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Unequal treatment may result from cognitive or unconscious bias,

rather than deliberate, intentional exclusion. “Second generation”

claims involve social practices and patterns of interaction among

groups within the workplace that, over time, exclude no dominant

groups. Exclusion is frequently difficult to trace directly to

intentional, discrete actions of particular actors, and may sometimes

be visible only in the aggregate.

(Sturm 2001: 460)^4

In terms of language-focused discrimination, Title VII has one large
limitation: Under the law as it currently stands, only those language traits
tied to a national origin outside the U.S. are covered. If a person from
Sweden, Thailand or South Africa believes he or she has been
discriminated against on the basis of accent, the EEOC provides advice
and legal assistance. A person from Appalachia, on the other hand, would
have no recourse under Title VII. Appalachian English cannot be
identified as originating outside the U.S. in any way that would satisfy the
courts.
There is little consistency in the way the courts approach issues of
communication and accent. One assumes that the legal system is unbiased,
and sometimes there is evidence of that. Just as often, however, the courts
are willing to put their own beliefs and language ideologies first, even
when those beliefs are directly contradicted by expert testimony (see
especially Fragante, below).
In the current day it is hard to imagine a judge or jury simply refusing
to believe testimony from a geneticist, biochemist, or DNA expert. But
language is deceptively approachable, and everyone who has reached a
certain level of education feels empowered. As we will see in the Kahakua
case, a judge may choose to believe one expert over another simply
because one of them provides an opinion that very closely matches his
own personal opinions.
Rarely do the courts explore the meaning of the word “communication,”
nor are there any widely accepted and used methodologies to assess the
communication demands of a given job in a non-prejudicial way.