May 2, 2006

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?

April 8, 2006

How Employers Are Forced to Hire Murderers and Other Felons

[Originally appeared in the Wall Street Journal, "Rule of Law" column, June 18, 1997]

Viewers of Good Morning America and NBC Nightly News recently got to meet 25-year-old Hassan Smith, who wants to become a Boston cop but faces a small obstacle: Nine years ago he gunned down a young man on a Roxbury street in a gang dispute. Boston police commissioner Paul Evans vows "over my dead body" will the convicted killer get a city badge and 9-mm Glock.

But city officials may have no choice but to hire Mr. Smith, assuming he makes it past the exams. Not only does Massachusetts law appear to instruct cities to disregard juvenile records in hiring for public service jobs, but a variety of other laws make it legally hazardous for employers, public or private, to turn away job applicants with serious rap sheets.

Consider the trouble a Wisconsin nursing home ran into recently. Last October an ambulance rushed 23-year-old Melinda Belden’s newborn to the hospital after it had stopped breathing, police said, from inhaling fumes from the crack cocaine the mother had been smoking. When the Marquardt Memorial Manor in Watertown withdrew its job offer to Ms. Belden, she filed a complaint. In April the state civil rights agency found probable cause to support her claim, saying the nursing home had not done enough to establish that the pending charges of felony child endangerment were substantially related to a job at a nursing home -- helpless old people apparently being legally distinguishable in its view from helpless young people. The case was dropped when Ms. Belden failed to pursue it.

The federal Equal Employment Opportunity Commission has long considered unlawful any general employer policy of turning away persons convicted or charged with serious crimes. "Because it disproportionately excludes members of certain groups from being hired, it can be looked at as discrimination", the commission’s Kelly Goode told a Knight-Ridder reporter in 1995. Blacks and Hispanics are more likely to have records than whites.

Police forces are no exception. The police commissioner of Cambridge, Mass. made headlines a few years back by threatening to resign after City Hall leaned on him to hire eight recruits whose rap sheets sported such charges as assault and battery and receiving stolen property. "If you bypass someone for a minor criminal offense, that person can challenge you and get a restraining order, tying up the whole list," explained the city manager.

The EEOC supposedly lets employers take into account convictions that are recent, serious and "job-related". Thus it says a just-paroled embezzler needn’t be offered a bookkeeping job. But it takes an ultra-narrow view of what is job-related. In a 1989 case it demanded a trucking company hire felons to handle "high-risk" freight such as computers. It lost in court after federal judge Jose Gonzalez acidly noted that if applicants "do not wish to be discriminated against because they have been convicted of theft then they should stop stealing".

But few employers want to spend years and fortunes in court validating such a policy -- or risk a big back pay award should a court disagree with them. When it doubt, an employer has an incentive to take the applicant. Even asking about criminal records can get an employer sued.

Advocates of compulsory felon-hiring sometimes portray critics in the role of the vengeful Inspector Javert of "Les Miserables". To give employers more freedom in these matters would be to "deny someone a reason to earn a living forever," says Wisconsin state senator Gwen Moore (D., Milwaukee). "This says they can never be rehabilitated." That might be a fair criticism of a law that required employers to reject convicts. But the issue here is whether each employer should be free to weigh the pros and (so to speak) cons for himself.

Plenty of jobs will remain open to the jailbird gone straight, who needs to convince only one employer of his reformed character -- rather than, as at present, invoke legal compulsion to dodge such inquiries entirely. Thus in one early case a theft-plagued New Orleans hotel fought for years in court for its right not to employ as a bellman someone who’d been convicted of receiving stolen goods; yet it was happy to offer him a comparably paid job that did not involve access to guests' luggage and rooms.

Much of the American legal establishment staunchly backs criminals’ hiring rights. In Wisconsin the state bar recently sent out letters strenuously opposing any effort to give employers more freedom to consider records. Last year the state’s docket of 3,000 job-bias complaints included 51 complaining of discrimination based on convictions and 42 based on arrests.

Not that "unfortunate situations", to borrow Hassan Smith’s description of the murder he committed, won’t sometimes recur. Randy Don Landin, who worked for Honeywell Corp., strangled his girlfriend, a co-worker at the company, served four years in prison and was released. The company rehired him. Bad news for co-worker Kathleen Nesser. When she rejected Landin’s romantic overtures, he harassed and threatened her for weeks, then killed her with a shotgun blast in her driveway. Asked about the rehiring decision after the second murder, a Honeywell spokesman explained: "The philosophy we have is that we don’t discriminate when it comes to hiring practices".

Of course, organized lawyers have their own solution to such recidivism: big injury lawsuits against the employer by the victims or their families, thus helping to perfect the sued-if-you-do, sued-if-you-don’t regime we impose on hapless businesses. Such claims are "going to be a huge issue," predicted a New York City attorney who won a big settlement for a department store employee assaulted by a co-worker.

Boston feminists called for wider rights to file lawsuits after a case where a supermarket employee was raped. "We want employers to investigate the backgrounds of employees more thoroughly," said the head of the local chapter of the National Organization for Women, apparently unaware that NOW’s allies in the civil-rights movement had erected one obstacle after another to such investigations.

As she put it: "If an employer is not going to look out for the safety of employees, who is?"