The Court should not grant a summary judgment on Count 1 because there is a material

issue of fact relating to discrimination on the basis of the linguistic characteristics of the

petitioner Mr. Salim Hussein in violation of the provisions of Title VII, 42 USC § 2000

which has to be assessed by the court.

Pursuant to Title VII, 42 USC § 2000 any prima facie discrimination because the

individual has the linguistic characteristics of a national origin group is prohibited.

However, in the decision of Fragrant v. State and County of Honolulu the court carved

out an exception to this rule wherunder if a qualification of selection was not solely based

the linguistic accent of the employee and included an action relating to the employee’s

lack of communication skills, such qualification would be deemed permissible.

The two primary cases in relation to discrimination based on the accent of an employee

are Fragante v. City and County of Honolulu and Nada Raad v. Fairbanks North Star

Borough School District. Fragante, was highly educate Filipino immigrant who had

received all of his formal education in English. A retired military officer, Fragante

applied for a clerk’s position with the City and County of Honolulu and was ranked first

out of 721 application on a written civil service examination. Subsequently after an oral

interview Fragrante was denied a job as a clerk at the Department of Motor Vehicles

because of his accent. One of the interviewers noted that Fragante spoke with a “very

pronounced accent which is difficult to understand”. The Court decided whether a person

should be discriminated during the course of his/her employment owing solely on the

basis of their accent while speaking English? Although the Court decided negatively on
the prima facie discrimination it provided a carve out to this rule. The Ninth Circuit held

that the Fragante was not selected because of the deleterious effect his Filipino accent had

on his ability to communicate orally. The distinction was made between employers

lawfully basic an employment decision upon an individual’s accent when and only when

it materially interfered with job performance. Employers should be allowed to base the

non-selection of a candidate on requirements such as the oral ability to communicate

effectively in English, if the requirement is reasonably necessary to the normal operation

of that particular business or enterprise. Following this the Ninth Circuit decided on a

similar issue in the Nada Raad case. Nada Raad is an American citizen of Lebanese

descent and Muslim faith. She was a frequent substitute teacher for the District, but for

three years (1991-1993) the District failed to hire her for a permanent teaching position.

After her third rejection, she went to the District's offices and according to some

employees made a bomb threat. She was then suspended from being a substitute teacher

for one year. The district court granted the District's motion for summary judgment. The

Ninth Circuit reversed in part. The Court again decided on the same issue i.e. should

accent be the sole touchstone for determining proficiency of communication skills during

the course of employment? However, the court delivered a different opinion than the

Fragante case after distinguishing the facts in the Nada Raad case. The Ninth Circuit held

that Raad's claim of hiring discrimination in August 1993 stands primarily upon the fact

that she was substantially more qualified than the applicant who received the position,

Rise Roy. Although initially assured that it was merely a transfer position later the

Education Officer informed her that she had not received the job because of her accent.

The Court further held that the close relationship between language and national origin
led the EEOC to classify discrimination based on "linguistic characteristics" as unlawful

under Title VII. See 29 C.F.R. § 1606.1 (2003); cf. id. § 1606.7(a)(noting, in the context

of speak-English-only rules, that "[t]he primary language of an individual is often an

essential national origin characteristic"). "Accent and national origin are obviously

inextricably intertwined in many cases. The exception was clearly laid out in the

Fragante case where adverse employment decisions may be predicated upon an

individual's accent, but only if it interferes with the individual's job performance. Hence,

any foreign accent that does not interfere with a Title VII claimant's ability to perform

duties of the position was denied as a legitimate justification for adverse employment

decisions. The Court held that Raad's accent did not impair her performance as a teacher

(and therefore was not job-related), this was evident inrecommendations written by her

graduate school instructors, requests for her as a substitute by other teachers employed by

the District, and the District's own continued employment of her as a substitute. Based on

this evidence, the Court held that the District used her accent as a pretext to deny her a

full-time position because of her national origin.

 Dev Prakash personally assured the candidate that there will be no discrimination, he

was aware that potentially there could be problems;

 Openly made fun of by the second generation immigrants;

 The co-workers colluded to intentionally ostracize the petitioner;

 The co-workers worked closely with Mr. James who was publicly criticizing the

Petitioner’s accent. It is highly likely that they influenced Mr. James.

 The team wanted to diversify but they did not ensure that there was sensitization of

the co-workers;

 The Lebanese Muslim identity of Nada Raada face persecution which is akin to the

persecution faced by the Petitioner;

 Unlike the facts in Fragrant, his accent was understandable by the other co-workers

including Ms. Pearson who was of an European descent;

 Obvious case of being made the scapegoat.

 He was almost asked to leave akin to the Rada case where she continued to be a

substitute teacher.