Professional translation services play an important role for employment attorneys and their clients, who conduct business in culturally diverse workplaces. And we are not talking only about the importance of accurate professional translations of Employee Handbooks, Employee Manuals and Employee Guides for the LEP (Limited English Proficiency) employees and their English-speaking employers, and the need for professional language interpreting and translatng services in linguistically diverse work environments..
The 1998 U.S. Supreme Court cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) gave employers a defense to protect themselves against charges of supervisory harassment. However, there is a question of how these decisions play out when the employee is a foreign language speaker.
The defense against vicarious liability requires an employer to demonstrate:
Obviously, when the employee is a foreign language speaker, some difficulties in satisfying these requirements arise. For instance, if the employer cannot communicate with the employee, can they be said to have exercised reasonable care? And if the employee is unable to understand the corrective opportunities provided, can they be said to have acted unreasonably?
In order for an employer to protect their right to use this defense against vicarious liability, it is essential that all policies and procedures have a foreign language translation and that these foreign language translations are carefully communicated to the foreign language speaking employee.
The defense against vicarious liability requires an employer to demonstrate:
- They exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and
- The employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Obviously, when the employee is a foreign language speaker, some difficulties in satisfying these requirements arise. For instance, if the employer cannot communicate with the employee, can they be said to have exercised reasonable care? And if the employee is unable to understand the corrective opportunities provided, can they be said to have acted unreasonably?
In order for an employer to protect their right to use this defense against vicarious liability, it is essential that all policies and procedures have a foreign language translation and that these foreign language translations are carefully communicated to the foreign language speaking employee.
