In the Thick of Thick Accents: Employment Discrimination and the Appalachian Accent

I. Introduction

In college, Jane Doe studied communication and English. She took classes that focused specifically on public speaking and grammar. However, prior to graduation, her favorite professor gave this departing advice, “Don’t put any recordings of yourself speaking online. Employers won’t hire you.” An employer would not hire her because she sounded unintelligent. No matter how high her grades were or how much experience she gained, she would always sound like a hick, a hillbilly, a redneck. No matter how smart she was, she would always belong to the Appalachian minority group.

Being an Appalachian means being part of a minority group.^[1] As defined by the government, Appalachians are people born in certain geographic areas belonging to one of 13 states, stretching from Mississippi to New York.^[2] Like any other cultural group, Appalachians share certain identifiable traits. Clan-like family ties serve as the building blocks of Appalachian culture.^[3] In general, Appalachians also strongly value religion^[4] and education.^[5] Perhaps most noteworthy, their culture honors the oral tradition.^[6] They find pride in their speech. In fact, the very way Appalachians speak is directly tied to their heritage and sense of identity.^[7] Accent serves as an identifier for other Appalachians, i.e., the insider group, and outsider groups, i.e., non-Appalachians.^[8]

Despite their cultural distinction, Appalachians are a forgotten, invisible minority, in part, because it is their accents, rather than their physical appearance, in which they differ from mainstream Americans.^[9] However, language is “a powerful automatic signaling device second only to race to identify targets for possible privilege or discrimination.”^[10] Like other minority groups, Appalachians have had their identity stolen and manipulated by outsiders.^[11] The Appalachian accent, known by some as “mountain speak,” has been interpreted as signaling undesirable and distorted traits. Appalachians are routinely stereotyped as “ignorant, lazy, uneducated, and incestuous . . . .”^[12]

Appalachian linguistic differences have led to economically harmful discrimination.^[13] In fact, “Appalachians are statistically one of the most exploited and marginalized [sic] groups in America.”^[14] However, courts have refused to protect them from hate-fueled and egregious discrimination.

This article focuses on discrimination within employment. Discrimination and employment have long been linked,^[15] and discrimination in employment poses a unique and devastating problem. Employment provides money for basic necessities, such as clothing, housing, and food. This opportunity is to earn clothing, housing, food, and a better life to which Appalachians, such as Jane Doe, aspire.

More specifically, this article explores how courts have misinterpreted (or perhaps merely inadequately interpreted) Title VII of the Civil Rights Act of 1964 to deny Appalachians legal protection that would seek to remedy employment discrimination. The article begins with a tripartite background section. The first background section offers a very brief overview of linguistic terminology. The linguistic terminology section is meant to clarify any confusion resulting from usage variation between different fields of study. On the other hand, the second and third background sections are purely legal in nature. The second background section focuses on constitutional law to demonstrate the broader historical context of Title VII. Finally, the third background section introduces Title VII’s statutory interpretation to give readers a basic knowledge of the primary anti-discrimination legislation.

The following three sections will constitute the analysis portion of the article. These three sections will explore why the current interpretation, which denies Appalachians protection, is incorrect, or at least incorrectly stated. The three proceeding arguments support the assertion that the current interpretation of Title VII, as applied, is erroneous: (1) Appalachians represent a distinctive population that is discriminated against similar to other minority groups;
(2) Appalachian accents are traceable to various but identifiable foreign nations of origin; and
(3) courts have expanded “national origin” to include “place of origin.” Therefore, Appalachians should be protected under Title VII’s national origin prong.

After the analysis section, the article will provide two possible solutions to the problem of Appalachian-targeted employment discrimination. First, the article will explore a potential judicial solution that would require judicial reinterpretation or clarification of Title VII that would result in protection of Appalachians. Second, the article will suggest that enactment of additional anti-discrimination legislation, such as local ordinances, might better serve the goals of Appalachian protection. Finally, the article will provide a brief summarization.

II. Background

This section provides a brief overview of the terminology, constitutional background, and legal framework needed to understand the problem of Appalachian-targeted employment discrimination, especially regarding accent discrimination.

A. Terminological Background

For clarity, this article begins with a very brief note on terminology. There is a definitional nuance between the words “accent” and “dialect” that is often overlooked by those not trained in linguistics.^[16] To linguists, “dialect” means “a regional variety of language distinguished by features of vocabulary, grammar, and pronunciation from other regional varieties and constituting together with them a single language.”^[17] On the other hand, to those who study language, “accent” refers to pitch, stress, and diacritics.^[18] “Linguists . . . differentiate language from speech, speech from communication, and fluency from communicative competence.”^[19] However, to those outside the linguistics field, including legal professionals, “accent” includes “dialect.”^[20] A term such as “language-trait focused discrimination”^[21] might be more accurate, because the term “language-trait focused discrimination” would encompass both accent and dialect within the fields of linguistics and law. However, courts generally use the term “accent” to encompass what linguists distinguish as two separate categories (accent and dialect). Consequently, this article will track the language of the courts and use the word “accent” to include all language-based discrimination.

B. Constitutional Background

Constitutional law and civil rights legislation, including Title VII of the Civil Rights Act of 1964, have developed alongside one another, influencing the law as a whole. Thus, it is helpful to know a bit about the history of both constitutional law and civil rights legislation during and after the Reconstruction era. The Equal Protection Clause was ratified in 1886. The clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”^[22] It is important to note that the amendment uses the word “state.” This means that the Equal Protection Clause does not apply to private persons. In fact, “private action in the economic realm was to late 19th and early 20th Century jurists generally not reachable through law, and thus, legislation aimed at protecting workers against discrimination . . . was rarely constitutionally permissible.”^[23] In other words, early in America’s history, there was concern regarding whether Congress even had the authority to regulate private discrimination through federal regulation.

Congress tested its powers to regulate private action via the Equal Protection Clause in 1875 by passing the Civil Rights Act of 1875, which attempted to prohibit conditioning public accommodations on the basis of race, color, or former-slave status.^[24] However, the Supreme Court ruled that Congress lacked the power to institute civil rights legislation that regulated private parties.^[25] This essentially paused efforts to attain rights against private parties. Consequently, campaigns advocating for employment discrimination legislation would only appear much later. In fact, campaigns advocating for employment discrimination legislation, even at the state level, would not appear until the New Deal era.^[26]

America crawled toward employment discrimination progress as states slowly adopted anti-discrimination laws.^[27] Serious efforts to institute general federal legislation against employment discrimination would only be undertaken in the late 1930s and 1940s.^[28] More than 80 years after the Civil Rights Act of 1875, Congress again attempted to pass civil rights acts in the late 1950s and early 1960s.^[29] Finally, in 1964, the federal government tried to pass broad anti-discrimination legislation aimed partially at employment discrimination. In Heart of Atlanta Motel v. United States, a plaintiff motel challenged the civil rights litigation by asserting that Congress had exceeded its constitutionally-granted power.^[30] The plaintiff specifically challenged Title II of the Civil Rights Act, a public accommodations section.^[31] The court said that the reasoning of prior civil rights cases was inapplicable because, the state now asserted its power to enact the civil rights legislation under the commerce power, rather than the Equal Protection Clause.^[32] The court held that Title II of the Civil Rights Act of 1964 was constitutional.^[33] This ushered in the era of employment discrimination legislation, because Congress had found a way to implement regulation of private parties constitutionally.

C. Statutory Background

Title VII of the Civil Rights Act of 1964 addresses employment discrimination, including discrimination perpetrated by private employers. More specifically, Title VII prohibits employment discrimination against protected categories. In light of the Heart of Atlanta Motel decision, there has been little debate that Title VII is constitutional.^[34] Today, Title VII generally protects minority groups from employment discrimination.

Although some have argued that belonging to a protected class is not statutorily required in certain situations, courts have determined that belonging to a protected class is indeed required.^[35] Thus, the first element of any Title VII discrimination claim is belonging to a protected, i.e., an enumerated, class. The following classes constitute the legally protected classes: race, color, religion, sex, and national origin.^[36]

Accents, at least foreign accents, are protected under the national origin classification.^[37] This is because national origin and accent remain “inextricably intertwined” and failure to recognize accent discrimination as actionable would allow employers to covertly discriminate on the basis of national origin.^[38] Thus, in order for an accent to be legally protected, the group identified by the accent must qualify for national origin protection. The easiest way to understand this is to picture national origin protection as the umbrella under which accent is sheltered. Accent is granted protection under the national origin umbrella because an employer can auditorily discern national origin based upon an employee’s accent and, without legal remedy, discriminate against the employee because of his or her national origin.^[39] This is especially true for Appalachians who have a distinctive accent but who nevertheless lack legal protection.

Because courts have denied Appalachians, and Southerners in general, Title VII protection by holding that they do not constitute a protected class under the national origin prong,^[40] it is important to understand the abstract, legal concept of national origin. Unfortunately, the legislature has failed to provide any guidance in its debates, and committee reports as to national origin’s meaning.^[41] As a result, the Equal Employment Opportunity Commission (EEOC) and courts have stepped in to define the term. Both the EEOC and the Supreme Court have noted that national origin does not refer solely to the place where a plaintiff is born. In fact, the EEOC defines national origin as a plaintiff’s “or his or her ancestor’s, place of origin . . . .”^[42] Likewise, the Supreme Court has described national origin as “the country where a person was born, or, more broadly, the country from which his or her ancestors came.”^[43] Despite this broad interpretation, protection has not been extended to Appalachians.

1. Types of Discrimination Claims under Title VII

For those whom Title VII protects, the law protects them against discriminatory discharge, discriminatory failure to hire, and discriminatory action regarding “compensation, terms, conditions, or privileges of employment . . . .”^[44] There are two primary types of discrimination claims. The first is known as disparate impact claims. Disparate impact claims allow an individual to sue based upon an employer’s actions that unintentionally discriminate against a protected class of persons.^[45] The second type of discrimination claims is known as disparate treatment claims, and they allow an individual to sue based upon an employer’s actions that intentionally discriminate against an individual because of his or her membership in a protected class.^[46] Therefore, Title VII protects both the class and the individual. Other discriminatory suits may also be available to those who are protected. For example, discriminatory harassment is actionable under Title VII.^[47] Although most people immediately correlate harassment with sexual harassment, other protected classes can also provide the basis for harassment claims under Title VII.^[48] Denying Appalachians protection under Title VII deprives them of all these claims that are necessary for justice and equality.

2. Purpose of Title VII

“The legislative history of Title VII suggests both that Title VII was intended to remedy discrimination against historically disadvantaged groups, particularly “Negroes,” and that the statute’s broader purpose was to eliminate prohibited employment discrimination as applied equally to all within certain categories.”^[49] Despite being a historically disadvantaged minority group, Appalachians are routinely deprived of necessary protection by the courts under Title VII. There are four primary cases in which the courts have considered whether Title VII protects Appalachians, or Southerners in general, and all four^[50] have asserted that both Appalachians and Southerners do not qualify for protection.^[51]

Higginbotham v. Ohio Department of Mental Health provides the most in-depth analysis of why Appalachians cannot recover under Title VII. However, the analysis is dicta.^[52] In Higginbotham v. Ohio Department of Mental Health, the plaintiff was a white Appalachian woman who worked as a nurse.^[53] She alleged, inter alia, that her African-American supervisors had discriminated against her by harassing her, criticizing her Appalachian culture, ignoring her approved leave-time, and “giv[ing] her unwarranted negative job performance evaluations.”^[54] Although the case was dismissed because of a procedural defect,^[55] the court continued its analysis by saying that even absent such a defect, the plaintiff would be unable to recover because Appalachian is not a protected category.^[56] The court asserted that Appalachians lack a unique common origin.^[57]

Schafer v. Cost Plus Inc.^[58] addressed Southern accent discrimination directly. In Schafer, the plaintiff was a middle-aged white female who had been hired in September of 1999 and mainly worked as a cashier.^[59] She had a thick Southern accent.^[60] Her manager told her that her accent “was not cute” and sounded “ignorant.”^[61] Months after she had started working, the manager told her to shorten her intercom pages because she was difficult to understand.^[62] The plaintiff also alleged that the manager criticized her accent and told her that nobody liked her.^[63] She complained to the human resources department about other alleged workplace incidents but believed that human resources failed to appropriately investigate.^[64] When the plaintiff sued under Title VII, the court held that the employer was free to discriminate based on Southern origin, because Title VII does not protect Southerners.^[65] The court further acknowledged that no court has ever recognized Southern as a protected category.^[66] It is under this sociological and legal background that this article seeks to demonstrate that Title VII has been misconstrued by the courts.

III. Analysis

This section will explore three specific reasons that exemplify Title VII’s misinterpretation: (1) Appalachians represent a distinct population that is discriminated against similar to other minority groups; (2) Appalachians and their unique accents are traceable to various but identifiable nations of origin; and (3) courts have expanded “national origin” to include “place of origin.”

A.

This part of the analysis will document how Appalachians have faced discriminatory treatment similar to those of other minority groups. In addition, depictions of discrimination against Appalachians are provided to illustrate that a pervasive culture of Appalachian stereotyping exists that needs to be addressed, especially within the employment sphere. Finally, this section will also briefly discuss Title VII’s underlying purpose.

Appalachians represent a distinctive population whose members have faced many of the same types of discrimination that other minorities have encountered. For example, city school systems have discriminated against Appalachian children by considering them unteachable^[67] and allowing teachers to refer to them as though they were animals or objects rather than human beings.^[68] Similar to how majority races have attempted to avoid integration with minority races (known as “white flight”),^[69] city natives have often removed their children from particular schools to avoid integration with Appalachian children.^[70] Teachers have condemned Appalachian students’ linguistical characteristics and, in the past, set out to create non-native-speaker programs for Appalachian students.^[71] School systems have viewed and treated Appalachian students as “other.”

This discriminatory treatment is not lost on children. According to psychology researchers Katherine Kinzler and Jasmine DeJesus, by the age of five, Northern children prefer Northern-accented persons.^[72] By the age of ten, both Northern and even Southern children consider Northern accents to belong to smarter individuals and those individuals more likely to be in charge.^[73] Not only did children prefer Northern accents, but Northern children may even categorize Southern accents as foreign rather than American.^[74] Even by their peers, Appalachians are seen and treated as “other.”

Such invidious treatment follows Appalachians home and into adulthood. Adult city residents treat Appalachians no better than does the school system or children. Neighbors often verbally express negative sentiments about their Appalachian neighbors. For instance, “A Chicago police captain described Appalachian migrants as 'worse than the colored . . . vicious and knife happy.”^[75] Thus, even individuals within arguably the most important governmental institution have viewed and treated Appalachians as “other.”

The stereotypes of lazy, unintelligent, immoral, and violent have also followed Appalachians into the workforce. When Appalachians move from the Appalachian Mountains, employers often outright refuse to hire them because of their origin,^[76] which is quickly discernable based on their accent. Fellow employees make it known that they do not want dirty, unintelligent, backwoods Appalachians taking their jobs.^[77] Even if hired, employers frequently refuse to promote Appalachians.^[78] In the workforce, employers and coworkers treat them as “other.” This invidious treatment, rooted in national origin discrimination, is precisely what Title VII is intended to prevent. Congress passed Title VII specifically “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group . . . .”^[79] Nonetheless, these stereotypes continue to “flourish[]”^[80] and harm Appalachians.

Like racial minorities, Appalachians are discriminated against because of a status that they did not choose and are unable to change. Appalachians did not choose to be born in the Appalachians. They cannot change where they were born or raised. They have no control over their origin, just as those from other locations or of different races lack control of these defining features. Title VII was meant to prevent discrimination based on such arbitrary and immutable distinctions as one’s place of birth. “The spirit of the law is clear: an employer may not reject a job candidate, or fire or refuse to promote an employee, because that employee externalizes in some way an allegiance to another culture.”^[81] The purpose of the law strongly suggests that Appalachians and their harshly judged accent should be legally protected.

However, despite Title VII’s admirable purpose and the apparent similarities between Appalachians and other minority groups, the legal system has failed to protect Appalachians. Appalachians represent a distinctive population that, like many other minority groups, need judicial protection of equal opportunity to obtain employment. This is a leading reason why Appalachians should be protected under Title VII’s national origin prong.

B.

This section will examine Appalachian ancestry, i.e., national origin. It will demonstrate that courts have inconsistently applied the national origin test and muddled its meaning. The following paragraphs will also demonstrate that courts have failed to adequately analyze Appalachian national origin by looking only to the minority group’s current physical location in America, rather than applying the legally correct context of ancestry. These shortcomings have resulted in convoluted and incorrect applications of Title VII’s national origin prong to Appalachians.

Cases that have addressed Appalachian or Southern discrimination under Title VII have done little analysis regarding why those groups are not protected under the national origin prong. The Williams v. Frank court stated only that “Southerness is not a protected trait.”^[82] Another court specifically relied upon Williams’ reasoning, which is no reasoning at all.^[83] A third court stated that regional differences within the United States cannot serve as the basis for Title VII claims, without explaining why.^[84] The entire analysis of these three courts can be summarized as “it is, because it must be.” This is mere conclusory “analysis.” One court (in dicta) has provided an explanation, albeit brief, for denying Appalachians protection under Title VII. That court actually incorporated language from a wholly separate case (which addressed issues under Title VI, rather than Title VII, and other inapplicable legislation) asserting that “Appalachians do not have a common national origin other than that which they share with the general population of this country.”^[85]

However, this is inaccurate, as discussed in further detail below. Perhaps, Grady McWhiney put it best when he wrote, “[t]here has been all too little understanding of the ethnic background of white Southerners.”^[86] The North and the South were on different trajectories even before the Civil War. Since settlement, the South has been largely Celtic and the North predominately English.^[87] The Celtic and English cultures clashed long before the groups even moved to America, and they brought this cultural divide with them,^[88] continuing even today. Appalachians do have a unique national origin that differentiates them; they are markedly Celtic, unlike their Northern peers. In particular, Appalachians can trace their ancestry back to Scotland, Ireland, Germany, England, Wales, and a group called the Scotch-Irish.^[89] Although there is some slight English overlap, to say that Appalachians lack a unique national origin that binds them together as a distinct subculture is to blatantly ignore American history. Appalachians’ Celtic ancestry, compared with the North’s English ancestry and nature^[90], has shaped much of American and even world history.^[91] They are two distinct groups whose differences derive predominately from ancestry.

Furthermore, at least one other court has blatantly demonstrated that the Higginbotham court’s conclusion rests upon unsound reasoning. As illustrated by Roach v. Dresser Industrial Valve & Instrument Division^[92], a case in which the court devoted far more space to analyzing the problem of regional-group protection, national origin claims can be based upon an origin that consists of multiple nations and even nations of origin that many other Americans share.^[93]

Although Appalachians are denied Title VII protection, Acadians (“Cajuns”) are given protection.^[94] In Roach, the plaintiff, like Appalachians, was born in America.^[95] However, the plaintiff sued his prior employer claiming that he was discriminated against because of his national origin, i.e., Acadian ancestry.^[96]

Acadia was a French colony that originally included Novia Scotia, New Brunswick, and modern-day Maine.^[97] The colony’s national claim was swapped between the French and the British multiple times during the 1600 and 1700s.^[98] As a result, Acadia was a “multi-national group” made-up of people from France, Scotland, Ireland, and England.^[99] In the mid-1700s, while Acadia was in the hands of the British, war between England and France was looming.^[100] The British asked their Acadian subjects to sign an oath to bear arms against France in the event of war.^[101] When the Acadians balked, the English king took the Acadians’ land and deported them.^[102] The Acadians eventually made their way back across the ocean, and many settled in Louisiana during the mid to late 1700s.^[103] Despite the fact that Acadia was at one point, at least partially, located in America^[104] and consisted of persons from multiple nations, Acadians have been granted Title VII protection.^[105] The court concluded by acknowledging that “[d]istinctions between citizens solely because of their ancestors are odious to a free people whose institutions are founded upon the doctrine of equality . . . .”^[106]

Like Acadians, Appalachians can be traced to various but identifiable foreign nations of origin. Whereas Acadians can trace their ancestry to France, Scotland, Ireland, and England, Appalachians can trace their ancestry back to Scotland, Ireland, England, Germany, Wales, and a group called the Scotch-Irish.^[107] There is a common foreign, albeit multi-national, ancestry, just as with Acadians.

Furthermore, the Appalachian trait that people arguably most judge and discriminate against—their accent—can be traced back to an even more narrowed ancestry. Most of what people hear and adversely judge derives from Scotland (and Scotch-Irish) and, to a far lesser extent, England. The way Appalachians speak is archaic^[108] and stems from the isolation of their ancestors.^[109] The speech is of the Elizabethan era and produces a uniquely Scottish speech pattern.^[110] In fact, despite the presence of other nationalities, linguistically “Scots appear to have had it all their own way.”^[111] Words and phrases, such as “skift,” (there is a skift of snow on that porch), “pooch,” (my stomach pooches out in these jeans), and “backset” (he seemed to be gettin’ better, but he’s took a backset with that cold) are Scottish.^[112] The much-detested “a-verbs” also have Scottish roots (I’m a-fixin’ to, Mom).^[113] Words and phrases, such as “reckon” (I reckon I should be gettin’ home), “hit” (that poor dog, hit ain’t got no sense), and the dreaded double negative (I don’t want none, Mom) are archaic English.^[114] What people and employers are negatively responding to is an accent derived heavily from Scotland and England—specific foreign nations. In particular, they are discriminating against a largely Scottish ancestry.

However, relevant cases have not addressed this aspect of Appalachian discrimination and have instead ruled against Appalachians qualifying as a protected class under the national origin prong.^[115] This is an issue that needs to be brought before and addressed more fully by the courts. Based upon Appalachians’ multi-faceted but identifiable national ancestry, Appalachians should clearly qualify for national origin protection against employment discrimination.

C.

This section explores the court’s expansion of the term “national origin” to mean "place of origin. The following paragraphs demonstrate that courts have deemphasized nation and location and have chosen to covertly (or sneakily) focus on ancestral ties to groups not wholly regional in nature.

Further complicating the legal issue, courts have expanded “national origin” to include “place of origin.” The ninth circuit, which has been instrumental to Title VII interpretation, has pointedly stated that “a claim arises when discriminatory practices are based on the place in which one’s ancestors lived.”^[116] Title VII is unconcerned about “[t]he current political status of the nation”^[117] or national boundaries.^[118] A logical reading suggests that this means a plaintiff does not have to point to a nation of origin but instead to a distinctive place. In other words, this language suggests that “national origin” does not mean legally recognized national status, but instead means a physically recognizable and distinct area that houses a unique people. Therefore, “place of origin” would constitute an expansion of “national origin’s” definition.

The idea of “place of origin” is explored in Dawavendewa v. Salt River Project Agricultural Improvement & Power District.^[119] In that case, a Native American sought protection under Title VII, and the court ruled that Title VII’s national origin prong does indeed protect Native Americans against employment discrimination.^[120] However, if one reads “place” literally to mean a physical place, the court’s decision creates a stark contradiction when compared to the Southern and Appalachian employment discrimination cases. Native Americans and Appalachians can both point to physical locations for their origin. Likewise, both Native Americans and Appalachians’ current origins are physically located within the United States. Native Americans are protected, but Appalachians are not. There must be some other distinction to reconcile the difference in legal protection.

One could naturally presume that this distinction must arise because the court applies “nation” strictly, such that Native Americans garner protection, but Appalachians do not. However, Native American nations are no longer independent nations but “are generally treated as domestic dependent nations . . . .”^[121] The court intentionally uses the word “generally,” because legal recognition of Native American tribes has been less than consistent throughout America’s history.^[122] Although the highly complicated area of Native American law is beyond the scope of this article, it is important to realize that the Dawavendewa court is attempting to proactively avoid allowing discrimination against Native Americans who may struggle to navigate the complex federal recognition system and historical tracing difficulties. In order to proactively protect these persons, the Dawavendewa court boldly states that “even if the various tribes never enjoyed formal ‘nation’ status, . . .” tribal members would still be protected under Title VII.^[123] This statement may have far-reaching consequences. The court’s statement clarifies that its focus is not on formal national status but on “place of origin.” However, at the same time, the court does not emphasize location.

1. How Do Dawavendewa and Roach Relate to the Problem of Appalachian Protection?

Perhaps inadvertently, the courts have created a muddled mess. In summary, the Dawavendewa court determined that national origin means “place of origin.”^[124] Native Americans are protected under this “place of origin” standard, even though they are physically located inside the country.^[125] The court stated that “place of origin” is not dependent upon legal recognition of national status either.^[126]

Meanwhile, Appalachians are not protected. Like Native Americans, they are physically located within the United States. They are not legally recognized as a nation, but the Dawavendewa court said that national recognition would not determine national origin status. This appears contradictory. One might be tempted to decide that Native American tribes are just a unique, singular exception. However, legal protection of Acadians, as permitted in Roach,^[127] presents substantial problems for this reconciliatory theory.

Acadia was a French colony^[128] that originally included Novia Scotia, New Brunswick, and modern-day Maine.^[129] Thus, although Novia Scotia eventually became known as the focal-point for Acadians,^[130] many Acadians have ancestral roots in what is now America. This means that Acadians may find ancestry not, physically at least, from foreign soil, but from what is now legally American soil. The Acadians were deported from Acadia, while it was under British rule, and later resettled in modern-day Louisiana,^[131] creating a cultural subgroup within America. The court has held that Title VII’s national origin prong protects this cultural subgroup.^[132] Additionally, the court rejected the employer’s argument that national origin discrimination could not be based upon a place of origin that “is not and never was an independent nation . . . .”^[133] This is the same basic fact pattern that the Dawavendewa court addressed with a different protected group, Native Americans. Therefore, Dawavendewa does not appear to be simply an anomaly.

2. If Not Location or National Status, What is Determining National Origin Decisions?

In light of Appalachians’ ability to trace ancestry to foreign nations, the expansion of “national origin” to include “place of origin” leaves no room for denial of Appalachian protection based on physical location or lack of national status. This expansion of the legal term of art emphasizes the more difficult-to-ascertain, but more central concern of the national origin prong—ancestry. The judicial application of Title VII in Dawavendewa and Roach demonstrates that a plaintiff’s ability to succeed on a national origin claim depends most heavily upon the plaintiff’s ability to trace his or her lineage to more than a solely regional group. Because, Appalachians’ ancestry and most prominently, their discriminated against trait—accent—can be traced back to identifiable nations, the court should logically be unable to deny them protection under Title VII.

IV. Solution

This section seeks to provide a legally-sound and logical solution to the problem of Appalachian-targeted employment discrimination. The following paragraphs set forth two potential solutions, in the alternative. The first potential solution is a judicial overhaul of Title VII’s current interpretation. The second potential solution is additional enactment of anti-discrimination legislation, such as local ordinances. Although proper implementation of either solution would likely resolve the problem, ordinance creation may be an easier and clearer solution in the sense that it would allow for a clean-slate.

The courts have created a muddled mess that is extremely disjointed, with extremely little analysis devoted to Appalachian protection (or rather denial thereof) under Title VII. In an attempt to ensure that politically favored minorities are protected while simultaneously excluding less likable groups, such as Appalachians, the current system has created an incohesive set of rules. Judicial reinterpretation, or rather judicial clarification that would logically lead to different conclusions for Appalachian discrimination cases, would solve this dilemma. For example, looking at seemingly contradictory statements made in cases deemphasizing “nation”^[134] and regional status^[135] to the application of “national origin” protection, one can deduce that the court’s main concern in Title VII cases is ancestry. Clarifying cases to make it clear that ancestry is indeed the key to national origin cases would allow Appalachians, like Acadians, to prove what this article has already demonstrated—that discrimination against them is based upon animosity toward foreign status and especially foreign linguistical characteristics. That, in turn, would result in Appalachian protection under the national origin prong of Title VII. However, such a judicial solution would require a test case to be brought before the courts and would likely result in lengthy and costly litigation.

A better solution may be found in enacting additional anti-discrimination laws to supplement Title VII and specifically protect Appalachians. This is not a wholly new idea. Cincinnati, Ohio, enacted an ordinance that specifically protects those of Appalachian origin from employment discrimination.^[136] Cincinnati law states explicitly that the term “discriminate” includes protections for “Appalachian regional origin.”^[137] Like the proposed Title VII clarification, the Cincinnati ordinance makes clear that Appalachian origin depends upon ancestry.^[138] The Cincinnati ordinance traces Appalachian origin back two generations, to the person’s grandparents.^[139] Thus, the law offers far-sweeping protection for Appalachians.

Enactment of city ordinances as a solution to the Appalachian protection problem poses several noteworthy benefits. Ordinances would not require judicial action. There would be no inherent need for a test case and the accompanying costly and lengthy litigation process. Ordinances would not necessarily need to be enacted across all states or states in their entirety. Instead, ordinances could effectively be enacted in those areas in which they are most needed. Appalachian towns tend to be small. In fact, roughly one-fourth of Appalachian counties are rural.^[140] The extremely close-knit nature of these communities^[141] and devotion to their ancestral identity^[142] helps to prevent widespread discrimination against those perceived as their own based on a shared ancestry and the resulting linguistical characteristics. The far larger problem of Appalachian discrimination is faced by those who move from the Appalachian region, known as Urban Appalachians.^[143] Enacting ordinances in large cities with the highest concentrations of Urban Appalachians, i.e., those who are most likely to face discrimination, would likely result in the most efficient means of resolving the Appalachian discrimination problem.

V. Conclusion

This article has illuminated a particular problem created by unclear, disjointed, and outright confusing interpretation and application of Title VII of the Civil Rights Act of 1964. More specifically, it has explored the problem of employment discrimination perpetrated against Appalachians within the larger Title VII framework. The piece presented three primary reasons why the current Title VII interpretation needs to be reconsidered: (1) Appalachians represent a distinctive population that is discriminated against similar to other minority groups;
(2) Appalachian accents are traceable to various but identifiable nations of origin; and (3) courts have expanded “national origin” to include “place of origin.” The longstanding history of discrimination against Appalachians has contributed to current societal and economic problems faced by the minority group. As with other oppressed minority groups, courts should interpret Title VII to protect disadvantaged Appalachians. Furthermore, Appalachians, like foreign national minorities, can trace their heritage (and, especially, their discriminated-against trait) to identifiable foreign populations and countries of origin. This should place them on equal footing with their national origin-protected peers. Finally, courts have expanded “national origin” to include “place of origin,” thereby emphasizing the importance of ancestry rather than legal nationality or physical location in the analysis of national origin protection. This provides additional support to protecting Appalachians under Title VII.

The article proceeded by providing two alternatives to solving the current Appalachian-targeted discrimination problem. First, the article proposed that judicial clarification of Title VII interpretation and a reanalysis of Appalachian-targeted discrimination so as to protect the Appalachian minority could solve the presented problem. As a second, alternative, solution, the author advises that enactment of additional anti-discrimination legislation, namely local ordinances in large, non-Appalachian cities, could provide the most efficient and effective solution.

The author hopes that readers have gained helpful insight regarding an often-overlooked problem within current employment discrimination law. Along with generating awareness, this article aims to encourage others to contribute to solution attainment.