Justin C.S. Kim v. Commandant, Defense Language Institute, Foreign Language Center, an Agency of the United States Government

Justin C.S. Kim, plaintiff-appellant, was passed over for the position of Korean Training Administrator in the Defense Language Institute (DLI), an agency of the United States government. He filed an employment discrimination complaint alleging that he and other non-native English speakers were discriminated against on the basis of national origin in violation of Title VII of the Civil Rights Act. Kim, whose place of national origin is Korea, objects specifically to the English Language Oral Proficiency Test (ELOPT) and the minimum score required by the DLI to qualify for the Training Administrator position.

All four of the candidates for the Korean Training Administrator position who took the ELOPT were Koreans. Kim was the only candidate not to achieve the required minimum score on the ELOPT. Of the three qualifying Koreans, one was ultimately selected to fill the position.

Without ruling on Kim’s request for certification of the class of non-native English speakers in order to bring a class action, the district court granted defendants’ motion for summary judgment and dismissed the complaint. Plaintiff appeals.

ANALYSIS

I. Disparate Impact

The district court was correct in…