The Associated Press wrote today that the Hawaiian Tropic Zone, a New York City Eatery located at Times Square, has moved to dismiss a discrimination lawsuit filed against it by a twenty-two year old Latino women. The lawsuit alleges that she was denied a job as a barmaid because her speech was to “Ghetto.” The lawyers for the restaurant claim assert that a waitress is a salesperson and that a salesperson can be legitimately fired because they are poor speakers. While the article does not state under what statutes the suit was filed, it was likely filed pursuant to Title VII of the Civil Rights Act of 1964.

There are three requirements every Plaintiff must initially demonstrate in order to maintain a workplace discrimination claim under Title VII of the Civil Rights Act of 1964:  (1) she was a member of a protected class; (2) she was qualified for the position to which she applied; and (3) another person, not in the protected class was treated more favorably. Once the plaintiff meets these requirements the burden shifts to the employer to demonstrate a non-discriminatory reason for unfavorable employment decision. If the employer can demonstrate a non-discriminatory basis for the decision the burden shifts back to the employee to show that the non-discriminatory reason offered by the employer is mere pretext for actual discrimination.

The article does not discuss the facts of the case with great detail. From what we know, the Plaintiff will likely make out the first element of the claim: she is a woman and a minority, both groups that Title VII was passed to protect. It is likely that she can also establish the other two elements: she was qualified for the position to which she applied and another person, not in the protected class was treated more favorably.

From the article, it appears the employer has offered a non-discriminatory basis for the adverse employment decision: she did not speak well. Therefore, the Plaintiff will have to show that this reason is mere pretext and that the real reason they did not hire her was racially motivated. This last element of a Title VII claim is often the hardest to establish. An employer can refuse to hire someone on the grounds of poor speech where good speech a legitimate requirement for the job. On June 1st  I Blawged about such requirements in the context of discrimination lawsuits.  

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