Failure to Translate Employee Handbook
Can Defeat Employer
Defenses in Discrimination Claims

Employee Handbook Translation
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Why Professional Translations of Employee Handbooks are Important for Every Company

Legal document translation services are vital for shielding employer from liability in employment discrimination cases.  The question of whether an employee has proper notice when an employee handbook is not available in that employee’s language has been addressed in the courts on several occasions. Since numerous state and federal laws, including discrimination, labor issues, workers’ compensation, and non-compete clauses, depend on the employee’s understanding of the employer’s rules and regulations, not supplying an employee with a handbook or manual that he or she can understand can be a crucial issue in an employer’s ability to prove its case.

Here are some recent examples of the importance of a properly and professionally translated employee handbook:

D’Annunzio

One of the most recent cases on this topic was decided in June 2014 by the United States District Court for the Eastern District of New York. In D’Annunzio v. Ayken, 2014 U.S. Dist. LEXIS 76929 (EDNY 2014), the court granted summary judgment to plaintiffs, kitchen workers who were sexually harassed by their restaurant coworkers. While the employer did have an employee handbook written in English which contained policies on sexual harassment and personal misconduct, the primary language of the restaurant’s kitchen workers was Spanish. While newly-hired employees were provided copies of the handbook, no Spanish translation was made available and the defendants could not confirm that workers who spoke Spanish understood the handbook’s contents.

The defendants tried to use the Faragher-Ellerth defense which consists of two prongs: (1) the employer exercised reasonable care to prevent the harassment and (2) the employees failed to avail themselves of opportunities provided by the employer to correct or prevent the behavior. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The court held that the employer could not use this defense because “reasonable care” would have included providing the employees with a translated copy of the handbook.

While what the court called “appalling sexual abuse” in this case could have been sufficient for a judgment for the plaintiffs in any case, the lack of a translated handbook definitely contributed to the employer’s failure to defend its position in this case.

Portillo

In another case with disturbingly similar facts, EEOC v. The Spud Seller, 899 F.2d 1081 (D.Colo. 2102), a female employee who read and spoke only Spanish had been the subject of sexual harassment by a supervisor. When she complained to a manager, she had to rely on a co-worker to interpret for her. The management concluded that the employee was not telling the truth. She left her job approximately two weeks later and filed a charge of discrimination with the EEOC.

The company argued that it had provided a handbook to the employees that was written in English, and claimed that it was “explained” to workers who did not speak English. The employer also required employees to watch a video which was available in both English and Spanish. Employees were required to sign a form which said they had received a handbook and had watched the video, both of which had been signed by this employee.

The employer in this case also relied on the Faragher-Ellerth doctrine, alleging that the handbook, video and other measures created a company policy to prevent harassment and discrimination. While the court acknowledged these efforts, it questioned whether they met the Faragher-Ellerth definition of “reasonable care.”

The court ruled against the employer based upon the following facts: first, while the employer said that the handbook was “explained” to Spanish-speaking employees, there is no evidence as to what was actually “explained”. In addition, even though the video was available in Spanish, the company presented no evidence that it was a complete picture of all the policies provided to employees.

Second, regardless of the adequacy of those translations, the employer’s procedures for Spanish-speaking employees to present a complaint was also disturbing. If an employee who spoke Spanish chose to bring her complaints to the attention of management, he or she had to find an interpreter or have another employee provide the translation because none of the supervisors designated to hear these complaints spoke Spanish. This in itself created problems regarding confidentiality and retaliation.

The court ultimately decided that summary judgment for the employer on the facts was not appropriate and also declined to grant summary judgment to the employer on the issue of punitive damages. The question of whether the employer acted in good faith to educate its employees as required by Faragher-Ellerth leaves open the possibility for an award of punitive damages. [Note: The employer ultimately settled the case for $255,000 plus mandatory monitoring of the company’s employment practices. EEOC v. The Spud Seller, 899 F.2d 1081 (D.Colo. 2102) (“Consent Decree”).]

Just these two cases decided within the last two years are prime examples of the pitfalls of failing to provide professionally translated handbooks to all employees in whatever languages they speak.

Contact our legal translation company for assistance with multilingual employee manual translation services and with on-site interpreting services for company meetings.

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