in Kentucky, Michigan, Ohio and Tennessee, disagreed with the trial court and reversed the summary judgment for FedEx. The Court of Appeals held that the alleged negative statements about Rodriguez's accent constituted "direct" evidence of discrimination, not merely "circumstantial," which, if proved, demonstrates "…that unlawful discrimination was at least a motivating factor in the employer's actions." Once such "direct" evidence is presented, the burden is placed on the employer to prove that the adverse action on the employee's employment was based on legitimate reasons and was not merely a pretext to cover up discrimination. The Court of Appeals also pointed out that the Equal Employment Opportunity Commission ("EEOC") regulations provide that denial of an employment opportunity based on the employee's linguistic characteristics is evidence of national origin discrimination. Further, other EEOC regulations provide that the EEOC may scrutinize any employer job selection procedures based on the employee's accent or fluency in English, and that a requirement that the employee speak English at all times is evidence of national origin discrimination.

Clearly, if it can be demonstrated that proficiency in speaking English is a legitimate job requirement, the library cannot be liable for denying an employment opportunity to an employee not fluent in English. However, the key factor is whether or not the employee's speech characteristics are legitimately related to the employee's ability to perform the job for which the employee is being considered. If fluency in English is considered by the library to be a priority in making an employment or promotional decision, the library is well advised to make this requirement clear in its job description and employment criteria.

About the Authors

E. Kenneth Friker and James W. Fessler are partners with the law firm of Klein, Thorpe and Jenkins, Ltd., which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park. The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Originally Published October 19, 2007 in vol. 6, issue 42 of the North Suburban Library System Newsletter and the Metropolitan Library System E-nnounce

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