In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.
In this case, a female employee claimed that she had been sexually harassed by her male coworker. The company attempted to avoid liability using the Faragher/Ellerth affirmative defense. Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things. “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.
Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English. The alleged harasser only spoke Spanish and did not understand any English. Therefore, he was unable to read or understand the policy.
Take home for employers
This case sends a simple message to employers – in order to have an effective harassment policy, the company should make the policy available to its non-English speakers in their native language. This can be accomplished by:
- Translating the policy and providing the translated, written policy to the employees in their native language(s) or
- Having a supervisor verbally translate the policy, word for word, and have the employee acknowledge by signature a written acknowledgment in their language that a verbal translation was provided. This acknowledgement should also contain date and time of the translation, who translated the policy, and a statement that that the employee was given an opportunity to ask any questions about the policy.