by Joseph Cooper
Title VII of the Civil Rights Act of 1964 forbids discrimination on the basis of national origin in any aspect of employment, including hiring, firing, and job assignments. Because an employee’s accent or language skills are often associated with her national origin, employment decisions based on those characteristics are scrutinized closely by courts and administrative tribunals. A recent decision from the Rhode Island Commission for Human Rights (RICHR) illustrates that point.
Teacher wants to take English classes
Hortencia Zabala was a tenured math teacher at Alvarez High School in Providence in 2010 when she requested a paid sabbatical to study at Providence College and Johnson and Wales University. She proposed a sabbatical during which she would take both mathematics courses and classes to improve her English skills, including English composition, English communication skills, and advanced composition and communication.
At the time of her sabbatical request, Zabala had taught for nine consecutive years. She had received a positive performance evaluation in 2008. Nevertheless, her sabbatical request was denied, and she suffered a series of additional adverse employment actions thereafter.
According to the RICHR, the principal at Zabala’s school orchestrated several negative performance evaluations and a “Non-Evaluation Year Intervention.” Those actions were subsequently used as the basis for recommending her termination and ultimately resulted in her forced departure from Alvarez High School.
Zabala filed a discrimination charge with the RICHR against the Providence School Department and the principal of Alvarez High School, among others, alleging that the adverse employment action taken against her was motivated by her accent. As a result, she argued, it constituted unlawful discrimination on the basis of national origin.
Denial of sabbatical was illegally based on accent
The school department argued that Zabala’s sabbatical request was denied because her course of study included classes outside her content area. It also argued that the subsequent adverse employment actions were taken because of concerns that her effectiveness as a teacher was undermined by her inability to communicate with her students.
The RICHR found that those reasons were merely a pretext, or an excuse, to disguise discriminatory motivation. First, it found that the relevant provisions in Zabala’s collective bargaining agreement did not require sabbatical courses to be limited to a teacher’s specific content area. Moreover, in her performance observations, Zabala was explicitly encouraged to improve her English communication skills.
Second, the RICHR noted that the Providence School Department had treated a similarly situated non-Hispanic employee differently. The superintendent had previously approved a sabbatical course of study for a non-Hispanic guidance counselor to take Spanish courses, which were not part of the guidance counselor’s content area.
Most important, Zabala introduced credible evidence to rebut the claim that her accent significantly interfered with the performance of her job duties. A fellow teacher testified that Zabala was able to explain difficult mathematical concepts using simple words. Two students testified that despite having a thick accent, Zabala was an effective teacher “for those students who were willing to learn.”
The RICHR concluded that the principal and the Providence School Department targeted Zabala for adverse employment action based on her accent. Because her accent didn’t significantly interfere with the performance of her official duties, the adverse action constituted unlawful national origin discrimination. Zabala v. Providence School Department, et al., R.I. Commission for Human Rights (Docket No. 12 EAG 054) (Oct. 1, 2014) (Lawyers Weekly No. 71-003-14).
When do accent or English skills matter?
In certain situations, it’s lawful for an employer to take a person’s accent or English language skills into account when making hiring or promotion decisions. For example, schoolteachers and customer service representatives are positions that require clear oral communication. It wouldn’t be discriminatory to make employment decisions based on an employee’s language skills if she is unable to communicate clearly enough to perform her job duties.
However, strongly accented English does not, by itself, significantly interfere with an employee’s ability to perform her duties. If the employee’s accent doesn’t substantially impair her ability to be understood, adverse employment actions taken on the basis of her accent may constitute unlawful national origin discrimination. On the other hand, federal courts interpreting Title VII have established that when an employee’s accent significantly interferes with her job performance, the employer may legitimately consider it when making employment decisions.
This decision from the RICHR illustrates that an adverse employment action may be vulnerable to several lines of inquiry in later proceedings. If the employee can produce credible evidence that her performance wasn’t significantly hindered by her accent—including performance reviews or coworker testimony—then adverse employment actions based even partially on issues related to her accent or 
language skills may expose the employer to charges of national origin discrimination.
Joseph Cooper is an attorney with Whelan, Corrente, Kinder & Siket LLP. He may be contacted at jcooper@whelankindersiket.com.
My big question is what incompetent expert provided counsel and guidance to the principal at this school? The facts of the case, as presented, are kind of no brainer stuff. Sounds like others who made these bone headed decisions need to be ones terminated.