Dismissed for her poor English, she claims national origin bias

by on February 13, 2012 · 34 Comments POSTED IN: HR Cafe
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Based on the facts presented in the scenario below, how do you think the court ruled on this employment-law case?

Customer service supervisor Bethanne Grimes hung up the phone and turned to one of her reps, Chun Xi-Yang. “That was one of our big clients, Xi-Yang,” she said. “They just spoke with you and they’re not happy at all.”

“Why?” the rep asked.

“They said they could hardly understand you,” Bethanne replied. “They don’t know whether you made the change in their order that they wanted, or not.”

“Of course I make change,” Xi-Yang said. “I already do it.”

“That’s good to know, but it doesn’t fix the underlying problem,” Bethanne said. “Which is that your English is just too hard to understand. I’ve been working with you for three months, and I still have trouble sometimes.”

Trying to improve
“I make strong effort to improve my English,” the rep protested. “I buy course on CD, everything.”

“That’s good, but not good enough,” Bethanne said. “At least half dozen customers have told me they either can’t understand you, or they have to listen very hard, and even then they’re not sure they got their message across. I’m sorry, but it’s just not working out. You can finish your shift, but this is your last day with us. I’ll get your pay ready for the end of the day.”

“You are firing me?” Xi-Yang asked incredulously.

“I’m letting you go, yes,” Bethanne said.

“Why you not give me other job?”

“There’s nothing else available,” Bethanne said. “My decision is final.”

“I know real problem,” Xi-Yang said. “Chinese people not wanted here.”

“Nonsense,” Bethanne said. “We have lots of foreign-born reps in this center. And a number who have accents. But they can be easily understood, which is a requirement of the job.”

Xi-Yang wasn’t persuaded by Bethanne’s explanation, and sued for national origin discrimination.

Did she win?

The decision

No. The judge said Xi-Yang had no case.

Xi-Yang argued that supervisor Bethanne fired her based on isolated complaints.

But the court pointed out that the complaints were far from isolated: Bethanne documented eight specific complaints from customers whose interactions with her company were impeded by Xi-Yang’s lack of English fluency. Bethanne also documented her own difficulties communicating with Xi-Yang.

Also, the court said, an ability to communicate in English was central and not peripheral to Xi-Yang’s duties. The fact that she could not carry these out had nothing to do with her Chinese national origin, but rather with her lack of English-language facility.

Cite: Beaver v. McHugh, No. 09-cv-2257, D. D.C., 1/9/12.

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34 Comments on This Post

  1. Jeanne
    February 13, 2012 - 1:13 pm

    My first question was did this position clearly list English speaking skills required ? And, was this employee given any warnings or coaching on this prior to the “incident day” when she was terminated? 

  2. Jeanne
    February 13, 2012 - 1:13 pm

    My first question was did this position clearly list English speaking skills required ? And, was this employee given any warnings or coaching on this prior to the “incident day” when she was terminated? 

  3. Jstanley
    February 13, 2012 - 1:14 pm

    This doesn’t sound like bias to me.  Rather, it sounds like Xi-Yang failed to meet a basic qualification of the job.  

  4. Jstanley
    February 13, 2012 - 1:14 pm

    This doesn’t sound like bias to me.  Rather, it sounds like Xi-Yang failed to meet a basic qualification of the job.  

  5. HRDr.
    February 13, 2012 - 1:19 pm

    If the company can show they actually had other reps with English as a second language (especially of the same ethnicity – Chinese) I think the court dismisses.

  6. HRDr.
    February 13, 2012 - 1:19 pm

    If the company can show they actually had other reps with English as a second language (especially of the same ethnicity – Chinese) I think the court dismisses.

  7. Prolle
    February 13, 2012 - 1:20 pm

    Since clear communication was a requirement of the job and the employee had several complaints that customers were unable to undersatand the employee, I believe the employer was justified in the termination of employement.

  8. Prolle
    February 13, 2012 - 1:20 pm

    Since clear communication was a requirement of the job and the employee had several complaints that customers were unable to undersatand the employee, I believe the employer was justified in the termination of employement.

  9. Trina
    February 13, 2012 - 1:30 pm

    Agree w/ Jeanne, if the English-speaking skill and “ability to communicate clearly” is required, then termination is justified.  Also, it does appear that the supervisor was “working with [Xi-Yang] for 3 months” prior to termination.

  10. Lisab
    February 13, 2012 - 1:30 pm

    Did she know this would happen if she didn’t improve her language skills – no one likes to be surprised and the possibility of improving your job could have been a motivator to work on improving her skills even more

  11. Trina
    February 13, 2012 - 1:30 pm

    Agree w/ Jeanne, if the English-speaking skill and “ability to communicate clearly” is required, then termination is justified.  Also, it does appear that the supervisor was “working with [Xi-Yang] for 3 months” prior to termination.

  12. Lisab
    February 13, 2012 - 1:30 pm

    Did she know this would happen if she didn’t improve her language skills – no one likes to be surprised and the possibility of improving your job could have been a motivator to work on improving her skills even more

  13. Ngoodman
    February 13, 2012 - 1:34 pm

    As long as this was part of the job description there is no bias. But why did they hire her in the first place?

  14. Ngoodman
    February 13, 2012 - 1:34 pm

    As long as this was part of the job description there is no bias. But why did they hire her in the first place?

  15. Dlowell3
    February 13, 2012 - 1:36 pm

    If being easily understood was a requirement of the job, why did they hire her for that rep position? Were there any other Chinese individuals working there as reps? Did she only have 3 months with the company and was there any previous documentation or customer complaints in writing stating that it was challenging to understand Xi-Yang? I guess I have more questions before I can make a determination on the case.

  16. Dlowell3
    February 13, 2012 - 1:36 pm

    If being easily understood was a requirement of the job, why did they hire her for that rep position? Were there any other Chinese individuals working there as reps? Did she only have 3 months with the company and was there any previous documentation or customer complaints in writing stating that it was challenging to understand Xi-Yang? I guess I have more questions before I can make a determination on the case.

  17. Lyn S.
    February 13, 2012 - 1:46 pm

    I would hope that the judge sided with the employer.  Comminicating with the customer is an essential function of a Customer Service Rep position. Even though Xi Yang was trying to improve her English with the help of her supervisor, it doesn’t appear that much progress had been made.  Having other foreign nationals on staff should have been beneficial to the employer also 

  18. Lyn S.
    February 13, 2012 - 1:46 pm

    I would hope that the judge sided with the employer.  Comminicating with the customer is an essential function of a Customer Service Rep position. Even though Xi Yang was trying to improve her English with the help of her supervisor, it doesn’t appear that much progress had been made.  Having other foreign nationals on staff should have been beneficial to the employer also 

  19. Thomas Schnell
    February 13, 2012 - 2:00 pm

    Hopefully there had been prior documentation of discussions and customer complaints.  If so and requirements addressed in job description, the claim sould be denied.

  20. Thomas Schnell
    February 13, 2012 - 2:00 pm

    Hopefully there had been prior documentation of discussions and customer complaints.  If so and requirements addressed in job description, the claim sould be denied.

  21. Barbarat
    February 13, 2012 - 2:10 pm

    If her job description clearly states must be proficient in English, she is justified in letting her go, if it is not in her job description then she is not justified.

  22. Barbarat
    February 13, 2012 - 2:10 pm

    If her job description clearly states must be proficient in English, she is justified in letting her go, if it is not in her job description then she is not justified.

  23. Nanell51
    February 13, 2012 - 2:16 pm

    No one can learn a language in 3 months.  I suspect that her accent wasn’t considered a hinderance when she was hired but with some complaints became  one.  I get very frustrated when I get a person on the other end of the phone that I can not understand. But I ask them to slow down a bit and be patient with me.  English is MY language.  And I’d rather speak to someone without a pronounced accent but what can you do?  Everyone deserves a chance and I thing in this case longer than 3 months. 

  24. Nanell51
    February 13, 2012 - 2:16 pm

    No one can learn a language in 3 months.  I suspect that her accent wasn’t considered a hinderance when she was hired but with some complaints became  one.  I get very frustrated when I get a person on the other end of the phone that I can not understand. But I ask them to slow down a bit and be patient with me.  English is MY language.  And I’d rather speak to someone without a pronounced accent but what can you do?  Everyone deserves a chance and I thing in this case longer than 3 months. 

  25. Jean
    February 13, 2012 - 2:26 pm

    I agree with the others.  Are there any warnings in Xi-Yang’s file?  How long has she been employed?  What’s in her job description?  When did the three months coaching start in relationship to her hire date?  And, most importantly, if she doesn’t speak clearly, WHY was she hired?

  26. Jean
    February 13, 2012 - 2:26 pm

    I agree with the others.  Are there any warnings in Xi-Yang’s file?  How long has she been employed?  What’s in her job description?  When did the three months coaching start in relationship to her hire date?  And, most importantly, if she doesn’t speak clearly, WHY was she hired?

  27. Joanv
    February 13, 2012 - 2:49 pm

    If in her job decription said that she needed to speak perfect english then she had the right to fire her.  There should have been something in writing and in her file that said this – so everyone is treated the same way.  It needed to be a policy that was written for everyone.

  28. Joanv
    February 13, 2012 - 2:49 pm

    If in her job decription said that she needed to speak perfect english then she had the right to fire her.  There should have been something in writing and in her file that said this – so everyone is treated the same way.  It needed to be a policy that was written for everyone.

  29. JM
    February 13, 2012 - 6:41 pm

    I think the courts should rule in favour of the employee.  The supervisor seems to have no trouble understanding her during the verbal exchange; she is making an effort to learn the language; and the employer could certainly try to provide her with a bit more help to gain the skills she lacks.  The supervisor isn’t very specific with the issues and it is obvious she didn’t bring them forward before.  The only issue is Xi-Yang’s length of employment.  If it is under three months, then Employment Standards allows for termination without cause.  I hope the courts rule in favour of  X-Yang.

  30. JM
    February 13, 2012 - 6:41 pm

    I think the courts should rule in favour of the employee.  The supervisor seems to have no trouble understanding her during the verbal exchange; she is making an effort to learn the language; and the employer could certainly try to provide her with a bit more help to gain the skills she lacks.  The supervisor isn’t very specific with the issues and it is obvious she didn’t bring them forward before.  The only issue is Xi-Yang’s length of employment.  If it is under three months, then Employment Standards allows for termination without cause.  I hope the courts rule in favour of  X-Yang.

  31. Judy
    February 14, 2012 - 1:18 pm

    If speaking English “proficently” or “perfectly” was a clearly stated requirement of the position than I ask why she was hired in the first place.  That being said, with the short scenerio given I think that the employee should have been told right from the first incident that her commuincation skills were lacking (this is not stated as having happened) and what she and the Employer could/would/should do to correct the problem.  It is difficult to master a language in a short amount of time.  I know that I could not do it.  I feel for the employee and am not sure that she wasn’t “cheated” in some way by being fired.

  32. Judy
    February 14, 2012 - 1:18 pm

    If speaking English “proficently” or “perfectly” was a clearly stated requirement of the position than I ask why she was hired in the first place.  That being said, with the short scenerio given I think that the employee should have been told right from the first incident that her commuincation skills were lacking (this is not stated as having happened) and what she and the Employer could/would/should do to correct the problem.  It is difficult to master a language in a short amount of time.  I know that I could not do it.  I feel for the employee and am not sure that she wasn’t “cheated” in some way by being fired.

  33. Null
    February 14, 2012 - 7:51 pm

    In my opinion, these vignettes may tend to lead to a false sense of security.  It could easily have gone the other way – say if the customer’s comments were reflecting bias of the employee’s accent.  The employer was lucky in this case I think.

  34. Null
    February 14, 2012 - 7:51 pm

    In my opinion, these vignettes may tend to lead to a false sense of security.  It could easily have gone the other way – say if the customer’s comments were reflecting bias of the employee’s accent.  The employer was lucky in this case I think.

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