A Nigerian employee of the Architect of the Capitol’s information technology division (ITD) whose supervisor allegedly disparaged his accent and moved him from customer-facing positions could go to trial on his failure-to-promote claim, the U.S. Circuit Court of Appeals for the District of Columbia ruled.
The plaintiff was born in Lagos, Nigeria, and grew up speaking Eshan, his parents’ native language. He learned English in primary school and moved to the United States at age 29 in 1995. In 2011, Architect’s new chief information officer (CIO) stopped having in-person briefings with the plaintiff and allegedly told staff he was glad the plaintiff communicated with him by e-mail because he could not understand his accent when he spoke.
An employee testified that the CIO commented multiple times about communication problems purportedly caused by employees who do not speak English as their first language and stated that they could not have people like that working as the department’s first-line communicators. The CIO denied making these and other comments about people with foreign accents.
In October 2012, the plaintiff was reassigned from the production management branch of the ITD to a position with the same pay and at the same level in a different branch. The move was part of a larger division realignment and resulted in several other Architect employees and contractors with accents being removed from positions involving direct contact with customers.
The plaintiff filed a complaint with the office of compliance alleging that he was reassigned because of bias against people with foreign accents. A hearing officer ruled in the plaintiff’s favor and ordered Architect to pay him $30,000 in damages. The CIO was not disciplined or reprimanded for his role in the discriminatory reassignment.
In 2014, the CIO called the plaintiff into his office to test his phone’s voice recognition software and expressed surprise that it understood the plaintiff’s accent. Later that year, Architect invited applications for the position of branch chief of the production management branch, which had been vacant since 2012. The plaintiff and 75 other candidates applied.
The deputy CIO reviewed the resumes and selected 10 applicants, including the plaintiff, for in-person interviews. She told the CIO that she would not have selected the plaintiff for an interview based on his resume but did so because of an agency hiring policy that required her to interview all internal candidates when fewer than five apply.
The deputy CIO selected the interview panel, which consisted of herself, the CIO and two members of other divisions that interacted regularly with the ITD. Out of the 10 candidates, the deputy CIO ranked the plaintiff ninth, the CIO ranked him seventh and the two other members ranked him fifth. The highest-scoring candidate was Taiwanese and spoke with a foreign accent.
That candidate was selected, but the deputy CIO and others began having concerns about his management abilities and after 10 months he resigned in lieu of being removed.
The branch chief position was advertised again, and the plaintiff reapplied. This time the applicants were interviewed by a five-member panel that did not include the CIO. The panelists conducted two rounds of interviews, with the plaintiff being removed from consideration after the first round. A candidate who spoke with a foreign accent was considered in the second round, but another candidate was selected.
The plaintiff filed suit, claiming national-origin discrimination and retaliation in his nonselection for the position. Architect filed for summary judgment, which the district court granted.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
On appeal, the D.C. Circuit determined that the plaintiff had presented evidence of potential discrimination in his nonselection. For one thing, the CIO who had allegedly made disparaging comments about the plaintiff’s accent was a panelist in the first selection process. In addition, the plaintiff claimed that the second selection process had originally been planned as one round of interviews and that the change to two rounds was designed to prevent Architect from hiring the candidate with a foreign accent.
The D.C. Circuit found that the plaintiff had presented enough evidence to go to trial on his national-origin-discrimination claim but not on his retaliation claim. As a result, the court overturned the summary judgment decision and ruled that the claim could go to trial.
Iyoha v. Architect of the Capitol, D.C. Cir., No. 17-5252 (July 2, 2019).
Professional Pointer: Except when an employer can show that an accent makes an employee so hard to understand as to create a legitimate basis for an adverse action, an employer’s discrimination against someone with a foreign accent generally constitutes national-origin discrimination.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.