Covert discrimination in modern American employment practices

Cultural Diversity and Vocational Discrimination Issues

Discrimination and Prejudicial Attitudes

In theory, gender, race, ethnicity, religion, and culture of origin play absolutely no role in hiring or retention decisions in the modern American workplace. That is directly a function of the evolution of civil rights and constitutional protections that developed in the second half of the 20th century (Dershowitz, 2002; Halbert & Ingulli, 2008). Previously, it was perfectly routine for employers to post notices that read "Irish Need Not Apply" or "No Jews" and even for businesses to refuse to serve customers who were not Caucasian (Healey, 2003; Schaefer, 2002).

The Civil Rights Era of the 1960s fundamentally changed American society for the better and eventually resulted in the end of large-scale discrimination and most overt forms of prejudicial conduct in employment. Both federal and state civil rights acts and legislation impose serious consequences for proven instances of employment discrimination based on gender, race, ethnicity, religious affiliation, and culture of origin. Many modern antidiscrimination state statutes go beyond the protections recognized on the federal level, such as by extending antidiscrimination employment laws to gender identity and alternative sexual preferences, as well as establishing similar protections in other areas such as spousal rights to same-sex domestic partners (Kennedy, 2006).

However, and notwithstanding the tremendous strides that the United States has made in civil right in general and in employment discrimination, in many respects, compliance is largely a matter of good faith (Dershowitz, 2002; Halbert & Ingulli, 2008). That is primarily because many employment decisions are incapable of being identified as having been the product of impermissible motivation, precisely because they are implemented by covert discriminatory actions rather than through the use of overt signs hung on window panes or expressed in straightforward and clear language that specifies the biased criteria upon which employment decisions are made (Dershowitz, 2002; Halbert & Ingulli, 2008).

Fact-dependent Issues in this Case Study

The issue of Maria's accent could be the basis of both a legitimate decision to have promoted Alex instead of Maria as well as the basis for a legitimate accusation from Maria of discrimination. If the objective truth of the matter is that Maria's accent is so heavy (or so heavy on some occasions) that it does interfere with the ability of the company's clients to understand her easily, it would be a perfectly legitimate consideration in connection with her candidacy for selection to a higher position. The legal concept of nondiscrimination does not obligate an employer to select a less qualified or less experienced candidate simply because of minority status (Dershowitz, 2002; Halbert & Ingulli). Therefore, Maria's accent could be the legitimate basis for her complaint of discrimination if, in fact, it were not detrimentally affecting her ability to fulfill the responsibilities of her position.

However, if Maria's accent is not pronounced enough to interfere with the ability of clients to understand her or to affect her performance detrimentally in any other objective way, it would not be a permissible reason for any employment decision such as in connection with hiring or promotional advancement (Halbert & Ingulli, 2008; Schmalleger, 2008). If the truth of the circumstances is that Maria's accent does not interfere with her job performance but her employer or supervisor would simply prefer not to have someone with a non-native English speaking accent fill the position, then Maria has a legitimate discrimination claim against her employer (Dershowitz, 2002; Halbert & Ingulli, 2008).

In this case, for Maria would to prevail on a claim for discrimination, she would have to establish either that: (1) verbal communication is, in fact, not a specific and essential component of the requirements of the position, or (2) even if it were, Maria's accent is not, in fact, so heavy that it reasonably justifies consideration in the scope of the decision to select a candidate for the position (Dershowitz, 2002). However, from a practical perspective, the fact that her employers openly acknowledged to Maria that her accent was an issue in the decision is more logically consistent with the conclusion that it was a legitimate concern.

Had her employers intended to withhold the promotion impermissibly on the basis of Maria's minority status, they would probably have been very careful never to mention (or acknowledge) that her accent played any role in the decision at all. It is not possible to know whether the acknowledgment was made precisely because it was a legitimate concern or simply because whoever made the admission lacked the awareness of how damaging that acknowledgement could be if the decision was made illegitimately. Given the sensitivity of the issue involved and the general awareness of the consequences of impermissible discrimination in the workplace, it would probably be more reasonable to assume that the acknowledgment is itself some indication that Maria's accent was a legitimate concern than to infer that it was not and that the acknowledgement was made anyway, particularly if the acknowledgment was in response to any claim of discrimination.

Under circumstances where Maria had a perfect record for doing her job, a complaint-free record, and no prior history of any inappropriate conduct or "aggressiveness" in her manner of communicating with coworker, supervisors, or clients, she would have a much stronger argument that the denial of promotion might have been based on impermissible factors such as minority status, bias, and employment discrimination. The fact that Maria does have a record of being inappropriately loud and aggressive with coworkers and supervisors suggests that sufficient basis existed to justify promoting Alex instead of Maria.

Generally, lack of cooperation and a history of any type of inappropriate conduct in the workplace would justify the denial of promotion (Schmalleger, 2008). More particularly, where such conduct occurs within the scope of the individual's primary vocational responsibilities, it would be considered prima facie justification for denial of promotion as well as for disciplinary measures (Schmalleger, 2008). Furthermore, the fact that Alex had a better performance record and evaluation in addition to an advanced degree creates a rebuttable assumption that sufficient objective ground existed to justify his promotion instead of Maria, even without and issues of accent or professional conduct in the workplace. Finally, Maria's record of attendance and tardiness are objectively justifiable criteria for consideration in connection with employment evaluation and candidacy to positions of higher authority and responsibility.

Therefore, in light of the totality of circumstances, it would appear to the objective observer that the denial of promotion was more likely justified by legitimate circumstance and not the result of biases against Maria based on her minority status or any impermissible discrimination related thereto. Maria was most probably denied the promotion because Alex was (at least) equally qualified; he had a better performance evaluation; Maria had a record of inappropriate conduct in her manner of communicating with coworkers and supervisors; Maria had a record of unreliability in attendance and tardiness; and Maria also has an accent that can (at least on certain occasions) detrimentally affect her ability to satisfy one of the essential elements of her position.

Specific Solutions to Prevent Future Recurrences

It is not known from the fact pattern what specific steps her supervisor or employer took to mitigate any possible exposure or liability from even the appearance of bias or discrimination. However, in principle, it is possible to outline specific procedures that can minimize any such risks in the future. Specifically:

Employers must be extremely diligent to maintain formal records of any employee issues of performance or professional conduct in the workplace that could potentially become relevant in connection with future complaints about the legitimacy and bases of specific decisions. In this case, Maria's employers might be able to establish that Maria had a poor attendance and tardiness record, but Maria's supervisor never entered any specific references to her unprofessional conduct in relation to her manner of communication with coworkers and supervisors, it will be substantially more difficult to raise those issues as defenses to claims of discrimination after the fact, once Maria has already raised them.

Likewise, the issue of Maria's accent detracting from her ability to perform the essential functions of her position would be much easier to respond to with the availability of formal entries that Maria had previously been counseled with respect to difficulties client were experiencing because Maria's accent made it harder for her to communicate with them effectively. Those facts may indeed be capable of being established retrospectively, but only after considerably greater effort and potential expenses required to do so.

Furthermore, in circumstances such as that presented by Maria's professional conduct and her accents, the employer would be in a much stronger position to refute any possible claim of discrimination if it had provided specific counseling and training to help Maria overcome any difficulties in those areas. Ideally, supervisors must first be diligent about establishing formal records of any employee performance issues or conduct that could ever be included in any staffing decisions; second, they should have an established procedure for providing vocational training for any employee whose performance necessitates a formal negative entry in the official performance record.

Had Maria's supervisor fully documented Maria's inappropriate conduct in relation to her manner of communicating with coworkers and supervisors and had her supervisor fully documented any concerns about Maria's accent interfering with her job performance, the company would occupy a much stronger position to defend itself against any accusations of discriminatory employment practices. Certainly, there is already a formal record of Maria's absences; there may or may not be a formal record of Maria's tardiness. However, without specific directives to follow the suggestions outlined above, it is doubtful that a formal record exists to document any previous specific instances of Maria's accent interfering with her job performance. As a result, even if the company is ultimately successful at establishing that the denial of promotion was based on legitimate grounds and not on the basis of biases or discrimination, it will cost the company much more to do so, particularly if the issue results in litigation of the issues in a court of law.