October 8th, 2012 | Pamela Wolf
A recent court decision should remind employers to make sure that Spanish-speaking employees are actually informed of the company’s sexual harassment policy and that the policy is actually effective for this group of employees.
The decision. A federal district court in Colorado ruled that the EEOC and a Spanish-speaking former employee can proceed to trial on their claims that a supervisor created a sexually hostile work environment based on evidence that the employer’s investigation of the harassment was not in good faith and that it fell short of taking reasonable measures to prevent and correct such harassment (EEOC v The Spud Seller, Inc, September 30, 2012, Dkt No 10-cv-02381-MSK-KLM M). Fact issues remained as to the employer’s liability under a negligence theory because there was evidence that it had notice and/or actual knowledge of the abuse but failed to investigate the allegations in good faith. Vicarious liability questions also remained about whether the employer adequately informed Spanish-speaking employees of its anti-harassment policy and whether the policy was effective, especially since the alleged harasser was the bilingual person who usually explained the policy and interpreted for Spanish-speaking employees.
What’s the take-away for employers? This case is worth a careful read for any employer with Spanish-speaking employees. The employer in this case left itself open to liability in a number ways, including by not providing complete Spanish translations of its sexual harassment policy to Spanish-speaking employees and failing to conduct a thorough investigation of a sexual harassment complaint and the alleged harasser’s history.
Employers should keep in mind that Spanish-speaking employees have varying degrees of English comprehension. An employee who speaks only Spanish may be both more vulnerable to discrimination and less able to report the misconduct. Extra effort is required for employers to ensure that Spanish-speaking employees are informed of antidiscrimination policies and able to use designated channels for reporting abuse, especially in the case of sexual harassment. Failure to do so leaves the employer subject to liability for a rogue supervisor’s inappropriate conduct.
To avoid liability, employers with Spanish-speaking employees should consider implementing the following practices implicated in the court’s decision:
- Employees who speak only Spanish should be provided written Spanish translations of the sexual harassment policy — do not just rely on a Spanish video on the topic.
- The sexual harassment policy should include a statement that employees will not be retaliated against for making a complaint, and that as much as possible, complaints will be kept confidential, even though confidentiality cannot be guaranteed.
- At least one bilingual individual to whom Spanish-speaking employees may report complaints of sexual harassment should be formally designated; make sure the designee is trustworthy and has no prior complaints of bias against him or her.
- When a sexual harassment complaint is made, begin an investigation immediately no matter who has reported the conduct.
- Conduct a thorough investigation that includes a review of the alleged harasser’s personnel file to see if similar incidents have been reported, and if the complaint appears unsubstantiated, talk to the complainant again to see if he or she has any additional information that might help resolve any contradiction between statements obtained during the investigation.
- When concluded, inform both the complainant and the alleged harasser that the investigation has been completed and what was concluded.