Is that legal?
Q: I AM a college graduate in business management from the Philippines who migrated to the United States. I got work as a caregiver at a nursing facility. After a few years, I was promoted to a supervisor position: still providing direct care but also overseeing other caregivers. The patients and my co workers like me, so I enjoy the work.
Recently, I learned that the facility was hiring for a manager position. The job wouldn’t involve providing direct care to patients, but would instead be on the business side. My college degree in business management, and the fact that the job description shows that knowledge of our organization’s caregiving operations would be an important part of the job, appears to make me qualified for the position. I showed the job opening to one of the managers at the facility, and she agreed that I seemed qualified for the job opening, so I applied.
When I went for the job interview, the person who interviewed me was from corporate. I had never seen him before in the facility. He was friendly, but it seemed weird when he said he was surprised to see that I was Filipino because I use my husband’s English last name. We talked about the job and I did my best to show him that I was qualified.
He told me that he was impressed by my interview, but that he had concerns about my accent. He said that the manager position involves a lot of interactions with patients’ families, and that because the facility is in a predominantly white community, the clients might not be able to understand my accent. He said that, from past experience, the clients in this community like Filipino caregivers but not Filipino managers. He said he has nothing against me and other Filipinos, but that the company has to respect the clients’ feelings.
I didn’t get the job. The company hired a white woman for the manager position. She seems nice, but she doesn’t even know what we do here. And when I spoke to her, I found out that she is much less qualified than me. I feel like my accent cost me the job. Isn’t that illegal?
A: What you experienced likely violated the California Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964, which make it an unlawful employment practice to refuse to hire, employ or promote someone because of that person’s race, national origin or ancestry, among other classifications.
The courts have made clear that basing hiring or promotion decisions on a person’s accent may support a finding of employment discrimination on account of race, national origin or ancestry. That would appear to be what happened in your situation, where your interviewer specifically noted your accent in the interview as a reason not to hire you, and then the company hired a less-qualified person of a different race, national origin and ancestry.
It’s curious that the interviewer specifically noted that he personally does not harbor ill feelings towards Filipinos, and that it is the customers who are instead prejudiced against Filipinos. But this does not excuse the discriminatory conduct. While the discrimination laws make exceptions for seemingly discriminatory decisions otherwise based on what’s called a bona fide occupational qualification, simply catering to customers’ biases and prejudices do not fall under that exception.
Instead, the anti-discrimination laws and the cases brought under them make clear that employers may not segregate employees of a particular national origin from customers. By choosing not to hire you for the manager position due to their customers’ preference that Filipino employees be limited to caregiver positions, and excluded from managerial positions, it seems your company violated protections against discrimination based on race, national origin and ancestry.
* * *
The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
* * *
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
(Advertising Supplement)