Fragante v. City & County of Honolulu
888 F.2d 591 (9th Cir. 1989)

Fragante applied for a clerk’s job with the City and County of Honolulu. Although he placed high enough on a civil service eligible list to be chosen for the position, he was not selected because of a perceived deficiency in relevant oral communication skills caused by his “heavy Filipino accent.”

  • Fragante brought a Title VII suit, alleging disparate treatment on the basis of national origin.

The district court dismissed Fragante’s complaint.

  • The oral ability to communicate effectively and clearly was a legitimate occupational qualification for the job in question.
  • There were no proof of a discriminatory intent or motive by the defendant.

Was this a case of discrimination on the basis of national origin?

No. Affirmed.

Using the McDonnell Douglas Framework:

(1) P established a prima facie case.

  • The court assumed this was satisfied.

(2) D articulated a legitimate, nondiscriminatory reason for P’s nonselection.

  • “There is no doubt from the record that the oral ability to communicate effectively in English is reasonably related to the normal operation of the clerk’s office.”

(3) The legitimate, nondiscriminatory reason was not a mere pretext.

  • The hiring process involved scores on a variety of categories, and Fragante was given a 3 on a scale of 1-10 for speech.
  • Furthermore, “the record does not show that the jobs went to persons less qualified than Fragante: to the contrary.”

In sum, the court noted, “Fragante was passed over for employment because of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent.”

Rule: An adverse employment decision may be predicated upon individual’s accent when – but only when – it interferes materially with job performance.