Ask The Lawyer

By Debra Roth

Avoiding national origin discrimination

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As a federal manager, you are on the front line in protecting your agency against equal employment opportunity complaints under Title VII of the Civil Rights Act.

To prevent discrimination in the workplace, you must understand what qualifies as an act of discrimination or harassment. The category causes the most confusion is discrimination based on national origin.

According to the Equal Employment Opportunity Commission, national origin discrimination occurs when equal employment opportunities are denied to an individual based on the country where he or she was born or from which his or her ancestors came. More specifically, EEOC prohibits discrimination based on the “physical, cultural or linguistic characteristics of a person’s national origin group.”

Two types of national origin discrimination tend to cause the most confusion: language and accent discrimination.

Supervisors have no right to expect that employees who speak a language other than English speak only English while on duty or break. Some supervisors think t English-only rules eliminate resentment that may result when they or their employees feel shut out of conversations they don’t understand. But the attempt to eliminate languages other than English will likely result only in one employee’s resentment and an EEO complaint.

This doesn’t mean that an English-only rule is never acceptable. But the rule must be justified by a clear business necessity. For example, it would be acceptable to expect an employee whose main responsibility is to interact directly with a predominantly English-speaking public to speak only English while on duty.

Accent discrimination isn’t as clear-cut. The short of it is that federal employees cannot be denied job positions or growth opportunities because of an accent. But EEOC has found that employees must be able to communicate effectively in order to do their jobs. This means that management actions such as reassignment or removal are permissible if it is established that an employee’s accent or lack of English comprehension prevents him from performing his job.

Managers must consider a few factors when evaluating the impact of an employee’s accent on job performance. The first is the frequency and complexity of oral communication required. If the employee’s main job function is to staff a call center, a heavy accent could be of concern. Second, evaluate the relative gravity of miscommunication. If the employee is responsible for providing oral instructions in the event of an emergency, serious safety issues could come into play.

When looking at these factors, you should not consider only your own difficulty understanding the individual, but the difficulty for co-workers and the public as a whole. If it’s determined that the problem lies in the individual’s overall ability to adequately communicate in English, an adverse personnel action may be justified.

Generally, to establish a discrimination complaint an employee must demonstrate that the agency’s actions resulted in worse treatment for him in comparison to the treatment of employees of other races, color or national origin. However, the employee does not have to prove that the discrimination was intentional. Any personnel decision that you’re unable to justify with explicit reasoning could be established as a pretext for discrimination. And evidence of derogatory remarks toward the complainant’s group or other discriminatory views, no matter if they were made jokingly, will likely discredit any justification you may have.

To protect your career and the agency’s reputation from the effects of a discrimination complaint, ensure personnel decisions are clearly documented and made for specific, identifiable reasons.

Never dismiss derogatory remarks, jokes or symbols as unimportant. Jokes that seem inoffensive to you may be offensive to someone else.

A visit to your human resources department, EEO specialist or private counsel before taking action against an employee can go a long way in avoiding an EEO complaint.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.