Court Finds References To “Communication Issues” Could Be Evidence Of National Origin Discrimination


by Abbey Moland

Moland_Abbey
amoland@mcgrathnorth.com
(402) 341-3070

Can complaints about an employee’s communication skills be considered evidence of national origin discrimination? It’s a jury decision, concluded a federal court in Illinois.

The plaintiff in Artunduaga v. University of Chicago Medical Center was born in Colombia, practiced medicine there for three years but then completed a post-doctoral research fellowship at Harvard Medical School. She then applied for and was accepted into a residency at the University of Chicago Medical Center.

During her rotations, she was described as very bright but there were accompanying comments about communication problems. There also were repeated references to her culture and her home country. She was removed from clinical duties and sued the Medical Center.

The court considered the plaintiff’s claims that her supervising physician subjected her to national origin discrimination on the basis of her accent, communication style and cultural background. The court noted that although accent and national origin are “inextricably combined,” if that accent substantially or materially interferes with job performance, it can be a legitimate job consideration. It found that good communication is an essential function of a surgical resident’s job, but ultimately concluded that a determination of whether the accent diminished the plaintiff’s job performance was a question of fact for a jury to decide. In denying the employer’s motion for summary judgment, the court noted that the plaintiff had completed a graduate fellowship at Harvard Medical School, had strong letters of recommendation from her previous supervisors, and ranked fifth out of the 29 candidates who were interviewed by the Medical Center.

The lesson for employers is clear: General references to “communication skills” or style will not be sufficient to support a foreign-born person’s rejection for employment or termination from employment. Rather, the employer will be required to specifically document instances and examples in which the language skills, or lack of such skills, interfered with the employee’s job performance or could be taken to interfere with their job performance. Generalized references will not suffice. In the end, employers should be mindful that whether an accent is sufficient to interfere with an employee’s ability to perform the essential functions of their job may be a jury question.

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