Outside that interview office, I never encountered any
communication problem with anybody in Hawai’i or on the mainland.
(Matsuda 1991: 1335)The district court did not question any of the decisions made by the
defendant, and based on their own interview with Fragante, decided that he
was “hampered by his accent or manner of speaking.”
This is another example of how courts are willing to depend on their
own often factually incorrect or biased understanding of language issues:
Fragante argues the district court erred in considering “listener
prejudice” as a legitimate, nondiscriminatory reason for failing to
hire. We find, however, that the district court did not determine
Defendants refused to hire Fragante on the basis that some listeners
would “turn off” a Filipino accent. The district court after trial noted
that: “Fragante, in fact, has a difficult manner of pronunciation.”
(Fragante v. Honolulu 1989)The judge rejected the testimony of the linguist who testified about
Hawai’ian Creole in support of the plaintiff. The linguist, the judge stated,
was not an expert in speech (Matsuda 1991: 1345–1346).^14
People in the judicial system do not leave their experiences or culture
behind when they go to work. The guards at the door, the office clerks, the
judges – everyone has a personal history through which all new
information is filtered, no matter how dedicated each person is to doing
their job well. In Fragante, the issue of racism might have been raised, but
there is no trace of it in any of the published documents about the case. It
seems as though the courts are unaware of racism within a particular
group, as here, where one Asian group dominated and discriminated
against other Asian ethnicities (Anheta 2006; Kim et al. 2008; Okamura
2010; Tiongson et al. 2006). In Hawai’i, there is a long history of
discrimination toward Filipinos, particularly by other Asians.^15
Fragante and Kahakua have something in common, beyond the fact that
they both lost their court cases. Filipinos and native Hawaiians tend to be
poor, and both groups are low in social prestige and (for the most part)
political power. National origin discrimination linked to language trait is
hard to prove, but in some contexts it would seem to be impossible.