Pizza job applicants must have “no audible accent”: Is that even legal?

The co-owner of FBI Pizza in Toronto says he has retracted a job ad that triggered furious debate online and in the local media yesterday, because, in his words, “the wording could have been misconstrued, and I apologize for that.”

In the ad, Sean Tanha had specified that applicants for a customer service representative—someone who would take pizza orders by phone—have “no audible accent.”

On Reddit and Twitter, the owners of FBI Pizza (FBI stands for Full-blooded Italian) were immediately accused of being discriminatory, a label Tanha says he found offensive, even laughable because “it’s so not true.”

His new job ad will list “strong English skills” as opposed to “no audible accent,” Tanha, tells Yahoo Canada.

“Listen,” he adds. “I would absolutely consider you if you’re from the UK and you have a very thick British accent, as long as you’re able to take down street names correctly and there are no spelling mistakes or confusion.”

He insists that his intention was (and still is) to hire someone who would be the best possible communicator for his customers. “I’m personally tired of calling these big corporations who outsource their customer service to someplace overseas and getting to the end of the call without having an issue resolved, or getting charged even more on my bill the next month because of a misunderstanding,” he says. “Sometimes it's really questionable whether [the representatives] can actually understand and help the consumer way they should be able to.”

To him, this dilemma has nothing to do with race. “My wife is African-American. I have got people from around the globe in my restaurant. People who are Somali, Mongolian, Vietnamese, Italian, Bangladeshi. I’ve literally got the whole globe in here.”

Few legal ambiguities

Tanha’s proposed new wording for the job ad would likely put the company on stronger legal ground if anyone were to raise a formal complaint about the listing, according to Marc Kitay, a lawyer with Whitten & Lublin Employment Lawyers in Toronto.

A business owner’s intentions are irrelevant. All that matters is the effect.

Kitay feels that—on the surface and without deeper analysis— requiring “no audible accent” for a pizza shop service job appears to be a violation of Canadian and Ontario human rights laws. A business owner’s intentions are irrelevant, he adds. All that matters is the effect, and when it comes to discrimination based on accents, the law is pretty clear.

“People who have accents tend to have them because of their place of origin, so to say to somebody, ‘I don't want you to work in my business because you have a French accent or a Thai accent,’ what you’re effectively saying is, ‘I don't want people who come from your place of birth,’” says Kitay. Ethnicity and place of origin are prohibited grounds for discrimination under the human rights code in Ontario, and in other provinces, and under Canada's federal human rights laws.

Kitay also draws attention to Section 23 of the Ontario code:

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

What does the job require?

One of the key questions about this job listing debacle is whether the stated requirement is even something that’s absolutely necessary for the position. It’s true that in some jobs, there may be a “bona fide occupational requirement” (BFOR) that can legitimately exclude certain people from specific positions, even if the exclusion is based on something like age or language ability. But whether “no audible accent” can be called a BFOR for a job taking pie orders with or without anchovies is iffy at best. In practice, that kind of question may not be something that all judges would agree on.

Kitay’s personal take is that, sure, having a pizza show up at the wrong door might be an inconvenience, and the company may lose money over it, but, “There’s no risk that someone is going to lose a life.”

His advice to employers is to consider what one wants in applicants and, when writing out the job’s must-haves, avoid blanket statements that risk adverse effects. In other words, there are many people with audible accents who could do the pizza phone job perfectly, so not giving anyone who may be proficient in English but have an accent a chance to even apply for the job is more further-reaching than necessary, not to mention potentially illegal. “ ‘Must be proficient in English’ sets a requirement that anyone could conceivably achieve. ‘No audible accent’ says, “None of you can apply.”

In fact, according to the lawyer, there’s still no guarantee that insisting on “strong English skills” in this scenario would be legally defensible.

“The problem is that accents are often used as a cover for actual racism,” says Kitay. “Employers may say there’s a distinction, when it actually speaks to something else.” So, telling an applicant who shows up for an interview that he or she can’t have the job because his or her accent is simply not clear enough might also be considered a violation.

By contrast, the Medieval Times, a dinner theatre company that invites customers to watch a 11th-century style jousting tournament before feasting on roast chicken, is currently hiring for the roles of King and Lord Chancellor/MC at its Toronto location. Its ad for these openings states that a received pronunciation (RP) English accent is required for both characters.

Presumably there’s no legal issue here, since that’s an accent that anyone with a habit of binge-watching BBC dramas, a flexible tongue tip, and the ability to blow kisses while saying the word “swan,” can easily fake.