by Michael Fox
Although it might have made the employer feel a little better when the 6th Circuit admitted that its precedents were "admittedly not perfectly clear," probably not enough to not be disappointed when summary judgment on a failure to promote claim was reversed. Instead the Court found comments allegedly made by a manager that an employee should not be promoted because of his accent and the "way he talked" was direct evidence of national origin discrimination and so the lower court's use of the McDonnell Douglas test was inappropriate. In re: Rodriguez (6th Cir. 6/27/07) [pdf]. The case contains a pretty good summary of other "accent and language" cases.
All was not totally lost for the employer as the case was remanded for the district court to apply the proper standard: when there is direct evidence, the employer has the burden of proof to show it would have taken the same action even absent a discriminatory motive. Also summary judgment on the other two claims was upheld.
The case is a good reminder that for summary judgment purposes the question of whether there is direct evidence may well be outcome determinative.