In the era of #MeToo, employers must carefully craft and enforce policies prohibiting sexual harassment and discrimination in the workplace. It’s not only the right thing to do, but it’s also a primary mechanism for defending sexual harassment lawsuits.
Defending Sexual Harassment Claims
One way to defend a sexual harassment lawsuit is what’s known as the “Faragher/Ellerth defense.” Using this defense, an employer can avoid liability if it proves two things:
- It exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
- The alleged victim unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.[1]
Most commonly, an employer meets the first requirement by showing it has adopted and distributed an anti-harassment policy. Just having a policy, however, is not enough if that policy is “defective or dysfunctional.”
Untranslated = Defective or Dysfunctional
In Tinoco v. Thesis Painting,[2] the court found that an employer’s policy written in English was “defective or dysfunctional” because the alleged harasser could not read or understand it. He could only read Spanish. Further, the employer didn’t even attempt to explain the policy to him verbally in Spanish. The court said, “Because the policy was not presented to Mr. Lazo [the alleged harasser] in a way he could understand, it was defective or dysfunctional.”[3]
While the Tinoco case dealt only with the first element of the Faragher/Ellerth defense, language ability can easily play a role in the second element, too. For the second element, an employer must show that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities offered by the employer. Most commonly, employers argue that their policy instructed victims to report harassment, gave them lots of options for reporting, protected them against retaliation, but the plaintiff chose not to report. If the employee can’t read the policy, however, it would be pretty difficult to expect her/him to follow those instructions. Under such circumstances, a court might well decide that a plaintiff who didn’t complain acted reasonably.
Attorneys Recommend Translation
Unsurprisingly, in the wake of the Tinoco decision, employment attorneys are recommending that employers translate anti-harassment policies for non-English speaking employees.[4] Translating anti-harassment policies (and other important workplace policies) is certainly a great start. But is translation of the policy enough?
Is Translation, Alone, Enough?
In reality, there are several ways an enterprising plaintiffs’ attorneys might argue that translation, alone, is not enough:
- Q&A: Even if the policy is translated, Limited English Proficient (LEP) workers might not have the ability to ask questions and receive answers in a language they can understand, unlike their English-speaking counterparts;
- Training: If an employer offers regular sexual harassment training, it is arguably agreeing that just reading the policy isn’t enough to educate employees. It stands to reason, then, that a translated policy might not be enough to educate LEP employees. Rather, the training should also be available in their languages. Further, where training is used as a remedial effort – e.g., requiring the alleged harasser to undergo special, additional training – is it really an effective corrective action if it’s in a language the alleged harasser can’t understand?
- Reporting: Multiple reporting options are typically made available to English-speaking employees (e.g., immediate supervisor, HR, CEO, etc.). If LEP employees have limited (or no) means to complain in their native languages, is the policy really effective?
- Investigation: Where the victim, harasser, and/or witnesses have English-language challenges, will investigators be able to properly interview them? And would an English-language interview with someone with low English proficiency leave open the possibility of that person later claiming, “I just didn’t know the English words and that’s not what I really meant.”
Language Access Options
Fortunately, employers have many options when it comes to engaging a multilingual workforce, starting with translating sexual harassment and other important workplace documents. From this solid foundation, employers can employ several options to ensure employee understanding and keep the lines of communication open:
- Video translation: Use subtitles, captions, and/or voiceover for video training courses on important topics like sexual harassment in the workplace.
- Video and/or phone interpreting: Provide instant access to an interpreter via video or phone 24/7/365 to empower LEP employees to ask questions, raise concerns, and/or participate in investigations.
- Onsite interpreting: Bring an interpreter on-site for lengthier, more complex conversations at the complaint, investigation, and/or resolution stage -or- to allow LEP employees to participate in live training courses.
- Website localization: Many employers – especially large companies – offer reporting mechanisms via online reporting. Localizing your company’s intranet allows LEP employees the opportunity to report concerns online.
Vocalink Global’s TheInsideOut solution incorporates the above options and more to help employers build an active and engaged multilingual workforce, while at the same time managing and minimizing risk. Want to learn more? Connect with us today!
Footnotes:
[1] See Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
[2] See Tinoco v. Thesis Painting, Inc., Case No. GJH-16-752, U.S. Dist. Court, D. Maryland, Southern Division, September 24, 2018.
[3] Id. [internal citation omitted].
[4] See, e.g. “Employers Should Provide Harassment Policies in Applicable Languages,” Fiona W. Ong, Shaw Rosenthal LLP.