Most companies know that it is critical to have a harassment policy. The U.S. Supreme Court has held that an effective harassment policy can help an employer avoid liability, where the policy is communicated to employees but the employees fail to follow the policy’s complaint procedure. The communication and content of the policy is essential to the employer’s defense, as a federal district court in Colorado recently emphasized in EEOC v The Spud Seller, Inc. What is effective communication and what is an effective policy depends on the situation, however. This is a particular concern where at least part of the workforce does not speak English.
In The Spud Seller case, the employer had implemented a sexual harassment policy, shown a video regarding the policy to its employees, and conducted periodic training on the policy. The plaintiff-employees in the case all had viewed the video and signed an acknowledgement of receipt for the harassment policy. One might reasonably assume that the employer had taken the appropriate measures to communicate the policy. However, as the Court noted, there were numerous problems with the policy and its communication to the employees:
- The employees in question were Spanish-speaking, and there was no evidence that a Spanish translation of the policy had been given to the employees.
- While the video was in Spanish, it was not necessarily a complete statement of the policy.
- The persons identified in the policy to receive complaints of harassment were not Spanish-speaking, which meant that these employees had to use an interpreter or request the assistance of a bilingual co-worker, undermining the confidentiality of their complaints.
- The employee the Company primarily used for communicating with the Spanish-speaking employees, including translating the policy, was the alleged harasser.
This case emphasizes that employers with employees who do not speak English must be particularly careful to ensure that these employees are informed about the harassment policy (and other critical policies), and that these employees have effective and confidential means of reporting violations of such policies.