Under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), it’s direct evidence of discrimination if a supervisor or manager with hiring or firing power makes comments about an applicant’s or employee’s foreign accent. That’s why it’s crucial for HR to remind managers and supervisors to watch what they say.
An employee who can point to careless comments has already won half the lawsuit because the burden of proof now falls on the employer. If you are that employer, now you have to prove that, absent discrimination, you would have made the same decision about promoting, hiring or firing the person. That’s much harder to do than simply proving you had another reason for your decision.
Consider this example: A supervisor doesn’t promote an employee because he never applied for an open position. But the employee tells the court the same supervisor mentioned that the employee isn’t “ material” because his heavy accent makes him hard to understand. Now the employer has to prove it wouldn’t have promoted him even if he had applied. It would be much easier to prove that the employee simply didn’t apply for the job.
Recent case: Jose Rodriguez, who is Hispanic and speaks English with a heavy accent, worked as a driver for FedEx. When a co-worker recommended he take a class to be considered for a management position, he signed up. But then he heard that a supervisor said Rodriguez’s accent and speech patterns would make it impossible for him to climb through the ranks.
Rodriguez sued under the ELCRA and said the comments were direct proof of national origin or race discrimination. The 6th Circuit Court of Appeals, interpreting Michigan law, concluded Rodriguez was correct. Now FedEx will have to prove it wouldn’t have promoted Rodriguez anyway, even if there was no discrimination at work. (Rodriguez v. FedEx Freight East, No. 06-1988, 6th Cir., 2007)
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