If an employee speaks with a heavy accent and is having difficulty performing her customer service responsibilities, is it considered discrimination if you fire her because of concerns about her ability to communicate effectively? What if you don’t fire her, but her co-workers are highly critical of her accent?
These are questions facing many employers as national origin discrimination complaints have skyrocketed – increasing by 76 percent between 1997 and 2011 according to the Equal Employment Opportunity Commission (EEOC).
Below are two examples of this type of EEOC complaint:
- The claimant, Ismail Aliyev, argued that the company, FedEx, fired him because of his Russian accent. The job required that drivers be able to communicate in English. Aliyev argued that his English is understandable and he should not have been fired.
- The claimant, an Iraqi worker in a Phoenix hotel, won a $500,000 settlement from the Four Points Sheraton, claiming that co-workers made fun of his accent and called him derogatory names. The employer was found guilty of not taking his complaints of a hostile work environment seriously.
Clearly this is an important issue, particularly with America’s increasingly diversified workforce. Census.gov reports that in 2011 more than 60 million Americans spoke a language other than English at home. Of these, more than 37 million spoke Spanish or Spanish Creole.
What does the law say?
According to NOLO, fluency and English-only requirements may be legal if these capabilities are needed to effectively perform a job position. That said, these kinds of rules cannot be adopted for discriminatory purposes with the intent to screen out certain types of workers. They must also be universally applied to workers of all nationalities. Furthermore, rules must be narrowly tailored to address specific needs of your workplace. NOLO says that accent rules are closely scrutinized by courts, and generally, employers cannot adopt a broad rule saying that accented workers cannot work in customer service.
LegalMatch.com specifies: “An employer may not discriminate based on a person’s accent if the accent doesn’t materially interfere with the job performance.” The website says that employers must consider:
- The communication level required by the job
- Whether a relevant, unbiased listener could understand the worker
- If accommodations (such as a speaking class) can reasonably be given
- If there are discriminatory motivations present with anyone complaining about the accent
- First and foremost, be aware of this employment liability exposure and proactively educate your leadership team about your non-discriminatory standards.
- Ensure that job descriptions and your employee handbook are up to date and accurate.
- If you feel that a fluency or English-only requirement is needed in your workplace, consult with an experienced attorney before taking any action and proceed judiciously.
- If you don’t have employment practices liability insurance (EPLI), consider it. It can defend your company against a wide range of EEOC related complaints.
Want to learn more? Contact a business insurance expert at Higginbotham Insurance.