Diversity & Inclusion

He Doesn’t Talk Like Us

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 discrimination.

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 decision.

Charlie S. Plumb is an employment law attorney with McAfee & Taft in Tulsa, Oklahoma. He may be reached at charlie.plumb@mcafeetaft.com.