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Anti-Discrimination Ad Absurdum

[Originally appeared in the New York Post, August 24, 1997]

A mother in Long Beach, CA, gasps when her 12-year-old son comes back from the barber shop with his head shaved; he'd asked for just a trim, but the man with the clippers didn't speak English well. A Virginia woman finds shopping for a coffee table takes thirty minutes instead of ten "because I couldn't understand anyone and no one understood me." Students at Penn State struggle to keep up with lectures from a graduate instructor new to these shores.

With immigration at a historic high, such frustrations are mounting. Now the federal government and legal system are doing their bit to make things worse. They're hitting employers with lawsuits if they insist on strong communications skills among employees who deal with the public -- a practice that's being branded "accent discrimination."

A major investigation by USA Today in February found language hassles to be widespread, with nearly one in four poll respondents reporting problems in the last year because a clerk, salesman, or other business person spoke English poorly. "Economists say they lack of language proficiency costs businesses billions of dollars," the paper reports. In New York, the Giuliani administration has required remedial courses for cabbies who flunk a spoken-English test.

Yet Washington keeps pushing in the opposite direction. The immigrant-rights unit of the US Department of Justice has run subway and newspaper ads warning that the "ability to speak fluent English" must not "affect your decision about hiring a prospective employee."

Accent cases started making headlines in 1992 when a state court upheld a verdict against Seattle-based People's National Bank, which didn't think Cambodian-born Phanna Xieng had strong enough language skills for a post where he'd interact with irate customers turned down for loans. Xieng's lawyers brought in medical experts, who claimed the shock of not getting promoted was so psychologically traumatic it would prevent their client from working for at least five years. Presto: a $389,000 award.

The federal Equal Employment Opportunity Commission got into the act the same year, filing charges against a California company that had fired a credit manager with a strong Indian accent. Robert Gaskins, the company's former CEO, said customers had complained that Rambhai Patel's phone calls on overdue accounts were "rude and insensitive" as well as hard to understand. Rather than fight, Gaskins' company agreed to settle without admitting wrongdoing for $12,000 plus undisclosed damages.

Civil-rights enforcers admit there are situations where employers may legitimately consider accents; they just take an ultra-narrow view of what's legitimate. Thus the attorney general of Massachusetts ruled it would be unlawful for the town of Westfield to refuse to assign a teacher with a thick accent to a job where he'd be teaching language skills to first- and second-graders.

Influential law professors push the new line. Stanford's Mari Matsuda has proposed in the Yale Law Journal that employers be made to "accommodate" shortcomings in English, just as they're now made to accommodate deaf or blind employees. She says supervisors might try using written instructions, "sign language" and "pictographs."

Another widely cited piece, in the Harvard Law Review, claims that "difficulty in understanding those with less common accents is socially contingent, and . . . customers will ultimately adjust to the accented speaker if our civil-rights law insists that accented speakers be allowed to hold positions in which they regularly communicate with the public."

Won't it be a blueprint for frustration for customers to have to "adjust" to hundreds of different accents" Tough. It is "necessary to reject customer-preference arguments," argues Matsuda, a leader in the trendy Critical Race Theory movement. Barring accent discrimination in service jobs "will admittedly impose some hardship on businesses that rely heavily on pleasing customer whims" -- thus reducing to a mere "whim" humans' desire to communicate clearly with each other in transacting their affairs. If customers fail to understand an accent, she suggests, it might be their own fault for having "lived a monocultural life."

One great irony here is that many immigrants themselves support the idea of setting high standards of English proficiency. Not only do they realize the fluency is crucial to their children's success, but they keep running into that arch-frustration: dealing between novice English speakers whose original languages are not the same.

When the teacher-assignment controversy hit in Westfield, 400 parents in the heavily ethnic mill town signed a petition asking that instructors in early grades be proficient in "the accepted and standard use of pronunciation."

Mayor George Varelas, himself a Greek immigrant with a marked accent, backed the parents. "Persons like myself -- and I cannot be confused with someone from Boston or Alabama -- should not be" in charge of 5- and 6-year-olds' first language skills. "I would only impart my confusion and give them my defects in terms of language." A Boston Globe columnist called the parents "know nothings" and the state education commissioner charged them with "bigotry," but Varelas got sacks of supportive mail from around the country.

And now safety worries are cropping up. Queasy about the risk of medical flubs due to doctor-patient misunderstandings, the panel that certifies foreign-trained physicians has decided to test applicants on how well they communicate with patients, starting in July of next year.

Want to bet they'll get sued?