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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Must Employers Translate A Sexual Harassment Policy Into Spanish For Employees Who Speak & Read Only Spanish?

Clipboard that reads sexual harassment at workplace

An employer’s liability for sexual harassment depends on whether the harasser is a co-employee or a supervisor.  In the context of sexual harassment by a co-employee, an employer is liable for the harassment if it failed to take prompt and effective remedial action to prevent the harassment from continuing after it knew or should have known of the harassment.  In the context of sexual harassment by a supervisor, an employer’s liability depends on whether the sexual harassment culminated in the taking of a tangible employment action, such as a demotion to discharge, against the victim.  If a supervisor’s sexual harassment culminates in the taking of a tangible employment action against the victim, the employer is strictly liable.  If, however, the supervisor harassment does not result in a tangible employment action against the victim, the employer may avoid liability if it can establish what is known as the Faragher/Ellerth affirmative defense as set forth by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Read more to find out if you should translate your sexual harassment policy.

To establish the Faragher/Ellerth affirmative defense, an employer must establish that:  (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the victim failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  The employer bears the burden of proof on both elements of the Faragher/Ellerth affirmative defense.  As to the first element of the Faragher/Ellerth affirmative defense, the employer must demonstrate that it exercised reasonable care to prevent sexual harassment and to correct promptly any sexual harassment that occurred.

Employers Must Have A Sexual Harassment Policy

Courts have consistently recognized that the existence of a sexual harassment policy with a complaint procedure for reporting sexual harassment is an important consideration in deciding whether the employer has exercised reasonable care to prevent sexual harassment.  However, the mere existence of a sexual harassment policy does not automatically satisfy an employer’s burden of showing that it exercised reasonable care to prevent sexual harassment.  Rather, as explained by the U.S. Eleventh Circuit Court of Appeals in Fredrick v. Sprint/United Management Co., 246 F.3d 1305 (11th Cir. 2001), “in order to establish that it took reasonable steps to prevent harassment,” an employer “is required to show that its sexual harassment policy was effectively published, that it contained reasonable complaint procedures, and that it contained no other fatal defect.”

In order to show that a sexual harassment policy was effectively published to employees, employers must do more than simply distribute their sexual harassment policy.  Rather, employers must explain their sexual harassment policy and provide training on their sexual harassment policy.  Indeed, as explained by the U.S. District Court for the Middle District of Alabama in Nuri v. PRC, Inc., 13 F.Supp.2d 1296 (M.D. Ala. 1998), evidence that an employer’s sexual harassment policy is not “well-known to employees” is fatal to an employer’s Faragher/Ellerth affirmative defense.  Plainly reinforcing the holding in Nuri, the U.S. District Court for Colorado in EEOC v. The Spud Seller, Inc., 899 F.Supp.2d 1081 (D. Colo. 2012) held that an employer’s sexual harassment policy is not “well-known” when employees who speak and read only Spanish are not adequately informed about the sexual harassment policy in Spanish. 

Women Subjected To Egregious Sexual Harassment

In that case, the U.S. Equal Employment Opportunity Commission (EEOC) brought an employment discrimination lawsuit against The Spud Seller, Inc. (Spud Seller) on behalf of nine female employees pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC, which is the federal agency responsible for enforcing Title VII, alleged that the women were subjected to hostile work environment sexual harassment by their supervisor, a man named Gaytan, in violation of Title VII.  The women worked at Spud Seller’s plant where potatoes were sorted, inspected, and packed. 

The EEOC claimed that Gaytan subjected the women to a sustained campaign of sexually harassing behavior, including propositioning them for sex, exposing himself, rubbing up against them with an erect penis, grabbing their breasts and buttocks, warning them not to bend over because it was an invitation to engage in sexual conduct, making lewd comments, and asking them out on dates.

When Gaytan’s sexual harassment was taking place, Spud Seller used an employee handbook that contained a policy prohibiting sexual harassment.  The employee handbook was printed only in English.  Spud Seller claimed that for employees who did not speak or read English, the policy was “explained” in Spanish.  Spud Seller also required all new employees to watch an orientation videotape (in both English and Spanish) that included a few sentences on sexual harassment.  The tape described sexual harassment generally and stated that sexual harassment was forbidden.  Spud Seller further claimed that at least once a year the sexual harassment policy was reviewed with employees at an employee meeting, with the explanation being interpreted into Spanish.

Policy Is No Remedy For Spanish Speaking Employees

Spud Seller filed a motion with the trial court seeking dismissal of the employees’ sexual harassment claims.  In doing so, Spud Seller argued that it was not liable for the supervisor sexual harassment because it established the Faragher/Ellerth affirmative defense.  In particular, Spud Seller claimed that it exercised reasonable care to prevent sexual harassment by adopting and implementing a policy against sexual harassment, displaying a video to employees, and conducting periodic training to employees.  The trial court denied Spud Seller’s motion for dismissal and ruled that the employees were entitled to bring their sexual harassment claims before a jury for resolution.

In denying Spud Seller’s motion for dismissal, the trial court found that there was “a question of whether Spud Seller adequately informed employees who spoke and read only Spanish about its anti-harassment policy.”  “The handbook that contained the policy,” the trial court pointed out, “was in English and there no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish speaking employees.”  Although “there was evidence that the policy was ‘explained’ in Spanish,” the trial court observed, it was “not clear what actually was explained.”  The trial court also explained that while the “video was presented in Spanish, [ ] it did not purport to be a complete statement of the contents of the policy” and “there may have been a difference between the explanation of the policy and the policy itself.”  Because there was “a question of whether the policy” provided “a meaningful remedy for Spanish speaking employees,” Spud Seller had not established that it exercised reasonable care to prevent sexual harassment.

Free Consultation With Ocala Sexual Harassment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we are dedicated to fighting for the rights of employees who have been subjected to sexual harassment in the workplace.  If you have been the victim of sexual harassment or have questions about an employer’s sexual harassment policy, please contact our office for a free consultation with our Marion County, Florida sexual harassment attorneys.  Our employee rights law firm takes sexual harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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