A recent case highlights the need for employers to provide harassment policies in the language(s) spoken by their workforce.
Under the Faragher/Ellerth affirmative defense, as established by the U.S. Supreme Court, 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. The employer can demonstrate this care by implementing and distributing an effective harassment policy.
In Tinoco v. Thesis Painting, Inc., the employer adopted and distributed an anti-discrimination policy, but the policy was deemed to be “defective or dysfunctional,” because it was provided only in English. The alleged harasser was Spanish-speaking only, and he could not read or understand the policy.
Thus, this case warns employers that harassment policies should be made available to non-English speaking employees in their language. If a written translation is not available, the employer should have a manager 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, the date and time of the translation, who translated the policy, and that the employee was given an opportunity to ask any questions about the policy.