Say What? Redux
What's wrong with this scenario?
It's bad business. But according to the EEOC, it's the law. Via Walter Olson at Overlawyered:
Pay up, EEOC tells a cafe owner, for not taking on a hearing- and speech-impaired applicant for a cashier’s position [EEOC press release (Albuquerque's Savory Fare Bakery and Cafe agrees to pay $20,000 and offer other relief).
The EEOC described the employee as "hearing impaired" and "having a minor speech impediment," which neither makes her a bad person nor unemployable by any stretch of the imagination. On the other hand, these are usually considered the skills needed for a job requiring communication with the public. Then again, the law rejects the idea that pleasing the public, whose demands may well reflect common bias, makes discrimination okay.
And this conceptually good and right. Rather than perpetuate myths that the disabled are worthless and incapable of enjoying a decent life, the law requires reasonable accommodation of their disabilities so that they can work like anybody else. Or almost like anybody else.
“Employers with 15 or more employees must comply with the ADA,” said EEOC Regional Attorney Mary Jo O’Neill. “Employers must make employment decisions based upon the abilities of their applicants and employees, not based on myths, fears or stereotypes about a person’s disability. The ADA was passed so that people with disabilities get a fair chance at making a living and have equal employment opportunities.”
Part of the mix is the pretense that disabilities don't exist, or that the burden of accommodating them shifts from the disabled person, who isn't at fault for being disabled, to both the employer and everyone else who has to deal with the limitations. If properly placed, meaning that they're in a job where the disabilities don't preclude adequate performance, that's great. There used to be a concept called bona fide occupational qualification, the ability to perform the tasks the job required. If a disability meant you couldn't adequately do the job, then that wasn't the job for you.
It's impossible to tell from the EEOC decision whether the employee's speech and hearing impediments were sufficiently severe to preclude her from performing the job, though no ruling, no fine are going to make customers who find dealing with her either too difficult or unpleasant come back to the bakery. The underlying policy is that if the government forces people to endure difficulties in their everyday lives, they'll eventually get used to it and not let inherent difficulties stop them from doing business. Most of us will shrug off minor problems, and be fairly happy to accommodate people with disabilities because they deserve to be able to enjoy life, including employment, like everybody else.
But Wally likens the case to "accent discrimination," taking us back to an article he wrote in 1997 for Reason.
As a general statement, this might not seem so terrible. Certainly, a nation that touts itself as a "melting pot" should be capable of accepting those whose diction falls a tad shy of Rex Harrison, right? But where is the line drawn? What about a small business where the owner or supervisor doesn't speak the language of a prospective employee? It can be awfully difficult to direct a person's employment by pointing fingers at objects and thinking pleasant thoughts. Or worse still:
It's true: the Equal Employment Opportunity Commission and private lawyers are hitting employers with legal complaints for preferring jobholders whose manner of speech is familiar and understandable to the customers and co-workers they deal with. In fact, in many cases it has become legally suspect for companies to insist on strong communications skills. The immigrant-rights unit of the U.S. Department of Justice has run subway and newspaper ads warning that the "ability to speak fluent English" must not "affect your decision about hiring a prospective employee."
Civil rights enforcers admit there are some circumstances where employers may legitimately consider accents. They just take an ultra-narrow view of what's legitimate. Consider the controversy that engulfed the town of Westfield, Massachusetts, a couple of years ago.
The town's school system had assigned instructor Ramon Vega to an experimental program where he'd teach language skills to first- and second-graders. Some parents had trouble understanding Vega's conversation themselves and worried that their kids might have the same problem. Four hundred of them proceeded to sign a petition asking that instructors in early grades be proficient in "the accepted and standard use of pronunciation."
When word reached Boston, all hell broke loose. The state education commissioner charged the parents with "bigotry." The National Education Association rushed through a resolution at its annual meeting decrying disparate treatment on the basis of "pronunciation"—quite a switch from the old days when teachers used to be demons for correctness on that topic.Experts popped up and were quoted saying expert things. Donaldo Macedo, described as "director of graduate studies in bilingual education" at a local university, accused the parents of "linguistic racism"
The problem is that you can add an "ism" onto the end of anything, conveying the nefarious sense that it's wrong to discriminate against them. Indeed, the accusation of discrimination itself is damning, without regard to what we're discriminating against. We discriminate constantly, and lawfully, in our everyday lives. We chose mates because they attract us, which may mean we discriminate against the fat or thin, the ugly or beautiful, as the case may be. We prefer not to hang the tag of discrimination on our choices, because of its negative connotations, but it's most assuredly what we do.
Similarly, we discriminate in business. We hire people competent to perform the job. If it requires brilliance, we discriminate against the intellectually impaired. If it requires grace and skill, such as a ballet dancer, we discriminate against the clumsy and awkward. Nobody wants to buy an album by a person who can't carry a tune. How discriminatory of us.
I confess: I'm a linguistic racist. My tolerance has worn thin on my calls for help being answered by a person whose Indian accent renders them incomprehensible to me. I do not want to ask three times, "can you repeat that?" and still have no clue what they're saying. If I take the time to call, it's something that matters enough to me that I need an answer. Their need for employment despite their inability to communicate to an English speaking caller doesn't matter enough to me to endure their limitations.
My reaction is the singular desire to reach through the phone and, well, never mind. Suffice it to say I get frustrated by the three minute phone call that takes 47 minutes of my life, and still doesn't resolve my problem.
When a business that wants my patronage compels me to endure this, I try to find another enterprise to do business with. My assumption is that the business has elected to put me through this misery to save a few dollars by outsourcing at the expense of my tolerance. I do not feel badly about my decision.
Yet the same situation could be rammed down a business' throat by our own laws and government fiat. Social "justice" isn't a bad thing, but when it's not tempered by reason, neither the intended beneficiary nor those of us who are also required to pay the price are helped. And if anybody wants to pay to watch me dance ballet, just let me know. Or are you dancist?