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English, Legally Speaking

By: Doug Ehlke

Saturday, November 01, 2008
 
Employment Agreement Enforceable Even When the Employee Didn’t Understand English

Juan Morales, the plaintiff, is a Spanish-speaking welder who resided in St. Croix, U.S. Virgin Islands. Welders were in great demand when he was hired by Sun Constructors. The company had Morales sign an employment agreement that contained an arbitration-of-all-employment-disputes requirement.

When hired, Morales passed a written exam, in English. Sun hired him and required him to attend a 2.5-hr. orientation conducted in English and to sign the hourly employment agreement.

Five paragraphs of the employment agreement pertained to arbitration and covered nearly eight of the 13 pages of the agreement. The employee who conducted the orientation, Mr. Langner, asked Jose Hodge, a bilingual applicant at the orientation, and whom Morales knew, to explain what Langner was saying and help Morales fill out the documents. Hodge testified that he generally understood about 85 percent of what was said and written in English. He also stated that Morales did not ask him what he was signing and that he did not specifically explain the arbitration clause to Morales. Langner stated that he did explain the arbitration provisions in English and that, during the orientation, Hodge spoke to Morales in a foreign language. The agreement governed the employment relationship between Morales and Sun for the entirety of the relationship.

Sun later fired Morales for allegedly dumping a bottle of urine from a great height on another contractor’s employees in violation of safety standards. Morales filed a wrongful termination suit against Sun in federal court seeking relief to avoid the employment agreement’s arbitration clause.

Ignorance of the law (or contracts one signs) is no excuse, absent fraud. The Third Circuit U.S. Court of Appeals, which heard this case, relied on several key principles:

• There is a strong federal policy in favor of the resolution of disputes through arbitration (instead of clogging the civil or federal courts);

• Arbitration agreements are enforceable to the same extent as other contracts;

• Courts should apply state-law contract principles when deciding the issue of whether the parties agreed to arbitration a certain matter of type of dispute;

• Contract law principles applicable include:

a) The formation of a contract requires a bargain in which there is a manifestation of mutual assent of terms and conditions and legal consideration.

b) Acceptance is measured in the law not by the parties’ subjective intent, but rather by their outward expressions of agreement or assent.

c) Every contracting party has the duty to “learn and know the contents of a contract before he signs and delivers it.”

d) Arbitration-clause employment contracts constitute no exception to these principles.

The Appeals Court cited an 1875 U.S. Supreme Court decision for the further corollary that “it will not do for a man to enter into a contract, and when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained.” The court cited precedent that even an illiterate person can bind himself by contract when failing to learn the contents of an instrument that he has signed.

The only exception to this binding impact is if a signed contract represents fraud, but the Appeals Court noted that Morales did not claim fraud nor that Sun misrepresented the agreement contents.

Morales v. Sun Constructors, Inc., No. 07-3806, August 28, 2008

Fired Employee Allowed to Sue for National Origin Discrimination

Before immigrating to the United States, Juan Esteños was an auditor and accountant in his native Perú. While he initially sought similar work, he settled for a position as an office clerk at the Paho/Who-FCU, the employee credit union for the UN-affiliated Pan-American Health Organization and World Health Organization. At the time, Esteños had only completed a basic class in English, and his grasp of the language was rudimentary.

According to Esteños, his job interview was conducted in Spanish by the general manager, the manager of operations and the finance manager, who all were bilingual. Although the plaintiff testified that the GM told him that in order to progress to a more advanced position he “should continue studying English,” the GM did not recall any conversations with the plaintiff regarding his ability to speak English or Spanish.

The parties disputed whether the office clerk position required English proficiency at the time Esteños was hired. With its motion for summary judgment, the employer submitted a document labeled, “Job Description—Office Clerk,” which named Esteños as the office clerk, yet listed the following requirements: “High School diploma; banking experience desired; very good knowledge of English and Spanish.”

Esteños contended that since it is undisputed that he did not have a “very good knowledge of English” at the time he was hired, the language requirement the credit union identified was either ignored or added after he was hired. When describing the duties of the office clerk, one manager mentioned only tasks that could require English reading comprehension—reading notes that came with checks deposited with the credit union or messages that were added to customers’ accounts. The credit union contended Esteños communicated with his coworkers in Spanish, but staff meetings were conducted in English.

After a probationary period, the plaintiff received a positive evaluation from his immediate supervisor, that his performance was “highly regarded,” and that he was an “eager learner” whose “accomplishments were noteworthy.” The evaluation concluded with the expectation that the plaintiff’s knowledge of the credit union’s products would be “developed” and that his work responsibilities would be increased. There was no mention of his lack of English proficiency or of any resulting negative impact on his ability to perform his assigned work.

After completing the probationary period, the plaintiff received a salary increase. Shortly thereafter, the credit union’s new CEO, who did not speak Spanish, terminated Esteños “due to his inability to fulfill the requirement of the position.” The termination letter explained that, “the job requires fluency in both English and Spanish. The plaintiff’s lack of fluency in English makes it impossible for the plaintiff to fulfill the requirements of the position.” According to Esteños, he was being terminated because the new CEO “did not understand” his limited English. Esteños was not replaced; instead his duties were distributed among other staff members.

Esteños filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that his firing was discriminatory, based on national origin, “because of his lack of fluency in English.” The EEOC found “reasonable cause to believe” that the credit union violated Title VII, by discriminating on the basis of national origin due to Esteños’s inability to speak English. It also found the employer’s reason to be pretextual because it had not fired another employee who spoke only English and had trouble communicating with the Spanish-speaking customers. The credit union disputed the EEOC’s determination, citing its history of hiring Peruvians, and the necessity that Esteños be able to communicate with the office clerk without having to resort to other staff as interpreters. Because the EEOC could not obtain a settlement, the agency advised Esteños of his right to sue, stating again that it found “reasonable cause to believe that violations of Title VII occurred with respect to some or all of the matters alleged in charge.”

The Appeals Court denied the employer’s summary judgment motion and let the national origin claim proceed to trial because:

• There was a factual dispute issue over whether the employer’s reason for the termination was really a pretext for the firing. Reportedly, the previous CEO had no trouble communicating with Esteños, and the credit union had retained another employee who was not English proficient;

• With respect to the “linguistic characteristics” of persons of a national origin group, the EEOC has identified “fluency-in-English” and “English-only” requirements for employment as possibly discriminatory;

• Federal courts recognize the potential discriminatory impact of certain linguistic requirements and, consequently, have found that Title VII offers employees protection against that kind of discrimination, understanding that accent and national origin can be inextricably intertwined in many cases; and

• The determination of whether an employment action based on an employee’s linguistic characteristic is discriminatory is highly fact-bound and, for that reason, unlikely to be resolved on summary judgment.

Esteños v. Paho/Who Federal Credit Union, No. 04-CV-1093, Sept. 13, 2008 (D.C. Court of Appeals). MF

 


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