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Title VII protects individuals against employment discrimination on the basis of national origin in the same way that it protects against discrimination based on race, color, religion and sex. Denial of employment opportunity because of a person’s accent is unlawful discrimination on the basis of national origin unless the employer can show a legitimate nondiscriminatory reason. According to the Equal Employment Opportunity Commission (EEOC), distinctions based on accent are permissible only when accent “interferes materially with job performance.” The question for employers to ask, therefore, is whether an individual’s accent makes it substantially more difficult for him or her to perform the job duties.
Discrimination based on accent can be a “cover” for more overt discrimination based on national origin. It would be an easy refuge for an employer unlawfully discriminating based on national origin to state falsely that it was not the person’s national origin that caused the problem but her inability to measure up to the communications skills required by the job. Furthermore, an employer can be liable even if it genuinely believes that accent poses a problem for adequate performance of a job if the employer is mistaken and is requiring an unduly high ability to communicate.
Therefore, employers should ask themselves two questions:
If the answer to either question is no, and the employer has denied employment opportunities based on a person’s accent, then, according to the EEOC, the employer will be liable for national origin discrimination.
Example: Acme Spool Company is hiring for a bolt-tightener job, an unskilled entry-level assembly line position. The company rejects Yung-Mi Lee, a U.S. citizen born in Korea, because Ms. Lee’s foreign accent makes it difficult to communicate with her.
It is not a defense that Acme simply wanted to hire employees with whom its supervisors could “better” communicate. With even minimal ability to communicate effectively, Lee would be able to take direction from her supervisor and perform the job. If, however, Lee doesn’t understand English and can’t take direction in English, Acme might be justified in turning her down even for the bolt-tightener job. Whether Acme could avoid liability would depend on the specific facts of the case. For example, it is relevant whether Lee’s supervisor or other Acme officials or employees only spoke English or whether anyone else also spoke Korean and could translate for her when necessary.
Other employer decisions made on the basis of an individual’s ability to speak English well are analyzed in similar ways. For example, to justify a requirement that an individual be fluent in English, an employer would have to show that the level of fluency required was materially related to job performance. Also note that the ability to communicate in writing may be justified if the ability to write clearly in English is an essential part of the job.
Examples of jobs in which the ability to communicate in English has been found essential:
For example, the job of hotel desk clerk requires extensive contact with hotel guests.
For example, the job of foreman at a construction site requires extensive communication with construction workers and other project managers.
For example, hospital staff must deal with emergencies and often must be able to communicate quickly and effectively communicate what is wrong with a patient or what needs to be done by other members of the staff.
Source: “National Origin Discrimination; Employment Discrimination Prohibited by Title VII of the Civil Rights Act of 1964, as amended” by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999. (Revised).
Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
Issue: Digger Mining Company operates a mine on a 24-hour basis utilizing three shifts of workers. After he was offered a job, but before he began work, Peter informed Digger that his church forbade him from working on his Sabbath, sundown Friday until sundown Saturday. Digger agreed never to schedule Peter for work on Saturdays. Peter began his employment with Digger and was successfully accommodated for three years, at which time the mine was sold. New management insisted on scheduling Peter for work on Saturday, denied him the use of a personal day to observe a religious holiday, and suspended him for refusing to work his Saturday schedule. The new owners did, however, offer Peter a lower-graded position that did not require work on weekends. After rejecting the position, Peter left the company and filed an EEOC charge of religious discrimination. Did Digger violate Title VII?
Answer: Yes. Absent proof that continuing to accommodate Peter by not scheduling him on Saturdays would create an undue hardship, the EEOC would find that Digger’s discontinuing the practice and its attempt to demote Peter violated Title VII. Similarly, without proof of undue hardship, Digger’s refusal to let Peter use a personal day for religious observance is a denial of religious accommodation.
As an HR director, you know that employers are required by Title VII to provide reasonable accommodation for an individual’s religious needs unless the employer can show that providing the accommodation would create undue hardship on the conduct of business. Common accommodations include:
Title VII’s accommodation requirement imposes responsibilities and obligations on both the individuals needing accommodation and the employer from whom the accommodation is sought.
Employee must notify need of accommodation.
An employee needing an accommodation is obligated to make the employer aware of the need for religious accommodation. Similarly, an applicant needing an accommodation to fully participate in the application process is obligated to make the prospective employer aware of his or her need for religious accommodation.
Employer responsible for offering reasonable accommodation.
Once an accommodation has been requested, it is the employer’s responsibility to offer an accommodation that will reasonably accommodate the individual’s religious belief or practice, unless the employer can demonstrate undue hardship.
Employee must cooperate with accommodation efforts.
The individual needing accommodation is obligated to cooperate with the employer’s accommodation efforts. For example, an employee needing accommodation could not refuse to say whether a suggested accommodation would meet his or her need and then file a discrimination charge alleging that the employer’s accommodation was insufficient.
Accommodation does not have to be one preferred by employee.
The employer does not have to provide the accommodation preferred by the individual needing accommodation as long as the accommodation the employer does provide effectively eliminates any religious conflict. Although an individual does not have to accept an accommodation, he or she cannot insist on a different accommodation if the offered accommodation was sufficient to satisfy his or her religious need.
Source: “Religious Discrimination,” part of the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
Most good job candidates can spell, especially when their computer does it for them.
Others cannot. When you’re posting a job opening, and the online job board asks you for a list of keywords, you might want to add in a couple of misspellings. That way, you’ll get a few extra hits from some potentially worthy candidates who may have made a typo.
For example, if you want to attract people who might search and misspell your company name, try listing the keywords McDonald’s, McDonalds, MacDonald’s and MacDonalds, or whatever the case may be.
One corollary tip: If applicable, keep in mind that in some countries, English words like Organization may be spelled differently.
Source: Weddle’s (online recruiting newsletter), June 1, 1999.
Managing Generation Xers is like managing anyone else.
Well, sort of. Here are some tips to keep in mind. While the following are generalizations, they can be quite helpful when working with today’s 20 and 30-somethings.
Thanks to James Essey, CEO, Tempositions, New York for providing many of these points.
The Family and Medical Leave Act (FMLA) did not require an employer to restore an employee, who overstayed her 12 weeks of FMLA-protected leave by an additional three weeks, to her former position, ruled the 11th Circuit Court of Appeals in Atlanta. As the court explained, under the terms of the FMLA-and contrary to the Department of Labor’s (DOL) regulations-the employer could lawfully require the employee to substitute accrued paid leave for any portion of her FMLA leave benefit, with or without notice.
In this instance, the employee took 15 weeks off to give birth and to care for her newborn infant. Upon her return, the employer demoted her. Because the employer failed to notify her that employer-provided disability leave and unpaid FMLA leave would run concurrently-as she argued the applicable FMLA regulations required it to do-the employee claimed she was entitled to more than 12 weeks of leave. Instead, she alleged that since she had no notice, she was entitled to 13 weeks of the employer-provided disability leave plus an additional 12 weeks of FMLA leave, and was then entitled to be restored to her former position. Having actually taken less leave than that to which she was entitled, the employee asserted, her demotion violated the FMLA.
Ruling otherwise, the court declared the FMLA regulation upon which the employee had relied to be “invalid and unenforceable.”Requiring employers to notify their employees if paid leave and FMLA leave must be taken concurrently, when read in connection with another regulation that essentially prohibited employers from substituting paid disability for guaranteed FMLA childbirth leave, would effectively extend FMLA leave for the birth of a child beyond the statutory 12-week maximum whenever an employer failed to provide the required notice.
As the court observed, there was nothing in the text of the FMLA to suggest that DOL could, by regulation, inadvertently or otherwise, extend the statutory 12-week entitlement. That being the case, enforcing the pertinent regulations against the employer in this instance would require it to grant “entitlements” and impose “requirements” beyond those contemplated by the statute. Ruling in the employee’s favor, the court further concluded, would also run contrary to the FMLA’s stated purpose to “balance the demands of the workplace with the needs of families … in a manner that accommodates the legitimate interests of employers.”
Cite: McGregor v Autozone, Inc, 11thCir, July 14 1999, 138 LC 33,915.
Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
Would you rather spend the weekend working overtime than hire someone to pick up the extra load? If so, one reason is that you probably dread interviewing. Here are some tips for hiring effectively and making it enjoyable for both parties.
SOURCE: F-O-R-T-U-N-E Personnel Consultants. Contact Anne Tommasi at 978-463-6600 for more information.
