Case Study:
[Manuel Fragante applied for a clerk’s job with the city and county of Honolulu. Although he placed high enough on a civil service eligibility list to be chosen for the position, he was not selected because of a perceived deficiency in relevant oral communication skills caused by his “heavy Filipino accent.” Fragante brought suit, alleging that the defendants discriminated against him on the basis of his national origin, in violation of Title VII of the Civil Rights Act. At the conclusion of the trial, the district court found that the oral ability to communicate effectively and clearly was a legitimate occupational qualification for the job in question. Finding no proof of a discriminatory intent or motive by the defendant, the court dismissed Fragante’s complaint. Fragante appealed.] TROTT, C. J…. I. The Statute and Its Purpose Preliminarily, we do well to remember that this country was founded and has been built in large measure by people from other lands, many of whom came here—especially after our early beginnings—with a limited knowledge of English. This flow of immigrants has continued and has been encouraged over the years. From its inception, the United States of America has been a dream to many around the world. We hold out promises of freedom, equality, and economic opportunity to many who only know these words as concepts. It would be more than ironic if we followed up our invitation to people such as Manuel Fragante with a closed economic door based on national origin discrimination. It is no surprise that Title VII speaks to this issue and clearly articulates the policy of our nation: unlawful discrimination based on national origin shall not be permitted to exist in the workplace. But, it is also true that there is another important aspect of Title VII: the “preservation of an employer’s remaining freedom of choice.” … Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion problem, but the candidate’s inability to measure up to the communications skills demanded by the job. We encourage a very searching look by the district courts at such a claim. An adverse employment decision may be predicated upon an individual’s accent when—but only when—it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance. EEOC Compliance Manual (CCH) ¶ 4035 at 3877-78 (1986); see also Mejia v. New York Sheraton Hotel, 459 F. Supp. 375, 377 (S.D.N.Y. 1978) (Dominican chambermaid properly denied promotion to front desk because of her “inability to articulate clearly or coherently and to make herself adequately understood in … English”); Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 10th Cir. 1984) (plaintiff with a “noticeable” Filipino accent was improperly denied a position as supervisor of a dental laboratory where his accent did not interfere with his ability to perform supervisory tasks); Berke, 628 F.2d at 981 (employee with “pronounced” Polish accent whose command of English was “well above that of the average adult American” was improperly denied two positions because of her accent)…. … In a letter, dated June 28, 1982, the reasons why he was not selected were articulated as follows: As to the reason for your non-selection we felt the two selected applicants were both superior in their verbal communication ability. As we indicated in your interview, our clerks are constantly dealing with the public and the ability to speak clearly is one of the most important skills required for the position. Therefore, while we were impressed with your educational and employment history, we felt the applicants selected would be better able to work in our office because of their communication skills. The interviewers’ record discloses Fragante’s third place ranking was based on his “pronounced accent which is difficult to understand.” Indeed, Fragante can point to no facts which indicate that his ranking was based on factors other than his inability to communicate effectively with the public. This view was shared by the district court…. Fragante argues the district court erred in considering “listener prejudice” as a legitimate, nondiscriminatory reason for failure to hire. We find, however, that the district court did not determine defendants refused to hire Fragante on the basis that some listeners would “turn off” a Filipino accent. The district court after trial noted that: “Fragante, in fact, has a difficult manner of pronunciation and the Court further finds as a fact from his general testimony that he would often not respond directly to the questions as propounded….” In sum, the record conclusively shows that Fragante was passed over because of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent. The district court is Affirmed.
Q1. Why do courts take a very careful look at nonselection decisions based on foreign accents?
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.