Language Issues in Employment Law
By Natalie Tupta, Staff Writer
Whenever you open your mouth to speak or write out and email, you don’t just communicate the content of the messages you’re trying to get across; you tell those who interact with you about yourself through your language. We infer a host of information about another person’s identity from their written and spoken language use, like their age, gender, social class, education level, and geographic region of origin. For example, someone who speaks or writes using Standard English, the language we learn at school, signals that they are educated. A person who uses Appalachian English tells listeners where they are from. We then use these linguistic clues to make inferences about others to inform our relationships with them. For example, we might be more romantically attracted someone because of their accent.[1]
This phenomenon of making inferences about others based solely on their speech or writing is called linguistic profiling.[2] The amount of language we need to make judgments about others is surprisingly small. For example, in a study conducted on students at the University of Delaware, linguists determined the students could correctly identify whether a speaker was using standard American English, African American vernacular English, or Chicano English 70% of the time – only from hearing a clip of the speaker saying “hello.”[3]
Linguistic diversity is a reality in the United States because there are so many regional dialects, as well as languages used by immigrants and Native American populations alike. While such rich diversity can be beautiful and interesting, language use raises complex issues of fairness and equality in law, particularly in employment. According to Title VII of the Civil Rights Act, employers may not refuse to hire a person or discriminate against them in terms of “compensation, terms conditions, or privileges of employment” on the basis of “race, color, religion, sex, or national origin.”[4] But to what extent should language be an acceptable basis for employers to discriminate?
In many cases, the linguistic profiling that occurs in an employment context involved language use which could be linked to characteristics protected under Title VII. For example, in Xieng v. Peoples National Bank, a Cambodian-American man was not officially promoted to a job whose duties he was already performing well, and his supervisor told him the reason was that he did not “speak ‘American.’”[5] In this case, the man’s language use was so intimately related to his national origin that he was eligible for protection under Title VII. Consider also a story from a doctoral student who recounted the following experience from her fieldwork:
The passenger in the seat next to mine [on the plane] asked about the stereo, and I explained briefly about [the recording equipment] . . . He told me that he worked in sales for a large company in San Diego, and that it was his job to hire salesmen. He told me quite frankly that he would never hire anyone with a strong foreign accent, and especially not a Mexican accent. I asked him why. His only response was, ‘That’s smart business. I have to think of the customers. I wouldn’t buy anything from a guy with a Mexican accent.’[6]
In these two instances, the language use in question would signal that the speaker is from a different country, so the Title VII provision for “national origin” protects the party who has (or would be) discriminated against.
The Title VII provision of “race” is sometimes more challenging to apply to discrimination cases. Although there are no anatomical differences among races which necessarily differentiate people’s linguistic abilities[7], there are linguistic groups in the United States which are largely race-based, like African American vernacular English, Hispanic English, and Chinglish. There are several Title VII race claims where language played a role. For example, in Upshaw v. Dallas Heart Group, P.A.[8], a woman sued her former employer for firing her based on her race, testifying that she heard from coworkers that her superiors said she “‘sounded too black.’” In EEOC v. La. Network, testimony about a broadcast journalist’s job performance by her coworker revealed that a superior’s comments may have essentially criticized the journalist for not sounding “white enough.”[9] And in Massey v. Protective Agency, Inc.[10] an employer wrote “‘sound good – black?’” on a woman’s employment application, presumably after a telephone conversation with the applicant. In the first two examples, the evidence was not considered in the decision since they were hearsay; however, these comments play a small but important role in court opinions, as they highlight a deficiency in the public understanding of what to make of “sounding black” as opposed to being black.
The question of how to treat linguistic profiling issues not covered under Title VII which arise in employment scenarios is perhaps clearer when there is no concomitant race or national origin question. The following hiring story from a professor originally from the South illustrates such linguistic profiling:
‘I got an interview with an extremely elite undergraduate college in the northeast. They conducted the first substantial part of the interview in [another language] and it went well. When they switched to a question in English, my first answer completely interrupted the interview . . . they broke out laughing for a while. I asked what was wrong and they said they “never would have expected” me to have such an accent. They made a big deal about me having a [prestigious accent in the second language] and such a strong Southern accent. . . After that, I got a number of questions about whether I’d “be comfortable” at their institution. Subtle, but to me it was not ambiguous.’[11]
The employers’ discrimination in this instance is clearly based on language use and does not fall under any of the Title VII provisions. The professor’s Southern English ostensibly signaled negative personal characteristics to the hiring committee, and the question remains whether this type of language-based discrimination should be legal. After all, despite many negative stereotypes about them[12], people who speak Southern English are not inherently less qualified than those who speak Standard English or any other dialect.
Many would argue that language use is simply an issue of job competency. Language use can play an important role in an employee’s job performance. For example, news reporters must use pitch, tone, and diction appropriate to communicate broadcasts.[13] Salespeople need to use the language necessary to communicate effectively with their customers. Lawyers must use the terms of art and the conventions of standard language necessary to communicate their arguments. In the professor’s hiring example, the university hiring committee would argue that a faculty member whose language use suggests un-academic characteristics reflects poorly on the university, and the law would permit them not to hire him on this basis. These competency issues are addressed in cases where linguistic profiling is intertwined with racial and national origin issues, and Title VII allows employers to make employment decisions on the basis of religion, sex, or national origin in instances where these factors are “a bona fide occupational qualification.”[14]
One such instance of racial and linguistic discrimination is found in Ferrill v. Parker Group, Inc., where a telephone marketing corporation had formed a contract with a gubernatorial candidate to make race-matched “get-out-the-vote” calls.[15] In this “race-matched” calling, black employees called black voters and read a distinctly “black script,” whereas white employees called white voters and read a “white” script[16]. After the elections, there was a “reduction in force” and the plaintiff, an African American woman, was laid off[17]. The court considered Ferrill a race discrimination claim, but it is more appropriately classified a language discrimination claim since the woman was hired for her ability to use racially marked language; a white person who speaks African American vernacular English would have been equally qualified for the position, since all interactions were conducted over the phone.
It is crucial to note what the plaintiff in Ferrill and the professor at the university interview have in common: In both instances, the person’s potential value as an employee was reduced to their language use. The professor may have been well-qualified, but his Southern accent was a deal breaker for the hiring committee. On the other hand, the African American woman’s ability to speak African American vernacular English was the most important qualification because her role as an employee would be to call other African Americans. The injustice exemplified in these examples is simple but not so obvious: The hiring decisions are made based on the employer’s expectation that their clients would react adversely to their employee’s race or place of origin. That is, the marketing company relied on the assumption that white voters “would not respond favorably to black callers,”[18] and the university hiring committed assumed the professor’s students and coworkers would discount his expertise because he was Southern.
Such underlying assumption of prejudice should not be the basis for hiring decisions. Title VII disallows discrimination which assumes prejudice explicitly based on other factors like race and religion, yet it permits discrimination where language alone is the basis for the assumption of prejudice. The law ought to protect people from discrimination on the basis of language discrimination where adverse employment decisions would be made based on the employer’s expectation for illegal prejudice on the part of their clients.
[1] Randee Dawn, The sexiest accent in the world is…, Today Health and Wellness (2015). Available at: http://www.today.com/health/sexiest-accent-world-t1846
[2] See Dawn L. Smalls, Linguistic Profiling and the Law, 15 Stan. L. & Pol’y Rev. 579 (2004).
[3] Thomas Purnell, William Idsardi & John Baugh, Perceptual and Phonetic Experiments on American English Dialect Identification (Journal of Language and Social Psychology 18(1), 1999).
[4] 42 U.S.C. § 2000e-2(a). Available on the U.S. Equal Employment Opportunity Commission’s website at: http://www.eeoc.gov/laws/statutes/titlevii.cfm.
[5] 821 P.2d 520, 577 (Ct. App. Wa. 1991), affirmed in Xieng v. Peoples Nat’l Bank, 844 P.2d 389 (Wa. 1993).
[6] Lori Lea Spicher, Language Attitudes Towards Speakers with a Mexican Accent: Ramifications in the Business Community,” Ph.D dissertation, The University of Texas at Austin (1992). (Cited in Rosina Lippi-Green, Language ideology and language prejudice. In E. Finnegan & J.R. Rickford (Eds.), Language in the USA: Themes for the Twenty-First Century. Cambridge University Press (2004))
[7] Purnell, supra at 20.
[8] 961 F. Supp. 997, 1000 (N.D. TX 1997).
[9] EEOC v. La. Network, 809 F. Supp. 1210, 1223 (M.D. LA 1992).
[10] 772 F. Supp. 267, 269 (W.D. NC 1991).
[11] Rosina Lippi-Green, English with an Accent: Language, Ideology, and Discrimination in the United States, 290, Routledge (1997).
[12] See, e.g., Whet Moser, Southern Accents Are ‘Nice,’ Northern Accents Are ‘Smart’ and ‘In Charge,’ Even to Little Kids, Chicago Magazine (2012).
[13] See EEOC v. La. Network, 809 F. Supp. 1210, 1217 (M.D. LA 1992).
[14] 42 U.S.C. § 2000e-2(e).
[15] 168 F.3d 468, 471 (1999).
[16] Id.
[17] Id.
[18] 15 Stan. L. & Pol’y Rev. at 582.
