UPDATE: This column has been updated to note Byerley's failure to respond to a request for comment.

Melinda Byerley, the founder of TimeShare CMO, wrote an offensive tweet on Saturday, calling people in "middle america" [sic] stupid and saying that's why there are not as many jobs there. Please read it for yourself:

Clearly, this woman is a woman of diversity, of love for people of all backgrounds, except for other, you know, Americans. Oh, and, it turns out, people who are not native English speakers.

Journalist Don Surber did some quick investigative reporting on Byerley, by means of clicking on her company's webpage, and discovered this gem (emphasis mine):

After 14 years in Silicon Valley, most recently as a founder myself of a technology company, I know what you are going through: sleepless nights, anxiety about hiring and financing, the general feeling of not knowing what you don't know. Whether it's digging into your Google Analytics code to fix a problem, creating a dashboard that actually helps your business, or thinking big picture about how to expand your markets and creatively drive acquisition; I've done it all, hands on. I can pick up the phone and talk to insiders at every major social media and marketing platform to get instant advice for your business. I've hand picked and trained a team of experts, all located in the United States and native English speakers, to execute the work you need, fast.

Doesn't it sound fab to work only with native English speakers? No, not really. Many of my friends and business colleagues aren't native speakers. Federal law doesn't allow it either.

I will fully stipulate that there are many reasons why you want employees who speak clear and understandable English, with a level of vocabulary and understanding that is equal to a native speaker's, but requiring the person to be a native speaker is what we call "national origin discrimination."

The Equal Employment Opportunity Commission (EEOC) gives us a nice definition of national origin discrimination.

National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin.

Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.

This type of discrimination is illegal. Flat out. You cannot say you only hire native English speakers, because you're necessarily treating people of different origins in a disparate manner

Now, I think Ms. Byerley was a jerk for what she said in her tweet--and she agrees with me, as she backpedaled with this tweet:

Byerley did not immediately respond to a formal request for comment.

I do think that she's utterly unaware that she's violating federal law in her hiring practices. (I will also note that she just said she spoke "inartfully and disrespectfully," not that what she said was wrong.) It probably makes perfect sense to her that her client-facing team would speak really great English, and the easiest way to get that is to hire only native speakers. But that logic aside (faulty, by the way), it's still illegal.

You must, of course, require that all your employees be legal to work in the United States (if they will be working there, of course), but you cannot require them to be native speakers. And if you think you need only native speakers to have great communication skills, you're also wrong.

I live in Switzerland, where people have language skills that would knock your socks off. An American friend of mine worked with local teenagers and would often laugh at how their grammar was better than hers. Why? Not because my friend wasn't educated and intelligent, but because she never learned the in-depth grammar rules that are taught in language classes.

Many global businesses operate in English, and while the nonnative speakers may have an accent that reveals their mother tongue, you'd be hard-pressed to claim they weren't speaking clearly, knowledgeably, and with knockout vocabulary. (A few weeks ago, at church, Hans, a native German speaker, asked me, in English, to give the "invocation." I said, "Where did you learn that word? Why not ask me to give the opening prayer?" He was confused as to why I was confused that his vocabulary would include such a word. He has language skills.)

And what is an accent anyway? People from Ireland, England, Australia, South Carolina, Utah, New York, and Canada all have different accents, yet they are all (most likely!) native English speakers. If your target audience is people in the U.S., you'd be hard-pressed to argue that my friend Hans is more difficult to understand than a person from Ireland.

Ms. Byerley screwed up on social media. That happens. You shouldn't do it, but if you have a tendency toward bad tweets, have someone proofread your posts. But she also screwed up legally. Hopefully, when her office opens this morning, someone will scrub the website (I have screen shots) and change the company's official hiring policies to bring them in line with the diversity the federal government requires. However, if you're a nonnative English speaker who applied to TimeShare CMO and weren't hired, you may want to hire an employment attorney.

Published on: Jan 9, 2017