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Today, our employment discrimination lawyers take a look at Lorenzo v. Austin, No. 21-56381, 2022 WL 16707188 (9th Cir. Nov. 4, 2022), a recent case out of the United States Court of Appeals for the Ninth Circuit. In this case, the plaintiff-employee, Virgil Lorenzo, was fired from his job working for the Department of Defense school in Okinawa, Japan as a middle school science teacher. Lorenzo sued for national origin discrimination based on an email that his principal forwarded to him from a parent, which read: “Mr. Lorenzo, Please contact [parent] about setting up a conference to discuss [student]. She has some concern’s [sic] about your accent and [student] understanding some of the concepts covered. Thank you.” Id. at *1 (alterations in original).

As regular readers of our employment blogs best know, employers cannot legally defer to the prejudices of its customers. (Best Law Read: Can I Be Fired For Reporting Racist Customers?; Are Employers Liable For Harassment By Customers?; What Can I Do About Racist Customers? I Need The Top Race Discrimination Lawyers In Ohio!; Race Discrimination: Employers Still Cannot Blame Customers! I Need A Lawyer!).

The school defended the case by saying that the reason for termination had nothing to do with the parent’s concerns, which it also argued was legally permissible. The employer also argued that Lorenzo had performance issues during his probationary period. Lorenzo argued that because the so-called accent email came in close temporal proximity (which is fancy legal of saying close in time), the Court should let the jury decide if he was discriminated against.

What laws prevent national origin discrimination at work?

Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment based on an employee’s or applicant’s national origin. This includes discrimination or harassment based on certain characteristics associated with the employee’s national origin. Thus, under Title VII, employers cannot refuse to hire, refuse to promote, or wrongfully fire and employee because of that worker’s nation origin.

Can my manager refuse to promote me or fire me because of my accent?

As with many legal questions, the answer depends on the particular circumstances. If the job in question does not have clear communication requirements as a central function of the job, discrimination based on an employee’s accent should be unlawful. Likewise, it should always be a Title VII violation when a manager or supervisor harasses an employee based on his or her accent. However, 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.” Fragante v. City & Cnty. of Honolulu, 888 F.2d 591, 596–97 (9th Cir. 1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990).

Because any evaluation of an employee’s ability to communicate effectively is intrinsically subjective, district courts have be instructed to be very weary of employer’s who base employment decisions on communication issues. Specifically, in Fragante, the United States Court of Appeals for the Ninth Circuit further held:

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 district courts at such a claim.

Id. at 596.  Thus, if an employer’s claim that the worker’s communication skills are inadequate is just a code for references to his accent, such a claim should not qualify as a legitimate nondiscriminatory reason because “an individual has the … linguistic characteristics of a national group.” Title 29 C.F.R. § 1606. Yet, this will be decided on a case-by-case basis.

For example, in Mejia v. New York Sheraton Hotel, 459 F.Supp. 375, 377 (S.D.N.Y.1978), the United Stated District Court for the Southern District of New York held that a Dominican chambermaid was no ulawfully denied promotion to front desk because of her “inability to articulate clearly or coherently and to make herself adequately understood in … English.”

While in Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir.1984), the United States Court of Appeals for the Tenth Circuit held that an employee with a “noticeable” Filipino accent was wrongfully and unlawfully denied a promotion to a dental laboratory supervisory position because his accent did not interfere with his ability to perform the job. The United States Court of Appeals for the Tenth Circuit held: “A foreign accent that does not interfere with a Title VII claimant’s ability to perform duties of the position he has been denied is not a legitimate justification for adverse employment decisions.” Id.

In Berke v. Ohio Dept. of Public Welfare, 628 F.2d 980, 981 (6th Cir.1980), the United States Court of Appeals for the Sixth Circuit held that an employee made a prima facie case of national origin discrimination because she was improperly denied two positions due to her “pronounced” Polish despite her command of English being “well above that of the average adult American.”

In Akouri v. State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir.2005), the United States Court of Appeals for the Eleventh Circuit held that a supervisor rejecting a Lebanese employee for a promotion while stating the white co-workers were “not going to take orders from you, especially if you have an accent” is direct evidence of discrimination.

On the other hand, in Tseng v. Fla. A & M Univ., 380 Fed.Appx. 908, 909 (11th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2161, 179 L.Ed.2d 936 (2011), the same Eleventh Circuit also held that “an employee’s heavy accent or difficulty with spoken English can be a legitimate basis for adverse employment action where effective communication skills are reasonably related to job performance.” In doing so in this case, the Eleventh Circuit held that a supervisor’s comments that a Taiwanese professor’s accent was difficult to understand and that he needed to work on his English skills in order to properly teach were not direct evidence of discrimination because no disparaging remarks were made about Taiwanese generally and none of the statements specifically referred to Tseng’s nationality.

And, in  Jiminez v. Mary Washington College, 57 F.3d 369, 380 (4th Cir.1995), the United States Court of Appeals for the Fourth Circuit held that “requiring that a professor speak the native tongue in order to convey his ideas is not any form of discrimination, invidious or otherwise.”

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What happened to Lorenzo’s case?

Citing Fragante, the United States Court of Appeals for the Ninth Circuit held that it was not discrimination to pass along a parent’s concern about understanding a teacher die to a heavy accent: “The text of the email conveys only that the principal wanted Lorenzo to meet with a parent who believed her child was having difficulty understanding Lorenzo’s accent in class—a facially legitimate concern.” Lorenzo at *1.

Therefore, regardless of timing, the Ninth Circuit held that this “accent email” could not independently create a claim for national origin discrimination.

Just to make sure that the claim is dead and buried, the United States Court of Appeals for the Ninth Circuit further rejected the timing argument:

Moreover, temporal proximity does not indicate causation under the circumstances. Since Lorenzo’s probationary employment lasted only four months, the events at issue generally occur as close to his August 10, 2010, hiring as to his December 17, 2010, termination. Moreover, the September 23 “accent” email was sent after the principal had already began giving Lorenzo “support and specific directions.” Further, the school received a number of other parent and student concerns regarding Lorenzo’s teaching practices that were unrelated to Lorenzo’s accent. The school’s termination decision followed a reasonable chronology of escalating support, counseling, and intervention.

Id.

Do I have a claim for national origin discrimination because I was fired today because of my accent?

Best National Origin Discrimination Lawyer Answer: As you may have gathered from the law above, the Lorenzo Court relied heavily on the fact that the employee was a teacher. Employment decisions, including wrongful terminations, based on accents for other positions may likely raise significant legal concerns. The only way for you to truly know about your legal rights based on your situation is to best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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