ability to communicate in English, rejecting the individual for the job
because of the accent would not violate Title VII.
(Equal Employment Opportunity Commission 2002)District courts have sometimes “shown some deference to the EEOC
guidelines or have at least used the guidelines to help inform their
analyses” but at the same time the courts are free to ignore the guidelines
and have sometimes simply denied their relevance (Robinson 2008: 1528).
A court that takes such a stance is making it easier for an employer to
defend his or her decision not to hire or promote. The employer is required
to convince the court that the decisions made were not discriminatory:
By demonstrating that the individual’s English language skills
were insufficient to meet the employer’s needs (Cutler 1985;
Matsuda 1991; Oppenheimer 2010; Robinson 2008; The Legal
Aid Society 2009; Vertreace 2010).
By establishing a bona fide occupational qualification (BFOQ).
The BFOQ is the more difficult case for the employer. The path
taken depends on which of two different theories of liability is
used. Disparate treatment, in which proof of discriminatory
intent is crucial, requires a BFOQ defense; for disparate impact,
in which such proof is not required, the employer must establish
only business necessity:The Plaintiff makes out a prima facie case by showing that the
employer’s selection device has a substantially adverse impact on his
protected group [...] it remains open to the plaintiff to show that
“other ... selection devices, without a similarly undesirable ... effect,
would also serve the employer’s legitimate interest[s].”
(Cutler 1985: 1169)The employer must convince the court that there was a legitimate business
necessity that precluded hiring the person in question. The trick is to find
and document what legal scholars call “second generation discrimination”
because “Trait discrimination of this sort is increasingly at the core of
Title VII litigation” (Yuracko 2006).