[lg policy] US: He Doesn ’t Talk Like Us

Harold Schiffman hfsclpp at GMAIL.COM
Mon Jun 15 14:50:23 UTC 2009

He Doesn't Talk Like Us
June 14, 2009 at 8:37 pm by: Celeste Blackburn

By Charlie S. Plumb

As the diversity of our workforce expands, it isn't unusual for
companies to have employees with different cultural backgrounds. In
some cases, that may mean your employees speak different languages or
sometimes have difficulty communicating. Remember, however, that
expressing your concern about an employee's language capabilities can
sometimes lead to an accusation of national origin or race

Employee Encouraged to Take English Class

The Defense Contract Audit Agency (DCAA) provides accounting and
financial services to the U.S. Department of Defense. The DCAA
maintains a branch office in Richardson, Texas, and a suboffice in
Oklahoma City. In May 2000, Sunday Zokari was hired as an
auditor-trainee in the Oklahoma City office with a one- year
probationary period. He was born in Nigeria, but has become a
naturalized citizen of the United States.

During his probationary period, Zokari's work was overseen by John
Michael Green and Paul Peters, the branch managers of the Richardson
office. The DCAA had a policy encouraging employees for whom English
is a second language to participate in an English class. When Green
and Peters met with Zokari, they expressed concern about his accent
and suggested he take an English class. He declined, stating that
anyone who had difficulty understanding his accent lacked exposure to
people with accents and that "they would get used to it." In September
2000, Green and Peters followed up with Zokari about his language
skills, but he again told them he wasn't interested in taking the
English class.

According to Zokari, after those conversations, his supervisors began
acting very differently toward him. He accused Green and Peters of
being hostile, giving him vague instructions, and refusing to clarify
their directions. On one occasion, Peters counseled him for
socializing with a contractor after they spoke about their common
homeland, Nigeria. Zokari also claimed he didn't receive adequate
guidance from his supervisors, was unfairly written up for job
performance problems, and wasn't given an opportunity to correct his
errors. His request to be sent to a training seminar was initially
denied and later grudgingly granted.

In February 2001, while Zokari was still in his probationary period,
Green and Peters terminated him for making errors, failing to follow
instructions, making excessive personal calls, and using a government
computer during normal work hours. Zokari filed a Title VII lawsuit in
Oklahoma City's federal court, claiming he was discriminated against
based on his race and national origin and retaliated against for
refusing to take the English class suggested by his supervisors.

Retaliation -- It's All About Cause

To sue his employer for retaliation, an employee must show the
employer took action against him because he opposed its request or
conduct in the belief that it was discriminatory. The employee must
also show that the supervisors who made the decision to terminate him
knew he was opposing some action he believed was discriminatory.

In this case, Green and Peters certainly knew Zokari opposed their
suggestion that he take an English class. However, he never informed
his supervisors that his refusal to follow their suggestion was based
on his belief that their request was discriminatory. Instead, he told
them he was rejecting the English class because other people's
difficulty in understanding him would disappear over time. Zokari v.
Gates, Case No. 07-6173 (10th Cir., 3/17/09).

Watch for Retaliation

Retaliation claims can be some of the most explosive employment
lawsuits you will ever face. Whenever an employee expresses a concern
or an objection about a workplace practice, it's always advisable to
get the issues on the table. Explain your legitimate business reasons
for a particular request or practice, and explore whether the employee
has a valid reason for opposing your instructions or practice. Taking
the time to do that might help you uncover a potential retaliation
issue and will put you in the best position to defend a subsequent
lawsuit by establishing the nonretaliatory basis of your business


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