Question 1: Do you have to put up with a front-line customer service rep whose English is so fractured that customers go away scratching their heads in perplexity?

Question 2: Do you have to put up with a front-line customer service rep whose English is perfectly comprehensible, but whose accent is odd enough that customers frequently comment on it?

Those two cases – close but not identical – illustrate the difficulties that companies and managers face in complying with federal law against language discrimination. Because while the answer to #1 is “of course not” – you don’t have to employ somebody whose bad English costs you business – the answer to #2 is “yes” – an accent that’s merely odd is no excuse for getting rid of somebody.

But how exactly can you be sure whether you’re facing situation 1, when you can legally take action, and situation 2, when you can’t?

Here’s the key concept in the law: “Material interference.” In other words, when an employee’s lack of fluency or accent “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 what about a data entry clerk whose English is very poor, but who doesn’t have to talk to anybody – customers or co-workers – very often? This second person’s lack of language proficiency probably doesn’t materially interfere with his job, and if you discipline or fire the person you’ll probably be illegally discriminating on the basis of language.

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