No Mere "Matter of Choice": The Harm of Accent Preferences and English-Only Rules*
Beard, Braden, Texas Law Review
Native-born members of democracies-perhaps driven by fears of economic and cultural usurpation-have long resented and felt threatened by immigrants.1 Even the United States, a country famously built by immigrants, has a history of hostility towards immigrants that stretches back centuries.2 Despite that widespread opposition, the number of immigrants to the United States is increasing all the time. 3 Each year, hundreds of thousands of immigrants move to the United States4 hoping to take advantage of the economic, societal, and educational opportunities this country has to offer. With more immigrants, more contact between native English speakers and those who speak English as a second language is inevitable. That contact has spurred a number of conflicts between native-born Americans and immigrants and their children.5 This Note will focus on the conflicts caused by the differences in languages of those two groups, particularly the problems caused by accent preferences and English-only rules.
Many employers have enacted "English-only rules" that prohibit the speaking of any languages other than English at work. Other employers have passed over immigrants 6 for employment opportunities because of their accents. These employers generally feel that they are justified in taking these actions based on the needs of their businesses, but since the 1980s, immigrants have regularly filed lawsuits challenging these policies and decisions.7 Title VII of the Civil Rights Act of 19648 protects immigrants and their descendants from discrimination on the basis of national origin.9 Immigrants who have been denied jobs because of their foreign accents have sued employers, alleging national origin discrimination.10 They have also used Title VII to sue employers who institute English-only rules, claiming that the negative effect the rules have on them as non-native English speakers amounts to national origin discrimination.11 Despite the strong links between national origin, language, and accents, courts have been reluctant to rule for plaintiffs on these claims. Courts generally find either that there is not significant harm to the plaintiff, or that the employer has sufficient business reasons to justify its decision or policy.12
Part I of this Note lays out the legal framework for these national origin discrimination claims. In Part II, this Note tells the stories of several plaintiffs who challenged English-only rules and accent-based hiring decisions. Part III argues that many courts are doing a great disservice to the goals of Title VII in the way they treat these claims. Part IV explores the harm caused by English-only rules and accent preferences based on the link between language and accent and one's national origin. To many immigrants, language and accent are very much a part of who they are and are not as mutable as courts generally assume. Kenji Yoshino argues that much of the discrimination that goes unchecked today involves forcing minorities to hide, or "cover," traits linked to their minority status, which does serious harm to the identities of members of those groups.13 By forcing employees to cover their accents and native languages, employers are attacking the national origin identities of those employees. Part V argues that after recognizing the severity of those attacks, courts should analyze claims against English-only rules and accent discrimination differently and scrutinize employers' business justifications more closely.
I. The Framework of Lawsuits Against English-Only Rules and Accent Discrimination
Title VII provides that:
It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . …