Refusal to Hire Heavily Accented Man Is Legal : Supreme Court: A ruling that applicant who cannot clearly address the public may be rejected is let stand.

WASHINGTON —  A job applicant who speaks English with a thick foreign accent may be denied employment without violating federal anti-discrimination laws, according to a ruling that the Supreme Court let stand on Monday.

The Civil Rights Act of 1964 forbids job discrimination based on an individual’s “national origin,” race, sex or religion. But the U.S. 9th Circuit Court of Appeals ruled that the act is not violated if an employer refuses to hire someone whose accent “interferes materially” with his ability to perform a job.

The court did not try to specify how strong an accent must be before an employer is justified in refusing to hire a job applicant. The court stressed, however, that such a refusal is allowed only if an essential part of the job involves speaking to the public.

“There is nothing improper about an employer making an honest assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance,” Judge Stephen S. Trott had written for the federal appeals court based in San Francisco.

Lawyers for Manuel Fragante, a 66-year-old Filipino-American, condemned the high court for refusing to hear an appeal.

“I think this sets a dangerous precedent,” said William D. Hoshijo, a Honolulu attorney. “This leaves the standard very unclear. It is up to the subjective judgment of the employer,” he said.

Hoshijo said he would not have challenged the job rejection if Fragante did not speak English. But, he said, Fragante “is an educated, articulate English speaker who speaks with an accent.”

The case arose when Fragante, a retired Philippine military officer with a college degree and a law school education, sought a clerical job in the Department of Motor Vehicles in Honolulu. He scored well on a written civil service examination but ran into trouble in two personal interviews.

One interviewer noted that Fragante had a solid professional background but “speaks with a very pronounced accent which is difficult to understand.” A second interviewer said he had “a heavy Filipino accent,” which would make him “difficult to understand over the telephone.”

The job Fragante was seeking required answering questions and fielding complaints over the counter and on the telephone. Based on the interviewers’ assessments, city officials rejected Fragante and hired an applicant who had scored lower on the civil service test.

Fragante filed a suit in federal court in Honolulu charging a violation of the 1964 Civil Rights Act. He lost before a trial judge and appealed to the 9th Circuit Court in San Francisco. Fragante’s appeal was supported by both the U.S. Equal Employment Opportunity Commission and the Mexican American Legal Defense and Educational Fund based in Los Angeles, but a three-judge panel upheld the ruling.

“The record conclusively shows that Fragante was passed over because of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent,” wrote Trott, who was a top Justice Department official in the Ronald Reagan Administration.

Lawyers for Fragante urged the high court to hear his appeal and to clarify whether discrimination based on a foreign accent violates federal law.

But, without comment, the justices rejected the appeal. The high court rejection sets no binding national precedent. However, the 9th Circuit Court opinion is binding in California, Arizona, Oregon, Washington, Nevada, Montana, Idaho, Alaska and Hawaii. (Fragante vs. City of Honolulu, 89-1350.)

In Los Angeles, J Craig Fong, a director of the Asian Pacific American Legal Center of Southern California, said that letting the 9th Circuit’s ruling stand gives “tacit approval” to discriminate because of someone’s accent.

“The problem is this type of ruling enables employers to subjectively deny employment because of the perceived inability of others to understand someone’s accent,” Fong said.

Kathryn Imahara, the director of the center’s legal rights project, said that, in ruling against Fragante, the 9th Circuit had failed to set guidelines for what constitutes material interference with an individual’s ability to do a job.

As a result, Imahara said, the 9th Circuit’s action “opens the door for invidious discrimination.”

“An employer can now say: ‘I don’t understand your English.’ That’s the very scary part of it,” she said.

Despite his loss in court, things have not turned out badly for Fragante, his lawyer said. He was hired by the state Department of Labor in a research and statistical job. “Ironically, one of the things he does is (take) telephone surveys,” Hoshijo said.

In others cases Monday:

The court refused to consider whether a small town’s ban on dancing at school violates the principle of separation of church and state.

Three high school students from rural Purdy, Mo., challenged their school board’s no-dance policy, which was strongly supported by fundamentalist Baptist ministers in the community. When the school board considered changing the policy in 1986, local ministers helped pack a board meeting, and the change was blocked.

The students then filed suit, contending that the no-dance policy was “a symbol of official government endorsement for fundamentalist religious beliefs.” A federal judge ruled for the students, but an appeals court in St. Louis overturned that decision on a 5-4 vote.

The appeals court said the school policy was not strictly a religious one and that it reflected the conservative views of a majority of the community. If it were unconstitutional to allow “moral” views to affect school policies, it could also be unconstitutional to ban drinking or swearing at school, the appeals court said.

The high court justices, without comment, refused to hear the appeal. (Clayton vs. Place, 89-1348.)

A 17-year-old male facing a possible death sentence in Alabama lost his fight to avoid extradition when the court refused to hear his appeal.

The young man, identified only by the initials O. M., is charged with arson and murder in the 1988 death of Tamal Jackson, a 1-year-old who was killed when a firebomb exploded inside a Gadsden, Ala., housing complex.

O. M. was arrested in Washington, D.C., in 1988, and has been fighting extradition ever since. His lawyers argued unsuccessfully in Washington courts that his extradition would violate the district government’s ban on capital punishment. Moreover, they contended that O. M., who is black, could not get a fair trial in Etowah County, Ala. (O. M. vs. District of Columbia 89-6756.)

Two of O. M.’s uncles, 32-year-old Yul Devoe Guice and an 18-year-old identified only by the initials S. T., also were charged with arson and murder in the death of the Jackson infant.