Dive Brief:
- A nurse failed to show that her former employer's reasons for not rehiring her, including communication problems related to her accent, were pretext for national origin discrimination, the 10th U.S. Circuit Court of Appeals has ruled (Zu v. Avalon Health Care Inc., et al., No. 18-4153 (10th Cir., March 23, 2020)).
- Li Zu worked for Avalon Health Care at a skilled nursing facility. She received satisfactory performance reviews but eventually voluntarily terminated her employment when her authorization to work in the U.S. expired. After she renewed her authorization, she reapplied to Avalon. The position she sought, however, required strong communication skills and the company said it had hired someone better qualified. She sued and a district court granted summary judgment for the employer.
- On appeal, the 10th Circuit noted that a supervisor said Zu spoke English "with a thick accent and often has difficulty understanding others and making herself understood" and that the communication difficulties "caused considerable frustration and tension among doctors, residents and staff." Upholding the lower court's decision, the appeals court said Zu's performance appraisal — which "significantly" predated her departure and reapplication — provided support for the employer's stance that the communication problems made her less suitable than the other applicant.
Dive Insight:
Title VII of the Civil Rights Act of 1964 forbids discrimination in employment on the basis of national origin, among other characteristics. National origin discrimination involves treating applicants or employees negatively because of their country of origin, ethnicity or accent or because they appear to be of a certain ethnic background, according to the U.S. Equal Employment Opportunity Commission (EEOC). The Commission has noted that "employment decisions or harassment based on accent may violate Title VII" and that courts require employers to provide evidence, and not unsupported assertions, to explain such actions.
However, under Title VII, an employer may make a decision based on an individual's accent if the accent "interferes materially with job performance." To satisfy this standard, an employer must show that: effective spoken communication in English is required to perform job duties; and the individual's accent materially interferes with his or her ability to communicate in spoken English, according to the EEOC.
In determining whether an individual's accent "materially interferes" with his or her ability to do the job, an employer may need to point to documented workplace mistakes attributable to difficulty understanding the individual; assessments from several credible sources who are familiar with the individual and the job; or specific substandard job performance that is linked to failures in spoken communication, it has said.
And while adverse employment actions often include failure to hire or termination, employers may want to note that things like reassignment — at a client's request, for example — can amount to discrimination as well.