8(a) Program: Accent, Lack of English Proficiency Not Evidence of Bias

A Bulgarian immigrant’s thick accent and lack of English proficiency were not evidence of bias, and did not support the immigrant’s 8(a) Program application.

In a recent 8(a) Program decision, the SBA Office of Hearings and Appeals expressed sympathy for the language difficulties many immigrants face, but held that such difficulties, by themselves, do not constitute evidence of “social disadvantage” for 8(a) Program purposes because the 8(a) Program requires a showing of bias or prejudice.

OHA’s decision in Express Plus Staffing, SBA No. BDPE-533 (2014) involved the 8(a) Program application of Express Plus Staffing, LLC.  Express Plus applied to the 8(a) Program in 2013.  Express Plus’s application was based on the social and economic disadvantage of its owner, Georgetta Duncan.

Ms. Duncan is a Bulgarian immigrant.  Ms. Duncan’s social disadvantage narrative recounted, in part, various professional struggles that Ms. Duncan had experienced in the United States because of her thick accent and lack of English proficiency.

The SBA denied Express Plus’s application.  The SBA’s denial letter stated that Ms. Duncan’s thick accent and lack of English proficiency were non-discriminatory reasons for her professional struggles.  Because Ms. Duncan had not shown that her experiences were based on bias or prejudice, she had not proven herself to be socially disadvantaged within the meaning of the 8(a) Program regulations.

Express Plus filed an 8(a) Program appeal with OHA.  Express Plus contended that the SBA had erred by finding that Ms. Duncan had not demonstrated her social disadvantage.

OHA held that the SBA had appropriately evaluated Express Plus’s 8(a) Program application.  With respect to the portion of Ms. Duncan’s social disadvantage narrative dealing with her struggles as an immigrant, OHA wrote:

There is no doubt that the life of an immigrant can be frustrating, frightening, and lonely. However, as the SBA concluded, this is not evidence of social bias. Although the Court is convinced that Ms. Duncan and other first-generation immigrants are often at a distinct social disadvantage in the United States, it is not a social disadvantage the 8(a) BD Program is designed to remedy. “Immigrant” is not an ethnicity. Petitioner must therefore show that her social disadvantage is the product of bias against her due to her status as a Bulgarian. Neither PES recounted a single incident specifically connected to that ethnicity. Indeed, Petitioner acknowledges throughout both PES’s that most of Ms. Duncan’s professional struggles relate to her thick accent and lack of English proficiency. She has therefore provided non-discriminatory explanations for her lack of business success.

OHA denied Express Plus’s appeal.

The Express Plus Staffing decision is a good example of a common misconception about what it means to be “socially disadvantaged” for 8(a) Program purposes.  Applicants often believe that “social disadvantage” simply requires an applicant to write–for lack of a better term–a “sob story” about the various difficulties the applicant has faced in his or her life.  But the SBA is looking for something more than a country song before you play it backwards.

The social disadvantage narrative must describe negative experiences, but the applicant must also show that he or she has been “subjected to racial or ethnic prejudice or cultural bias within American society.”  In other words, the applicant must demonstrate that the negative experiences occurred as the result of prejudice or bias.  It is the connection between negative experiences and bias that Express Plus Staffing–like many other 8(a) Program applicants–failed to make.

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