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Lost in Translation

 

A Colorado vegetable wholesaler now heads to trial after a district court found the company failed to adequately explain its anti-sexual harassment policy to Spanish-speaking employees. The ruling, experts say, sends a message that employers should not only have thorough reporting processes, but must communicate anti-harassment policies in whatever languages their workforces require.

 

Thursday, November 1, 2012
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For employers, having a clear and comprehensive anti-sexual harassment policy is necessary. As a recent Colorado district court ruling illustrates, a company's failure to make such policies readily available in more than one language can have legal repercussions.

In a lawsuit filed by nine Hispanic employees of the Monte Vista, Colo.-based Spud Seller Inc., the workers alleged they were repeatedly subjected to sexual harassment by their supervisor, Mauricio Gaytan.

The vegetable wholesaler's employee handbook includes a policy against sexual harassment, which directs employees to report incidents to their supervisors, office manager or "whichever person you feel most comfortable with." The policy also assures employees that their claims will receive immediate attention and the offender will be disciplined if facts support the complaint.

In dismissing the company's effort to have the case thrown out, however, a Colorado district court took issue with the fact that the handbook was printed only in English, with no Spanish translation. Rather, the policy was "explained" in Spanish to Spud Seller employees who don't speak English. District Court Judge Marcia S. Krieger found "no evidence that [the handbook's] provisions were translated into Spanish or that written translations were supplied to Spanish-speaking employees. There is evidence that the policy was 'explained' in Spanish, but it is not clear what was actually explained." The case now heads to trial.

"Assuming that a Spanish-speaking employee had a complaint," Krieger wrote, "she could not bring it directly to the persons identified in the policy because they did not speak Spanish. Instead, she would have to supply her own interpreter or rely on another Spud Seller employee, which necessarily deprived her of confidentiality."

Adding another wrinkle to the proceedings is the fact that the company's only bilingual employee -- and thus the person who would be in charge of explaining the policy -- was Mauricio Gaytan.

It's important to note that the district court's opinion denied the company's motion for summary judgment, says Eric Stevens, a Nashville, Tenn.-based attorney with labor and employment law firm Littler Mendelson.

"The motion addressed a number of legal issues beyond whether an employer's policy can be sufficient to avoid liability if it is not translated into a language the employee can read," says Stevens. "Summary judgment requires there to be no genuine issue of a material fact that would preclude a ruling as a matter of law. In this case, the court was applying that standard and was not necessarily ruling the employer would be ultimately liable if the case goes to a jury."

Still, the case holds some important lessons for employers, he says.

"As the workplace becomes more linguistically diverse, employers must be proactive, creative and comprehensive in their approach to employment policies in general, and their harassment policy in particular."

While the company did "explain" its policy, had a video in the employee's language and required employees to sign an acknowledgement of having been advised of the policy, the court "found those efforts insufficient without an accompanying translation of the policy. The court was not satisfied these efforts completely captured the policy," says Stevens, adding that employers must ensure their policies can be accessed in the employee's language, and that employees can report their complaint in a language they understand.

"This case does not necessarily require that all employers' policies be translated into any one language. The underlying issue is whether the policy is effective," he says. "For example, is it effectively and completely communicated in a manner in which the employee can understand and can access when necessary? Can the employee effectively communicate a complaint without fear of retaliation and with as much confidentiality as possible? Employers should address both of these questions in the context of whatever language(s) their workforce may require."

Under the requirements of the Faragher-Ellerth standard -- an affirmative defense employers may use to defend against claims of hostile work environment -- companies and HR must ensure that employees are able to report complaints of harassment to someone other than the person allegedly engaging in the harassment, continues Stevens.

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"Employers should not rely on a co-worker to act as translator since, as the court noted, such an arrangement would result in the employee not being able to make a confidential report."

Going forward, employers and HR professionals should be aware that courts "might look at the reporting requirements set up by Faragher-Ellerth contextually," says Richard Moberly, professor of law at the University of Nebraska College of Law in Lincoln, Neb.

"It may not be enough to simply have a reporting process," he says. "Courts may require that companies make the process accessible to every employee, or at least the average employee. Companies should take a look at their employee population and make sure that employees have a realistic opportunity to voice complaints."

But the main issue in this case wasn't so much the lack of a Spanish-language policy, says Maria Danaher, a Pittsburgh-based attorney with national labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

"In this case, the court pointed out that there was no anti-retaliation language in the organization's policy," she says. "There was nothing to let these women understand they wouldn't be retaliated against if they came forward with these claims.

"When the supervisor explained and interpreted the policy," she continues, "there was nothing [in terms of anti-retaliation language] to explain. So, the inference I think the court relied on is that employees didn't want to report their claims because they feared their supervisor would retaliate."

Proper dissemination of the policy is important, "but, first of all, the policy has to have all the elements. In this case, the company can argue at trial that they did what they needed to do in terms of dissemination," she continues.

"They put the policy out there, and made sure individuals knew it was out there and what it contained. They probably could've gone further and had a written policy in Spanish. That may have been the step that [would have] saved them in this case, to some extent. But they still would've likely been tripped up by not having a complete policy."

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