How Do You Say “Reasonable Accommodation”?

An interesting post from Jonathan Turley :

There is an interesting lawsuit against an academic institution in Colorado. Spanish-speaking custodial workers at the Auraria Higher Education Center in Colorado are suing over the failure of the Center to give them instructions in Spanish — alleging that they have faced unsafe conditions over the use of English rather than Spanish. The case suggests that the use of Spanish can not only be legally required but that the use of English can constitute a type of unsafe workplace.
While it certainly seems more effective to communicate with employees in a language they understand, does the failure to do so give rise to an actionable claim for an unsafe workplace?

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

Note that the case is brought by Spanish speaking workers, ignoring for the moment that they happen to be custodial workers. We can’t assume that all their workers who speak a language other than English are also Spanish speaking, so is the duty to communicate with every worker in their native language? Turley doesn’t think so.

I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin?
In some of the comments to his post, the reaction was “if they want to hire Spanish speaking custodians, then they have to give them instructions in Spanish.”  Implicit in this rationale is that they could refuse to hire Spanish speaking custodians because they are Spanish speaking. Is that really the best outcome?

Similarly, many argue that this is America and they ought to speak English. Then there is always the “foreigners stole our jerbs” view, because so many Americans are clamoring for those custodian positions so they’re not relegated to pushing lawn mowers.

It seems that there is no question but that hiring non-English speaking employees would compel an employer to make a reasonable effort to create effective means of communication for the benefit of everyone. It doesn’t do the employer or employee any good to have an inherent breakdown in communication, and it certainly isn’t in anyone’s interest to have anyone get hurt.

“Too many things have happened to me there that I don’t even know how to explain it,” said Auraria custodian Bertha Ribota.

Ribota said she was injured at work because she couldn’t read a warning sign that was in English.

“If I could speak English I wouldn’t have the problems that exist,” said Ribota.

The same, of course, could be said of people who come to the United States to work, that it would be in their interest to learn English.  Of course, that’s easier said than done, and even if they do, they have to eat until they’ve achieved a sufficient level of mastery that they can read the sign that says “don’t stick your head inside machine while blades are turning.”

While Title VII of the Civil Rights Act of 1964 requires employers to provide “reasonable accommodations” in the cases of religion and disability, it does not require an employer to communicate with every employee in his or her native language.  The question isn’t whether it’s a good idea to do so, but whether the law requires an employer to do so.

Like Turley, I don’t see how it could work or be enforceable. If an employer has a staff that speaks 5 languages other than English (or make that 20, or 50), would the employer be required to have supervisors who speak those languages as well, signs for every language, perhaps translators working full time?

The alternative is that the law would have to allow employers to discriminate based on language, which implicates national origin, so that he could have staff speaking only one or two foreign languages, and then it would be relatively manageable to have supervisors or translators to manage the Babel.

But these are inherently burdensome on an employer and pretty ineffective means of dealing with the problem. What if your one Mandarin speaking custodian quit and was replaced by a Ukrainian?  The problems are endless.

The obvious “solution” is for foreign language speaking employees to learn English (or for everyone to agree to speak Spanish) so that there is only one language in the workplace, but that’s a fantasy solution, impractical as well. And yet who can blame employees for not wanting to get hurt?

11 comments on “How Do You Say “Reasonable Accommodation”?

  1. James

    If the qualifications for the position required knowledge of the English language, for safety reasons, how did they get hired in the first place?

    Simple, the employer paid a wage which doesn’t attract qualified candidates. This leads to an unsafe work environment, which is an employers responsibility.

    Seems to be a fairly open and shut liability case. Tears in the rain for the hardships of capital mean little. Either pay a wage which attracts candidates qualified to follow safety procedures or pay-out when one inevitably sticks their head in a steam vent.

  2. SHG

    Basic compensation theory. But do the qualifications of custodian require knowledge of English? Does that preclude all non-English speaking Americans from holding a broad array of jobs? Are they not entitled to work as well? Almost every manual job carries a potential risk of danger if done wrong (as does driving a car to work, for that matter), so is English a requirement to safely navigate America? Should it be?

  3. James

    For this job it seems that lack of a common language creates an unsafe work environment. I see no reason why it should preclude those who don’t speak English, just the need for bilingual signage and instruction. It’s the employers responsibility to make sure it’s a safe environment. Hiring people who can’t follow procedure due to barriers in communication, or simply failing to make sure that they are qualified, is not and should not be a ‘get out of jail free’ card.

    Is it absurd that at some point they may need to contract out the UN for translators? Of course, but less absurd than thinking someone incapable of following instructions is qualified for a position.

    I’m not sure what kind of point you’re trying to make with driving, as signage is universal. A stop sign in Quebec looks exactly the same as one in Idaho or China. Big red octagon, really unambiguous. Your speedometer will look exactly the same if your car was made in Detroit or Osaka.

    I do understand your point and agree that this could and probably will lead to discrimination, but ‘shit is hard’ is no excuse for unlawful, bigoted hiring practices. Much the same as ‘bilingual signs cost money’ isn’t an excuse for an unsafe work environment.

    “If we don’t allow six year-olds to be chimney sweeps, how will they support their families?” Sometimes you’ve just got to accept that some folks are not qualified, even if they’re the only ones willing to work for scraps.

  4. David

    I lived and had a job in Japan. I could only barely speak some Japanese and could read almost none of it. While my employer did try to provide translations of important things, many signs were Japanese only (Fire exit for example).

    While this case is about custodians, how about a nuclear physicist that will work in a lab, must the employer translate everything for them?

    Seems impractical to me having lived in a place where I was effectively illiterate and having been in that position.

  5. SHG

    If there is a legal obligation to communicate in the workers’ language (as well as not discriminate in employment based on national origin), you can’t assume it’s as easy as bilingual. As for driving, there are other signs on the road besides the standard symbols. What’s the universal sign for “accident ahead, reduce speed”?

    If you think the question is absurd, perhaps it’s because you’re thinking too simplistically. You may find the answers easy, but the question is hardly absurd.

  6. SHG

    Japan doesn’t have our sensibilities, which results in our legal obligations, with regard to accommodating foreign language speakers. It’s a rather homogenous country, and not terribly concerned about accommodating non-Japanese.

  7. James

    Again with the driving…

    You can take the written and practical test in English, French, Spanish, Mandarin, Cantonese, Hindi, Punjabi, Vietnamese, Cambodian, Russian, Ukrainian… etc.

    New drivers are trained, if they want to be by a private enterprise, and tested in a language they comprehend by the MVB.

    The qualification process negates the need for English when driving. Much the same way instruction or signage in a language an employee can understand negates the need for them to speak English.

    Just because something costs more doesn’t mean it isn’t simple. Condemnation of immigrants to a permanently unsafe underclass of labour is more abhorrent than absurd, to be honest.

    For the case at hand, yes it need only be a bilingual sign or instruction, because the employer chose to hire someone who spoke and read Spanish, not English. At least not the point where he could do his job safely. If a company wants to hire someone who doesn’t comprehend important safety procedures because they cost a dollar an hour less, then they need to suck it up and pay for training that will keep said employee from getting killed or injured. Same if the employee spoke Tagalog or Thai, the onus is on the employer to make sure they’re qualified for the gig and have no right to put them in harm’s way to save a couple of bucks.

    To answer your question… diamond shaped in a bold colour, sometimes with rad flags. They look the same on a highway outside of Madrid or Baghdad. The shape an colour are universal for ‘caution, reduce speed’. It’s why they look exactly the same as ones used for road construction.

  8. SHG

    Not always.

    You take two very strong positions. First, “condemnation of immigrants to a permanently unsafe underclass of labour is more abhorrent than absurd, to be honest.” Condemnation? An employer “condemns” immigrants by giving them jobs and paychecks? Does the employee have any obligation to learn that language of the person paying him?

    Second, “it need only be a bilingual sign or instruction, because the employer chose to hire someone who spoke and read Spanish, not English.” While the employees suing today are Spanish-speaking, that doesn’t mean tomorrow it won’t be others, or people speaking ten different languages. Once a right is established, it applies to everyone. 

    But the more curious aspect is that “the employer chose to hire” a Spanish-speaking person. So the remedy is to refuse to hire Spanish-speaking employees?  Or better still, hired no one because of the cost was too high? Now who is condemning non-English speaking people to unemployment and poverty?

    I appreciate that you have a very firm view here, but its merit has to be based on your appreciation of the counter arguments rather than blind political belief. Once you can understand the other side, you are then capable of a reasoned choice between them. To call either view “absurd” is just utterly simplistic. Both have some strong arguments.

  9. James

    Let’s be totally honest… we’re never going to run out of immigrants who’ll work crap jobs, for crap pay. We’re never going to run out of companies who hire and exploit immigrants, placing them in an unsafe work environment with poor or incomplete training. That is specific to the case at hand, as well as a universal constant, like gravity. The sun will come up tomorrow and some poor Honduran will probably be crushed in a trash compactor because he had no idea how to operate it safely.

    An employee is not required to speak English if the employer does not make that a condition of employment. If a company only wants to hire English speakers then such is there prerogative. I take no issue with that, because it’s a non-issue. For custodial work, or any sort of unskilled manual labour, companies are not going to offer a wage that will allow them to place said condition on employment. It’s just not a boogey-man I’m afraid of. These companies want the work ethic of someone with big dreams, not those with a desire to hang around the trailer park, listening to Skynyrd whilst getting drilled on oxy and Pabst.

    The issue is proper training and either attracting qualified people or qualifying those a company does choose to hire. Barring deceit or negligence by the employee, the responsibility for a safe workplace falls entirely to the employer. We use immigration as fuel for the engine of economic growth in our society, we have a duty to ensure they are not exploited or put in harm. That includes proper safety training in a language they can comprehend, be it one language or twenty. Much like having to pay black folks, I’m sure it’s something ‘the job creators’ can adjust to. I’m sure they kvetched and moaned about how hard that would be too.

    These are the challenges of living in an evolving, multicultural society. Most folks in North America do not speak English as a primary language and that number will only rise. Labour laws do need to reflect not only the make-up of a society but it’s values as well. English simply isn’t a requirement for being a productive member of society, or a good employee in some cases, a safe work environment is. They work for cheap and they work hard. I just don’t see proper safety training and the cost it will incur for employers pricing immigrant labour out of the market.

    I think you’re being a little disingenuous with the led board picture. They’re often used in conjuction with other traffic control devices like pylons, flag control and additional signage. Plus, if they’ve had time to bring the led board out, the fact the car infront of you hasn’t moved in the past half-hour means you’ve long since slowed down. That being said, I’ll concede the point that ‘not all’ accident signs are diamond shaped.

    I don’t think I’ve ever been accussed of making ‘a strong point’ before. So thanks for that and a fun afternoon.

  10. C. N. Nevets

    As an adult ESL teacher, I see a lot on both sides of this. I see how hard it is for adults to learn English. I see how possible it is to know enough English to get around the basics of a job without being able to read instructions or safety information.

    On the other hand, I also see employers deliberating employing refugees and immigrants from a particular country or two. It’s not as if Burmese refugees are driving up to the Tyson chicken processing plant and asking if they happen to be hiring. Tyson sends recruiters to get them. At that point, it seems that you can take a little responsibility for communicating critical information in their language. (Which, incidentally, they do not do at Tyson. They rely on refugees who have been here longer and learned more English to translate on the fly for others.)

    All that said, I also see men with jobs taking the time to go to English class, but not putting any effort into learning and repeating the literacy level three years in a row. I also see some folks using, “Oh, I couldn’t read the sign because it was in English,” as an alibi for, “Oh, I wasn’t paying attention.” and I see employers with people from so many nationalities that their warning signs would have to be ten feet tall to accommodate all the languages.

    There’s nothing simple or absurd about this issue.

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