News
Firing someone for not speaking proper
First published in the Independent, 7 August 2008.
There's a school of thought these days that language is all about communication: as long as you get your message across to your recipient, rules of grammar (and in some cases, spelling) are unimportant. In this context, txt language is often cited as an example of a new – and acceptable – permutation of the English language.
The contrary view, of course, is that adherence to the rules of grammar (and proper spelling) illustrates intelligence and, frankly, professionalism. Getting something wrong in a letter to a client, for example, reflects poorly on the individual and the organisation.
But can an employer dismiss someone because of poor language skills – or perhaps not hire them in the first place? A recent decision of the District of Columbia Court of Appeal offers some interesting food for thought.
The court was asked to determine whether a requirement of English proficiency as a necessary criteria for employment could form the basis of a national origin discrimination claim under the District of Columbia Human Rights Act. In other words, was the requirement of good English language skills discriminating against workers for whom English was a second language?
The claim was brought by Juan Estenos, a Peruvian who immigrated to the United States, against his employer PAHO/WHO Federal Credit Union. At the time of his employment Estenos had only completed a basic class in English, and his grasp of the language was rudimentary. His interview (with his bilingual managers) was conducted entirely in Spanish.
Following a probationary period in which Estenos received a positive evaluation as being "highly regarded" and a salary increase, a new CEO to the credit union terminated Estenos because his lack of fluency in English made it "impossible for [him] to fulfil the requirements of the position." Informally, Estenos was told by his manager that he "did not understand" Estenos' limited English.
Following a determination by the Equal Employment Opportunity Commission that there was "reasonable cause to believe" that the credit union had discriminated on the basis of national origin", (as a result of other employees who only spoke English and not Spanish not having been similarly fired) the case was brought to the Trial Court.
That court denied the claim, finding that while the legislation did prohibit discrimination on the basis of foreign accent or ability to speak a foreign language it did not "protect those who lack the ability to speak English proficiently".
The court considered the potential for employers to use a person's communications skills as a façade for discriminating on the basis of national origin. In its view, because the English proficiency requirement had the potential to be evidence of discrimination on this basis, Estenos was allowed to bring his claim.
The court indicated that whether actual discrimination took place would be a harder hurdle to jump. This would depend on whether the employer intended to discriminate against Estenos, taking into account whether the English proficiency requirement was actually required to perform his duties, whether other persons of the same national origin had been hired, and whether English was required in the first place (considering that Estenos had not been given proper notice of this rule).
So what would be the situation if Estenos was an employee in New Zealand?
It is unlawful under the Human Rights legislation to refuse to hire (or to dismiss) someone by reason of their ethnic or national origin.
The legislation also outlaws "indirect discrimination" - being an action which appears to apply to all equally, but which in practice has the effect of excluding or imposing a disadvantage on a person or group of persons.
It is possible that requiring employees to be proficient in English could constitute "national origin" indirect discrimination in New Zealand. It could be found that requiring good English language skills, particularly if they are required to be at the level of a native English speaker, could disadvantage people who speak English as a second language - as a consequence of their national origin.
It could still be difficult, however, for an employee to prove that discrimination had occurred. If a job does not require a high level of communication and the employee speaks English at a level sufficient for him or her to perform the duties of their role, discrimination might be easy to identify. If, however an employee was in fact unable to do his or her job as a result of not being understood or not being able to follow instructions a dismissal or refusal to hire may be justifiable.
The New Zealand legislation also provides that where there is a "good reason" for the discriminatory conduct or practice there will be no breach of the Act. This requires a balance between the discriminatory effect of the legislation and the needs of the enterprise as well as looking at whether there is a viable alternative to a policy or decision. According to the case law "business need" will only be a good reason where there is a genuine need of the enterprise – that is, where the decision is suitable and necessary to fulfil a business purpose.
The issue is, therefore, intriguing – and possibly live – under New Zealand law.
