Civil rights enforcers go after "accent discrimination."
By Walter Olson
Reason, November 1997
People tell me I speak with a peculiar accent, hard to place geographically.
This might some day keep me from a lucrative second career as a talk show
host, an injustice that would apparently tug at the heartstrings of our
federal government, which has lately been cracking down on one of the newer
infractions on the ever-expanding list of bias offenses: "accent discrimination."
It's true: the Equal Employment Opportunity Commission and private lawyers
are hitting employers with legal complaints for preferring jobholders whose
manner of speech is familiar and understandable to the customers and co-workers
they deal with. In fact, in many cases it has become legally suspect for
companies to insist on strong communications skills. The immigrant-rights
unit of the U.S. Department of Justice has run subway and newspaper ads
warning that the "ability to speak fluent English" must not "affect your
decision about hiring a prospective employee."
Don't blame this all on the Clintonites. The Bush administration EEOC
actually pioneered the trend in 1992, when it filed charges against a California
company that had fired a credit manager with a strong Indian accent. Robert
Gaskins, former CEO of Eiki International, told the Orange County Register
that customers had complained that Rambhai Patel's phone calls on overdue
accounts were "rude and insensitive" as well as hard to understand. Rather
than fight, Gaskins's company agreed to settle without admitting wrongdoing
for $12,000, plus undisclosed damages. As employment settlements go, $12,000
isn't that high. Maybe bill collectors whose manner is perceived as unfriendly
are in such demand from other businesses that they don't stay out of work
A more widely publicized case came up the same year when a state court
in Washington upheld a verdict against Seattle-based People's National
Bank, which didn't think Cambodian-born Phanna Xieng had shown strong enough
language skills to qualify for a post where he'd interact with irate customers
turned down for loans. Xieng's lawyers called medical experts who claimed
the shock of not getting promoted was so psychologically traumatic that
it would prevent their client from working for at least five years. It
brought back memories, they said, of mistreatment at the hands of the deadly
Khmer Rouge. And voilà: a $389,000 award.
Civil rights enforcers admit there are some circumstances where employers
may legitimately consider accents. They just take an ultra-narrow view
of what's legitimate. Consider the controversy that engulfed the town of
Westfield, Massachusetts, a couple of years ago.
The town's school system had assigned instructor Ramon Vega to an experimental
program where he'd teach language skills to first- and second-graders.
Some parents had trouble understanding Vega's conversation themselves and
worried that their kids might have the same problem. Four hundred of them
proceeded to sign a petition asking that instructors in early grades be
proficient in "the accepted and standard use of pronunciation."
When word reached Boston, all hell broke loose. The state education
commissioner charged the parents with "bigotry." The National Education
Association rushed through a resolution at its annual meeting decrying
disparate treatment on the basis of "pronunciation"--quite a switch from
the old days when teachers used to be demons for correctness on that topic.
A foundation voted a $100,000 grant to be sent to the town for more bilingual
programs to enlighten the populace.
Experts popped up and were quoted saying expert things. Donaldo Macedo,
described as "director of graduate studies in bilingual education" at a
local university, accused the parents of "linguistic racism" and declared
to the Boston Globe that "there's not a single piece of research in linguistics
that shows children who are raised by someone with a heavy accent acquiring
that accent"--a curious assertion that would seem to raise the question
of how kids ever happen to grow up with heavy accents at all (as well as
sidestepping parents' concerns, of which the actual transmission of accent
was probably not the most important).
Globe columnist Alan Lupo took the lead in the condescension derby,
calling the parents "know nothings" who yearn for a "homogenized" world
and "fear changes they cannot or do not wish to fathom"; he advised them
to "educate themselves about change and help their kids prepare for it."
Lupo pegged the parents as the kind of chillingly competitive overachievers
"who begin tracking their kids' educational and professional careers when
the children are barely out of diapers."
All of which suggested he hadn't spent much time in Westfield, a rather
gritty mill town heavily populated by first- and second-generation ethnics.
In fact it should come as no great surprise that immigrants are often strong
supporters of setting high standards for English proficiency: Not only
do they see fluency as crucial to their children's success, but they keep
running into that arch-frustration: dealings among novice English speakers
whose original languages are not the same.
Westfield Mayor George Varelas, himself a Greek immigrant with a marked
accent, backed the parents. "Persons like myself--and I cannot be confused
with someone from Boston or Alabama--should not be" in charge of 5- and
6-year-olds' first language skills. "I would only impart my confusion and
give them my defects in terms of language." Varelas got sacks of supportive
mail from around the country. But it was Massachusetts Attorney General
Scott Harshbarger who had the last word. Harshbarger's office quickly ruled
that it would be unlawful for the school system to consider Vega's accent,
threatened to sue if they transferred him to another job, and that apparently
Elsewhere, influential law professors push the new line. Stanford's
Mari Matsuda has proposed in the Yale Law Journal that employers be made
to "accommodate" shortcomings in English, just as they're now made to accommodate
deaf or blind employees: Since we make them cater to "absence of speech",
why not "difference of speech"? She says companies might want to hire supervisors
conversant with the language their assistants wish to speak; if that doesn't
work, they might try using written instructions, "sign language" and "pictographs."
Another widely cited piece, in the Harvard Law Review, claims that "difficulty
in understanding those with less common accents is socially contingent,
and...customers will ultimately adjust to the accented speaker if our civil
rights law insists that accented speakers be allowed to hold positions
in which they regularly communicate with the public."
Won't it be frustrating for customers to have to "adjust" to hundreds
of different accents? Tough. It is "necessary to reject customer preference
arguments," argues Matsuda, a leader in the Critical Race Theory movement.
Barring accent discrimination in service jobs "will admittedly impose some
hardship on businesses that rely heavily on pleasing customer whims"--thus
reducing to a mere "whim" humans' desire to communicate clearly with each
other in transacting their affairs. If customers fail to understand an
accent, Matsuda suggests, it might be their own fault for having "lived
a monocultural life."
The result is to worsen the frictions of immigration. A February investigation
by USA Today found language hassles to be widespread, with nearly one in
four poll respondents reporting problems in the last year because a clerk,
salesperson, or other service representative spoke English poorly. A mother
in Long Beach, California, gasped when her 12-year-old son came back from
the barber shop with his head shaved: It seemed he'd asked for just a trim,
but the man with the clippers didn't speak English well. A Virginia woman
found that shopping for a coffee table took 30 minutes instead of 10 "because
I couldn't understand anyone and no one understood me." Students at Penn
State were struggling to keep up with lectures delivered by a graduate
instructor new to these shores. "Economists say the lack of language proficiency
costs businesses billions of dollars," the paper reported.
It is perfectly true that many, perhaps most, of these frustrations
are an inevitable cost a free society puts up with during periods of high
immigration and robust labor demand. But the old principle of freedom of
association in employment had a crucial advantage, namely that it gave
employers discretion to balance the disadvantages of hiring the English-speaking
novice for a particular job (customer frustration, the hazards of incomprehension)
with the disadvantages of insisting on fluency (higher wage costs, passing
up valuable skills). Now the law tries to short-circuit the calculation.
And woe betide the employer who hints to a lower-level worker that he might
get ahead faster if he availed himself of that good old American tradition,
the accent-reduction course.
For ambitious enforcers casting their eyes on the horizon, there remains
one problem: Not all accents may yet be grist for legal action. Federal
anti-bias statutes say nothing about accent as a protected category, but
creative lawyering has swept it in as an extension of the ban on discrimination
based on national origin. A similar extension may allow workers to sue
over accents associated with race. Thus one compliance manual advises employers
that in choosing between native-born applicants they must not favor those
whose "manner of speaking" more closely "reflects the norms of the Caucasian
community." But that suggests that there may not yet be a right to sue
over job decisions based on homegrown nonracial accents--although it seems
plausible that a white South Carolinian with a very heavy accent might
be at a disadvantage for certain jobs in Rhode Island, and vice versa.
But give the lawmakers time. Already, Cincinnati is reported to have
enacted a municipal ordinance declaring "Appalachian heritage" to be a
legally protected category in hiring and firing. When heading for the job
interview, pack your dulcimer.
Visit Walter Olson's home page
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