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Document why you require bilingual skills

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in Discrimination and Harassment,Firing,Human Resources

Many organizations serve customers who speak a language other than English, and require em­ployees to have specific bilingual skills. If that describes your organization, make sure you can defend the language requirement if you’re sued.

As one employer recently learned, that may mean having to disclose otherwise confidential information in court, including client data.

Recent case: Donna, who is white, was fired from her job with Neighborhood Housing Services of Silicon Valley, ostensibly for poor performance and lack of Spanish-language skills. She worked for the nonprofit as an underwriter and loan program manager—until a new, Hispanic executive director came on board.

Donna sued, alleging that the underlying reason for her termination was really a clear preference for Hispanic workers. She alleged that the language requirement was bogus.

As part of the lawsuit, Donna’s lawyers demanded access to the em­­ployer’s loan documents showing the ethnicity of its borrowers. They argued that they could use the ethnicity data to prove Spanish language skills was not a legitimate job requirement.

Neighborhood Housing Ser­vices argued that the ethnicity of its clients wasn’t a strict proxy for the language clients speak.

The judge disagreed, concluding that if the records showed few borrowers actually were His­panic, that might show that Donna really didn’t need to know much Spanish to do her job. Rather than turning over confidential loan documents, the employer dropped the defense that Spanish skills were a bona fide occupational requirement for underwriting and managing the loan program. It was the only way it could avoid revealing the confidential information. (Allen v. Neighborhood Housing Services Silicon Valley, No. 12-1656, ND CA, 2012)

Final note: If your job an­­nouncement lists language skills as a requirement, your HR files should document why the requirement is necessary.

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