So the court has before it a Plaintiff who claims that his or her basic civil
liberties have been violated, and a Defendant – an employer – who claims
the right to make appropriate business decisions. How do courts handle
this conflict? What factors, legal and otherwise, play a role in the decision
making process?
In some cases one must assume that sometimes a Plaintiff will claim
language-focused discrimination when in fact none has taken place – or
there is insufficient evidence to persuade the court that there has been
discrimination. It also happens that a Plaintiff establishes that she has
been discriminated against, but the laws and court system are complicated,
and what looks like a minor slip could result in an early dismissal or the
lack of remedy for the Plaintiff. Sometimes it is hard to determine, on the
basis of case summaries available from legal databases, whether the
failure was factual, technical or ideological.
There may be clear evidence of language-focused discrimination which
the court overlooks because there is, in addition, a bona fide reason to
deny employment. However, as Cutler points out, employers are favorably
predisposed to potential employees who are “like” them, and less disposed
toward potential employees who are “unlike” them. Because the courts fail
to recognize this fact, and refuse to reject the validity of the personal
preference rationale, “Title VII becomes a statute which, at best, coerces
job applicants to assimilate and, at worst, keeps them jobless” (Cutler
1985: 1166).
I proceed from the point at which the Plaintiff and the Defendant have
made their cases, and the court must now decide whose argumentation
better fulfills the requirements set forth by the law. It is possible to trace
the influence of the standard ideology through much of the court’s
deliberations.
In the case summaries below, there are examples of successful and
unsuccessful Title VII language trait-based complaints. The chapter
concludes with an overview of the cases and the way ideology has
interfered (or failed to interfere) in the legal process.
Selected court cases^10