Linguistic Challenges in the Workplace

Posted on February 28, 2012 by John F. Potanovic

Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation - such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

An "accent discrimination" claim can arise if an employer takes the adage "the customer is always right" a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
 
What Does This Mean For Employers?
 
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here.  The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action.  Always better safe than sorry!
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A Potential Valentine's Day Equation: flowers + chocolates = sexual harassment

Posted on February 13, 2012 by John Agnew

As a guy, I prefer barbecue-type holidays, such as Memorial Day or the Fourth of July, over Valentine's Day. As employers, you probably should, too, even if it is for different reasons.

A CareerBuilder survey published in 2011 found approximately 40% of workers have dated at least one person with whom they have worked, and 18% reported dating at least two people with whom they have worked. Clearly, workplace romance is pervasive. With it can come a host of unwanted side-effects, including loss of productivity, ethical dilemmas, depressed morale, and sexual harassment claims.

Sexual harassment claims can arise in a variety of situations, including when a workplace romance goes south.  They can also arise from what one employee might find to be a light-hearted joke, card or funny e-mail, sent to an employee who does not see the humor and might be completely offended.  A sexual harassment claim can even arise when a thoughtful boss gives a Valentine's Day gift to an employee for a job well done, and the message is misinterpreted. 

Since Valentine’s Day is upon us, take this opportunity to carefully review your policies addressing sexual harassment and workplace romances. As you do, consider the following:

1. Sexual harassment policy.  Review your company's sexual harassment policy to ensure it is clear, comprehensive, and consistently enforced. Check to make sure you have an acknowledgment signed by each employee.

2. Sexual harassment training.  Provide training to all your supervisors, and consider providing it to all employees. If done right, this type of training can go a long way when the EEOC comes knocking.

3. Conflict of interest policy.  Consider creating a policy prohibiting romantic relationships between supervisors and subordinates. To the extent such conflicts already exist, consider transferring one of the employees to another department.

4. So-called love contracts.  Consider requiring mandatory disclosure of all workplace romances, and have each couple sign a document acknowledging the relationship. The "love contract" should confirm that the relationship is consensual and will not interfere with job performance, and confirm that the employees understand the sexual harassment policy and their obligation to notify the employer of any violation of the policy.

5. Action on complaints. Conduct a thorough investigation of the issue and take appropriate action immediately upon receipt of a complaint or recognition of a potential issue. Make sure you do not brush complaints off, even if they come from a worker involved in a workplace romance.

These steps will help ensure that as those flowers and chocolates are delivered to your workplace tomorrow, you will be in the best position possible to prevent the Valentine's Day "gift" no employer wants—a sexual harassment complaint.

 

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HR Law & Solutions 20th Anniversary: Registration Now Open!

Posted on February 1, 2012 by Suzanne M. Boy

I am excited to announce we have just opened registration for the 20th Anniversary of our HR Law & Solutions Seminar!  The seminar is March 27 at Sanibel Harbour Resort & Spa.  Topics and speakers include:

  • Employment Law and Legislative Update presented by Attorneys Robert Shearman and John Agnew
  • First Report of Injury: Best Practices to Save Your Bottom Line presented by Attorneys Cora Molloy and David Roos
  • DHS/DOL Immigration Audits: Is Your Company Ready? presented by Board Certified Immigration Lawyer Tulio Suarez 
  • Dealing with the Retaliation Claim Boom presented by Board Certified Employment Lawyer John Potanovic
  • Employment Law IQ: Test Your Knowledge and Issue Spotting Abilities presented by Board Certified Civil Trial Lawyer Vicki Sproat and Attorney Suzanne Boy
  • It's Not the Fruit, It's the Root presented by guest speaker Sean Carter, Humorist at Law.

Also, as I teased in my Save the Date post, we have some fun surprises up our sleeves, including a surprise guest and a special 20th Anniversary celebration!  Download the seminar brochure here.  Click here to register.  Can't wait to see you all!

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