Abstract
In Professor Mari Matsuda’s article Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, Professor Matsuda identifies a doctrinal puzzle in the courts’ approach to accent discrimination cases: Courts recognize that accent discrimination can be a form of national origin discrimination, yet courts are overly deferential to employers’ claims that a plaintiff’s accent materially interferes with job performance. This puzzle persists in the doctrine today. This Comment builds on Professor Matsuda’s scholarship and argues that her proposed framework may not be fully responsive to all the various ways accent discrimination can be perpetuated. In particular, a phenomenon arises in accent discrimination where employers will accommodate other communication-related issues but will refuse to accommodate accent, a dynamic known as selective nonaccomodation. This Comment first explores the social science research on accent discrimination then explores selective nonaccomodation, as it appears in other forms of employment discrimination, including disability, pregnancy, breastfeeding, and family responsibilities. In response to selective nonaccomodation within the accent discrimination context, this Comment calls for a presumption of disparate treatment in cases where the plaintiff can show an employer failed to accommodated employees with accents but did accommodate employees who are similarly situated in terms of their comprehensibility in speaking English. This Comment concludes by applying the presumption to recent cases of accent discrimination, examining how the presumption would have changed the outcome in favor of plaintiffs and move our society closer to Professor Matsuda’s vision of linguistic tolerance and diversity.
