Arbitration: No Comprende? No Problem! Third Circuit Binds Spanish Speaker to English (Web)
September 2, 2008
A 2-1 Third U.S. Circuit Court of Appeals panel has ruled that a Spanish speaker was bound by an English language employment arbitration agreement he couldn’t understand.
Circuit Judge Michael A. Chagares wrote that the St. Croix, V.I., welder “in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.” Morales v. Sun Constructors Inc., No. 07-3806 (3d Cir. Aug. 28, 2008) (available at http://www.ca3.uscourts.gov/opinarch/073806p.pdf).
Today’s Legal Intelligencer of Philadelphia has a story here.
In fact, at the defendant employer’s orientation briefing, the defendant’s representative enlisted another employee who the plaintiff knew for help in filling out documents. The translator, according to the opinion, later testified that he understood about 85% of the English he hears or sees, and that the plaintiff didn’t ask about what he was signing, nor did the translator explain the arbitration clause.
But Chagares wrote that it was the plaintiff’s obligation “to ensure he understood the [a]greement before signing.” The opinion notes that the plaintiff didn’t ask the translator to do a word-for-word breakdown. Nor did the plaintiff ask to take the agreement home and have it translated; the opinion says the plaintiff had testified that he had paid for translations previously. The plaintiff also didn’t request a copy of the employment contract and, in the nearly one year in which he worked for the defendant, he didn’t question the agreement’s terms
Circuit Judge Julio M. Fuentes dissented, disagreeing with the majority that the worker assented to the contract. The problem, the dissenter notes, is that the employer took on the responsibility of informing the worker of the arbitration provision, but didn’t follow through:
If the facts of this case were different, I might adopt the majority’s position. For example, if [defendant] Sun had simply handed the Agreement to [plaintiff] Morales and indicated that it was Morales’ responsibility to find a translator, and Morales had employed [an] incompetent translator who failed to translate the arbitration clause, I would agree that Morales was bound by the Agreement. However, when Sun made the decision to insert itself between Morales and the contract, it created a situation where lack of mutual assent could, and did, occur.