Presuming Disparate Treatment: A Solution to Title VII’s Doctrinal Puzzle of Accent Discrimination

Abstract

In Professor Mari Matsuda’s article Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, Professor Matsuda identifies a doctrinal puzzle in the courts’ approach to accent discrimination cases: Courts recognize that accent discrimination can be a form of national origin discrimination, yet courts are overly deferential to employers’ claims that a plaintiff’s accent materially interferes with job performance. This puzzle persists in the doctrine today. This Comment builds on Professor Matsuda’s scholarship and argues that her proposed framework may not be fully responsive to all the various ways accent discrimination can be perpetuated. In particular, a phenomenon arises in accent discrimination where employers will accommodate other communication-related issues but will refuse to accommodate accent, a dynamic known as selective nonaccomodation. This Comment first explores the social science research on accent discrimination then explores selective nonaccomodation, as it appears in other forms of employment discrimination, including disability, pregnancy, breastfeeding, and family responsibilities. In response to selective nonaccomodation within the accent discrimination context, this Comment calls for a presumption of disparate treatment in cases where the plaintiff can show an employer failed to accommodated employees with accents but did accommodate employees who are similarly situated in terms of their comprehensibility in speaking English. This Comment concludes by applying the presumption to recent cases of accent discrimination, examining how the presumption would have changed the outcome in favor of plaintiffs and move our society closer to Professor Matsuda’s vision of linguistic tolerance and diversity.[pdf-embedder url="https://www.uclalawreview.org/wp-content/uploads/securepdfs/2024/07/04-Dimapasoc-No-Bleed.pdf" title="04 - Dimapasoc No-Bleed"]

 

About the Author

J.D., David J. Epstein Program in Public Interest Law & Policy & Critical Race Studies, UCLA School of Law, 2024; B.A., University of California, Davis, 2021. Thank you to Professor Noah Zatz for his indispensable guidance and constant encouragement that made this Comment possible. Your mentorship made me a better law student and will make me a better attorney. Thank you to Professor Joseph Fishkin for his Employment Discrimination course where I first encountered Professor Mari Matsuda’s article that serves as the inspiration for this Comment. Thank you also to the staff and editors of UCLA Law Review for their time and dedication to working with me in preparing my Comment for publication. Above all, a special thanks and much love to my parents Mary Jean and Zaldy, my sister Jeanell, and my grandma Betty for all their support and love in my pursuit of a career in law.

By LRIRE