August 28, 2020 • By Dennis Beaver
“Jesus” phoned, wanting to speak with me. Anne, my paralegal, buzzed me, saying, “There is a guy on the phone who wants to talk with you but I can’t understand him.”
It required every ounce of patience to make out what he was saying.
(1) He worked for a company for a total of three months in customer service, dealing with Spanish speaking customers where he performed satisfactorily.
(2) They moved him to the general customer service desk where he was required to speak with Spanish and non-Spanish speakers. There he failed badly. “Customers complained about my English but I speak excellent English. They let me go saying that I was not a good fit,” but never gave me written warnings of what I was doing wrong.
(He admitted to yelling at some customers who said they could not understand what he was saying.)
It was clear that he was unaware or in denial of just how poor his English was. He had been in the country over 25 years and it was virtually impossible to understand a thing he was saying without constantly asking him to repeat himself, slowly. Each time I did, Jesus became more and angrier — with me! It was not difficult to see why he was let go after just three months on the job.
Sues the Employer
He filed a complaint with the Equal Employment Opportunity Commission (EEOC) who refused to take his case but gave him a Right to Sue letter. He found an attorney who filed suit against the employer and four years later it was settled for $52,000.
But Jesus wanted $100,000 and was shopping for a lawyer who would help him. I explained the odds of succeeding–after settling his case–were slim to none and he slammed down the phone.
All of this raises a question: Is an employer required to hire or retain an employee whose spoken language skills are objectively horrible? And, if an employer has someone like that working and wants them out, what is the best way of handling the situation to avoid being sued?
I ran these questions by two attorneys who practice Employment Law, Jay Rosenlieb from Bakersfield, California and Houston, Texas-based David Schein.
Schein: The EEOC has a language ability policy which requires a showing that certain language skills are relevant to the job. So if the employee is a laborer, as long as he understands directions, you are stuck with him. But a customer service rep’s ability to speak understandably is clearly important. You are not required to hire someone for a position that requires good language skills who objectively lacks them.
In general, an employer is best advised not to give any reason why a person isn’t being hired or fired, especially where language ability is the issue. It is easy to scream Discrimination!
Rosenlieb: Jesus merits a bit of sympathy as it seems that he should only have been required to work with Spanish speakers. His employer had to be aware that the guy’s competence in English was not adequate to deal with English speakers. Yet, if there were complaints about his attitude from customers, that is relevant to termination.
Had I been contacted by the employer, my recommendation would have been to see if there was some other job he could do where he would not be in contact with customers.
Not Getting Yourself Sued Begins With Hiring Smart
Rosenlieb: The key to not getting sued is in hiring smart. If you have a policy that says you are going to check references, then check references and do background checks! If you are legally able to conduct a credit check, do a credit check! If you have a policy that says you are going to ask applicants to complete a learning style, verbal skills, or verbal reasoning test, then have the applicant complete the test!
Schein: In the HR field we often hear, ‘No good deed goes un-punished. We met the enemy and he is the boss.’ Here the boss was trying to be nice without coming out and backing up that statement of not being a good fit with their experience with Jesus.
Traditionally, you never say why you are letting someone go, but here that would have been a good idea, such as, ‘People can’t understand what you are saying and your attitude with customers is bad. We do not tolerate anyone who yells at our customers.’
Concluding our discussion about a strategy of keeping yourself out of a lawsuit, both lawyers stated, “Issue written warnings, build your case and document it. Had the employer done so, when presented to Jesus’s attorney, there is a good chance that the lawsuit would never have been filed.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.