WASHINGTON — A job applicant who speaks English with a thick foreign accent may be denied employment without violating federal anti-discrimination laws, according to a ruling that the Supreme Court let stand on Monday.
The Civil Rights Act of 1964 forbids job discrimination based on an individual's "national origin," race, sex or religion. But the U.S. 9th Circuit Court of Appeals ruled that the act is not violated if an employer refuses to hire someone whose accent "interferes materially" with his ability to perform a job.
The court did not try to specify how strong an accent must be before an employer is justified in refusing to hire a job applicant. The court stressed, however, that such a refusal is allowed only if an essential part of the job involves speaking to the public.
"There is nothing improper about an employer making an \o7 honest \f7 assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance," Judge Stephen S. Trott had written for the federal appeals court based in San Francisco.
Lawyers for Manuel Fragante, a 66-year-old Filipino-American, condemned the high court for refusing to hear an appeal.
"I think this sets a dangerous precedent," said William D. Hoshijo, a Honolulu attorney. "This leaves the standard very unclear. It is up to the subjective judgment of the employer," he said.
Hoshijo said he would not have challenged the job rejection if Fragante did not speak English. But, he said, Fragante "is an educated, articulate English speaker who speaks with an accent."
The case arose when Fragante, a retired Philippine military officer with a college degree and a law school education, sought a clerical job in the Department of Motor Vehicles in Honolulu. He scored well on a written civil service examination but ran into trouble in two personal interviews.
One interviewer noted that Fragante had a solid professional background but "speaks with a very pronounced accent which is difficult to understand." A second interviewer said he had "a heavy Filipino accent," which would make him "difficult to understand over the telephone."
The job Fragante was seeking required answering questions and fielding complaints over the counter and on the telephone. Based on the interviewers' assessments, city officials rejected Fragante and hired an applicant who had scored lower on the civil service test.
Fragante filed a suit in federal court in Honolulu charging a violation of the 1964 Civil Rights Act. He lost before a trial judge and appealed to the 9th Circuit Court in San Francisco. Fragante's appeal was supported by both the U.S. Equal Employment Opportunity Commission and the Mexican American Legal Defense and Educational Fund based in Los Angeles, but a three-judge panel upheld the ruling.
"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," wrote Trott, who was a top Justice Department official in the Ronald Reagan Administration.
Lawyers for Fragante urged the high court to hear his appeal and to clarify whether discrimination based on a foreign accent violates federal law.
But, without comment, the justices rejected the appeal. The high court rejection sets no binding national precedent. However, the 9th Circuit Court opinion is binding in California, Arizona, Oregon, Washington, Nevada, Montana, Idaho, Alaska and Hawaii. (Fragante vs. City of Honolulu, 89-1350.)
In Los Angeles, J Craig Fong, a director of the Asian Pacific American Legal Center of Southern California, said that letting the 9th Circuit's ruling stand gives "tacit approval" to discriminate because of someone's accent.
"The problem is this type of ruling enables employers to subjectively deny employment because of the perceived inability of others to understand someone's accent," Fong said.
Kathryn Imahara, the director of the center's legal rights project, said that, in ruling against Fragante, the 9th Circuit had failed to set guidelines for what constitutes material interference with an individual's ability to do a job.
As a result, Imahara said, the 9th Circuit's action "opens the door for invidious discrimination."
"An employer can now say: 'I don't understand your English.' That's the very scary part of it," she said.
Despite his loss in court, things have not turned out badly for Fragante, his lawyer said. He was hired by the state Department of Labor in a research and statistical job. "Ironically, one of the things he does is (take) telephone surveys," Hoshijo said.
In others cases Monday:
The court refused to consider whether a small town's ban on dancing at school violates the principle of separation of church and state.