Imagine you’re a customer service manager and you have a phone rep from, say, Ghana (or Uzbekistan, for that matter), who has what you and a lot of your customers consider an odd accent. Several of them have told you so. Sure, everybody can understand her, and she’s perfectly competent, but still, that accent…
Wouldn’t it be easier for everybody if you just got rid of her? Maybe not fire her – that would be going overboard – but put her in a back-of-house situation where she’s not interacting with customers. Maybe you can use her in the warehouse.
If you were the manager involved and that were your thought process, you’d be on your way to committing illegal language discrimination, a form of national origin discrimination.
On the other hand, if the same person spoke English in such a fractured way that she regularly drove customers away, you’d have an entirely different situation. In that case, you WOULD be justified in taking action. And you could do it without breaking the law.
But how can managers be sure whether they’re facing situation 1 or situation 2?
In real life, this may be a close call. If you understand the key concept in the law, however, you’ll be able to make that call with more confidence that you’re acting legally.
Here’s the concept: “Material interference.” In other words, when an employee’s accent or lack of fluency “materially interferes” with their ability to do their job, you can transfer the person, send them for mandatory language training, or even – as a last resort – fire them.
It’s easy to see how poor fluency or a totally impenetrable accent (as opposed to one that is just strange) would materially interfere with a customer service rep’s performance.
But let’s consider a different situation.
Little need to communicate
What about a data entry clerk whose English is lousy, but who doesn’t have to talk much to either customers or co-workers?
This person’s lack of English proficiency doesn’t materially interfere with his job, and if you discipline or fire him for it you’re probably discriminating on the basis of language.
Again, use “material interference” as your touchstone. And if you’re not sure how it applies, get help — higher management, HR, legal counsel — before taking any action.
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