What can employers do if an employee struggles to be understood by the company’s client base because of his or her heavy foreign accent? When can employers take action because the employee’s lack of English fluency is affecting job performance and the company as a whole? What risks are involved with such actions?
These are common questions in today’s workplace. The most recent United States Census Bureau data shows that a record 60.6 million people speak a language other than English at home in the US, and that 41 percent of the 60.6 million rate their speaking ability as less than “very well,” or do not speak English at all. With such linguistic diversity, there is increased sensitivity and scrutiny around employer policies relating to an employee’s ability to speak English on the job. Thus, before formalizing such a policy, employers should familiarize themselves with its risk and legality.
When English Fluency Is Essential To Effective Job Performance – A Case By Case Analysis
The Equal Employment Opportunity Commission (“EEOC”), in its National Origin Discrimination guidance, states: “National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” Because the language an employee speaks and the accent an employee uses are often associated with national origin, language fluency requirements and employment actions based on an employee’s accent may be discriminatory based on national origin in certain cases.
Under EEOC guidance and federal case law, an employer can require an employee to speak fluent English if English fluency is essential or crucial for effective job performance. Similarly, an employment decision based on foreign accent does not violate Title VII if an individual’s accent materially interferes with the ability to perform job duties. See Fragante v. City and County of Honolulu, 888 F.2d 591 (9th Cir. 1989) (“There is nothing improper about an employer making an honest assessment of the oral communication skills of a candidate for a job when such skills are reasonably related to job performance”); Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392 (S.D.N.Y. 1999) (same). Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still make any determination on a case-by-case basis, since an individual’s lack of proficiency or particular accent may interfere with job performance in one situation but not another. For example, an individual in the stock room of a store may not be able to perform the duties of a cashier in the same store due to lack of English fluency. And a cashier with fluency in spoken English may not be qualified as a manager due to lack of fluency in written English. Therefore, blanket fluency requirements that apply equally to all positions within an organization carry a high risk of being found discriminatory.
Employers must avoid making generalized assumptions about lack of language fluency merely because the employee has a discernible foreign accent and focus exclusively on the legitimate communication problems affecting job performance. Indeed, courts have focused on this distinction and employ a “very searching look” at each individualized situation, as it would be “easy refuge” for an employer discriminating based on national origin to falsely state that it made employment decisions based on an applicant’s or employee’s inability to measure up to communication skills demanded by the job. See Frangante, 888 F.2d at 596. Further, this assessment depends upon the specific duties of the position in question and the extent to which the individual’s accent affects his or her ability to perform job duties.
Prior to implementing policies requiring English fluency or making adverse employment decisions based on an employee’s accent or language ability, employers should carefully evaluate the reasons for their actions and make sure they can articulate why the particular position requires a set level of English proficiency and how the employee’s language skill or accent interferes with those job duties. When addressing these issues, employers should keep in mind the following:
- If applicable, employers should document in their handbooks and training materials why effective communication among employees is crucial to the overall mission of the company.
- Each job description should set forth why effective communication is necessary for the completion of the essential job functions.
- English fluency requirements enacted by the company must be essential or crucial for effective job performance.
- Policies regarding English fluency should be specifically tailored for each job, and should not be broadly applied to all positions within an organization.
- Treating applicants or employees differently because of a foreign accent is only lawful if the accent materially interferes with being able to effectively perform job duties.
- Employers must distinguish between a discernible foreign accent that has no impact on the job duties of a position, and one that actually interferes with job performance.
- Employers should document the individual’s issues with communication and how it affects job performance (e.g., customers had trouble understanding the individual).
According to the EEOC, workplace discrimination complaints based on national origin, including those involving language ability, increased by 76 percent from 1997 to 2011, coinciding with a more ethnically diverse workforce. This trend shows no sign of slowing. Employers therefore must be cautious when seeking to take action based on an employee’s lack of English fluency or difficulty communicating due to accent, and should contact an employment law specialist if they require further guidance.