| Home Back
to:
Articles |
TECHWORKPLACE
by Jeffrey L. Berger, Esq.
Jeffrey L. Berger
specializes in management-side employment and business law, and related litigation in
Washington, D.C., and nationally. Questions and comments on the TECHWORKPLACE are
encouraged. Other articles are available at www.bergerlaborlaw.com.
FAILURE TO COMMUNICATE:
WHEN DIVERSITY AND DISCRIMINATION COLLIDE
|
 |
As the world shrinks through
communications and travel, foreign-born workers are flooding into the U.S. to fill skilled
positions. High-tech companies caught in a labor shortage are welcoming these employees
with open arms. Initially, it seems not to matter if a software engineer from Moscow,
Shanghai, or New Delhi speaks English with a heavy accent when programing a computer.
Issues may arise, however, when these workers seek the American dream of upward mobility,
by moving into management or positions involving interactions with clients or the public.
Unfortunately, stereotyping and cultural bias often create a glass ceiling that works
against the interest of these employees and their employers, and may also result in
violations of equal employment laws. Federal, state, and local statutes prohibit
discrimination based upon national origin. Claims are most often associated with accent
and language, but many cases arise from differing cultural mores. As the high-tech
workforce becomes increasingly diverse, these issues are gaining importance in a legal
context as well as in employers’ efforts to attract and retain qualified employees.
Denying an employment opportunity because of a foreign-born worker’s accent or lack
of "communication skills" may be unlawful discrimination if the employer cannot
show a legitimate non-discriminatory reason. Specifically, the EEOC and the courts look
closely at whether the personnel action is necessary because of the duties of the job, or
is just a cover for national origin discrimination. The issue becomes one of whether an
employee’s accent or different use of language prevents effective communication
necessary to performance of significant job functions. These matters become even more
complex when an employer attempts to bring customer preference into the mix, since the
courts have repeatedly rejected this defense in race and sex discrimination cases.
The ability to communicate plays a role in any position
where an employee must interact significantly with colleagues or customers. However, since
workplace communication is increasingly accomplished through e-mail, even a heavy accent
may have little impact on an employee’s ability to get the job done. It is often a
lack of English grammar and usage skills, rather than an accent, that interferes with a
willing listener’s ability to understand. In many instances these basic communication
skills are legitimate criteria on which an employer may base personnel decisions.
A related issue involving foreign-born workers who are
new to the U.S. is their awareness of and comfort with American cultural norms. In many
countries, the roles between the sexes remain grossly unequal and prohibitions against
behaviors such as sexual harassment do not exist. Furthermore, many foreign-born employees
come out of social and economic systems were caste and class predominate. When they bring
these disparate social mores into the American workplace, the resulting clash of cultures
can have adverse legal and business consequences.
The high-tech melting pot is boiling at a rapid rate.
University-trained foreign nationals are being thrown quickly into high paying technical
jobs without the long periods of cultural maturation experienced by many immigrants that
came before them. While some companies attempt to deal with these issues through diversity
training, most are focused on the immediate demands of competition. For high-tech
employers to attract and draw out the best from the vastly talented international
workforce, they are well-advised to step back occasionally from the fast pace of
production to consider what it might be like to work as a stranger in a strange land.
© 1999 Jeffrey Berger
REPRINTED FROM:
TECHGAZETTE - November 1999, Vol. 2, No. 11
The Berger Law Firm, P.C. 1825 Eye St. N.W., Suite 400, Washington, D.C.
20006.
Phone: (202) 861-1361 Fax: (202) 861-1362
Legal advice is case specific and is not intended to be provided by this article.
The Berger Law Firm, P.C. may not be held responsible for any consequences
that may arise in connection with the use of or reliance on the information provided.
|