Court Rules: Promote Employees with Foreign Accents 09-05-2007
By Ann F. Kiernan, Esq.
When can you refuse to hire or promote an employee who has a foreign accent? According to a recent case against FedEx, almost never.
Jose Rodriguez, a FedEx driver who spoke fluent but accented English, told his supervisor he was interested in a promotion, and he enrolled in FedEx's leadership course. While taking the course, three supervisor positions became vacant. Mr. Rodriguez applied, was interviewed, and rejected.
The hiring manager said Mr. Rodriguez was qualified and testified he would have selected him, but that his boss said his "[Hispanic] accent and speech pattern would adversely impact Rodriguez's ability to rise through the company ranks." The Sixth Circuit Court of Appeals noted that "accent and national origin are inextricably intertwined" and held that the supervisor's comments were "direct evidence of national origin discrimination." This means that at trial, FedEx will have to prove to the jury that it would have refused to promote Mr. Rodriguez for a legitimate business reason - a very tough evidentiary burden in this case. Rodriguez v. FedEx Freight East, Inc., 487 F.3d 1001 (6th Cir. 2007)
What this means to you: Does this mean you can never consider a foreign accent when making hiring, firing or promotion decisions? The short answer is "no." BUT, in order to consider it as a basis for an employment action, you must be able to demonstrate a legitimate business reason, based on objective, verifiable facts. Note that in this case, the argument the employer made was lack of "promotability." It is never a good idea to deny a job to someone based on their perceived qualifications for a future job they might or might not apply for. The idea that someone must be promotable up the chain is unlikely to be considered a legitimate business reason except for a few jobs at the highest levels of the company.
As the Rodriguez court noted, the EEOC has issued compliance guidance (available here) which lays out some helpful examples of when it is lawful to consider a foreign accent and when it is illegal discrimination.
This case stresses how important it is for employers to train managers and supervisors to avoid making comments about employees that could be interpreted as disparaging their background or national origin. Make sure you have the tools you need to interview and hire applicants. Take our half-day program, Hiring the Best, or our full-day course on legal strategies for managers, Managing Within the Law I.
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Case decisions cited here may be reversed. Please
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