May 16, 2012

VIII. Employer Failure to Address Sexual Violence and Harassment

There are a lot of businesses that benefit from a cheap, docile labor supply that won’t cause any problems because they don’t want any attention. It’s why nothing happens; the status quo works economically.
—Rick Rominger, California farmer, September 9, 2011.
When I tell a lot of workers what their rights are, they say, “Could you tell the grower?”
—Daniela Dwyer, Attorney, Florida Legal Services, Migrant Farmworker Justice Project, May 12, 2011.

Some employers work hard to keep their workers safe from sexual harassment and comply fully with worker safety laws. One California farmworker who reported suffering harassment from a supervisor had also worked for companies who did things differently: “I’ve seen companies that take care of their workers. Where they provide bathrooms, have you wash [your] hands, have everything ready.”[345]

Unfortunately, some do not. Some are ignorant of, or choose not to see, what is happening at their workplace, while others retaliate against employees who try to report violations and abuses. Some are even actively belligerent toward those who seek to provide farmworkers with information about their rights.

Taking Advantage of the Dysfunctional Immigration System

Every grower and industry representative we interviewed expressed frustration with the current US immigration system. Although agricultural labor is often seen as unskilled work, several farmers stated that they value their employees for their experience and their skills. Phil Foster, a farmer in California, described his farm as a “complex operation” where it is “key to have people who’ve worked on the farm for years.” For Foster, “we rely on people with agrarian skills who are valuable employees and valuable members of the community. If they are not legal, then we should work towards fixing that.”[346] Manuel Cunha, president of the Nisei Growers League, and Rob Roy, president and general counsel of the Ventura County Agricultural Association, both stated that their organizations have worked to reform immigration and guestworker laws for farmworkers. For Roy, it is important that they “take care of people who are here, who have built families and are very skilled.”[347]

Despite industry interest in reforming immigration, there are unscrupulous employers who take advantage of their workers’ unauthorized status. As discussed above, the ever-present fear of deportation helps to create a workplace where workers will put up with abuses rather than report them. The threat of an employer calling ICE does not have to be stated explicitly for it to silence workers, but some supervisors and employers go further and explicitly use workers’ unauthorized status to intimidate them.

As noted previously, Mercedes A. reported that the supervisor who touched her and her co-workers on their bottoms and breasts threatened to call immigration when they protested.[348] Angela G., a farmworker who brought a sexual harassment lawsuit against her company, was deported while the lawsuit was pending, and she believes the company may have called immigration authorities to silence her.[349] Similarly, Mercedes Lorduy, a legal services attorney in Florida, reported that one of her clients was told by her rapist, “Who do you think is going to believe you? You’re illegal, you don’t have any papers.”[350] Monica V., whose story is recounted in greater detail below, tried to discuss what the company could do about a workplace injury, but the employer reminded her that she was unauthorized and threatened to call the police.[351]

Monica V.’s Story

Monica V. has six children in Guatemala. She reported that she came to the US 12 years ago because the father of her children left her, and she could no longer take care of her children. Her family was eating only one meal a day, consisting of a tortilla with salt.

When Monica first arrived in the United States, she began working in sanitation at a turkey processing plant in Georgia. About three years after she started, she was injured when the hose she used to spray the machines hit her eye. The company clinic told her she was fine and she could keep working, but her eye continued to bleed. The company then brought her into the office and asked her for “good papers,” even though she had already been working at the company for three years. Because she was unauthorized, they fired her.

She had been working two shifts a day, from 10 pm to 7 am, and then from noon to 6 pm. She then took on another two hours injecting turkeys from 6 to 8 pm. Monica only slept three hours a night and had to have her friend bring her coffee and her uniform between shifts. “But when I had the accident,” she says, “they started to disregard me. I was no longer good for them.”

She reported that her lack of immigration status was used against her again when she was injured after seven years of work at a chicken processing plant. Monica’s hand had been injured so badly, she said, that two of her fingers still have no feeling. The company called her into the office and asked, “Do you want us to call the police or do you want to leave on your own?” She said, “Why would you want to call the police?” and they responded, “Because the papers are not good. You have to leave or I’ll call the police.” Her supervisor asked her where she lived; he was “very clear what he was looking for.” If Monica had sex with him, she could have her job back. Monica says, “I cried so bitterly, why God, why so many things? And they didn’t give me back my job.”

After 12 years in the US and numerous injuries, Monica said, “I feel so sad in this country…. Does the president not know how much we do? How much we sacrifice? And now we are criminals?”[352]

Inadequate Sexual Harassment Trainings and Policies

Some growers and employers take a strong stance on sexual harassment, and some farmworkers reported that they were able to report abuses to their employers and have the problems dealt with immediately and effectively. For example, Santiago I. stated that he had once worked with a foreman who would harass women and who even went to one woman’s house. Santiago told his employer, and the foreman was fired.[353] Lorena U. reported that she when she told the owner of the farm where she worked that the foreman had sexually harassed her, the owner fired him.[354]

In both of these examples, the workers fully understood their rights. Santiago declared that although other unauthorized immigrants might not call the police if victimized, he would, “because I have rights.”[355] Lorena similarly stated, “I knew it was an abuse of my rights. It was a failure to respect me as a person.”[356] And in Lorena’s case, she approached the employer with a caseworker at a local agency who encouraged her. She said the employer told her he had previously received complaints from other employees, and he regretted not believing the other women.[357]

Unfortunately, 0ther farmworkers reported that their employers are ignorant of, or choose to ignore, what is happening to their workers. Jimena H., who has worked in North Carolina and Georgia, stated, “In some places, the boss is good, but the manager is very mean and abusive.”[358] Angela G., whose report of rape is recounted above, stated, “I know there are a lot of laws, but the problem is [with] the company and the supervisors, and they don’t enforce these laws because they have their own agenda.”[359] Bianca H. concurred: “[The owners] only know production; they don’t know what’s going on, it doesn’t matter to them if people are exploited…. When they hurt with money, they will care.”[360] Ana I., a 16-year-old who described sexual harassment by a contractor, emphasized, “Ranchers should go out and see how workers are being treated.”[361]

In cases where they tried to report abuses, farmworkers and attorneys reported that their complaints were not fully investigated, abuses were tolerated, and they suffered retaliation, including reduced hours, less desirable work, and termination.[362] Veronica Z. stated that when she reported being raped by her supervisor to company management, they gave her an English-language document that they said confirmed she would not lose her job and that they would stop the abuse; they also pressured her to sign the document. When she brought the paper to a counselor at a social services agency, however, the counselor discovered that it actually said she would not sue the company.[363]

Few farmworkers interviewed by Human Rights Watch had ever received training on workplace safety, including sexual harassment. At most, they received brief instructions on how to do their tasks, such as how to cut plants when harvesting crops. Mercedes A. reported that “sometimes … we get a video saying we have a right to water, etc.,” but such trainings are perfunctory and the workers “still do not receive water.”[364]

In California, state law specifically requires employers with at least 50 employees to provide trainings on sexual harassment to supervisors and managers once every two years. They must also create anti-harassment policies, provide information on these policies to all employees, and post a copy of the Department of Fair Employment and Housing’s anti-harassment poster.[365]

Several grower associations based in California expressed their commitment to ensuring their members obey the law. Jim Bogart, counsel for the Grower-Shipper Association, stated, “We take [sexual harassment] very, very seriously.”[366] The association conducts educational workshops, assists members in drafting policies prohibiting sexual harassment, ensures that posting requirements are being met, and conduct audits. He believes the current requirements are “fair and sufficient” and that the steps they are taking are working because he has not been called on to defend any sexual harassment claims against members.[367] Rob Roy of the Ventura County Agricultural Association described similar policies to assist members in complying with the law, though he felt it was not a big issue in his county and had not seen any rise or decline in claims because of the law.[368] Manuel Cunha, president of the Nisei Growers League, stated that the association takes sexual harassment seriously and interviews growers and labor contractors before accepting them as members. He did, however, also express some skepticism of sexual harassment claims and believes that although some claims have merit, others involve employees who have been dating but then have a falling out, or “problems within people’s own culture,” resulting in a “flurry of false claims for money.”[369]

Some farmers in California told us they realize that sexual harassment happens and they address it. Rick Rominger stated, “Like any large operation, we’ve had some complaints and we’ve dealt with [them].”[370] Larry Jacobs has fired an employee for sexual harassment, and he feels employers should be able to address the issue: “Sexual harassment is easy—just fire [him]…. When you hire someone, go over the policy, explain it to them … in written and oral form.”[371]

Some farmworkers in California say that companies seem to be improving. Rosa O. stated, “It helps when companies take it seriously; they talk about it, do trainings.”[372] Luz S. was more measured, but noted, “With training, it’s better, more or less. There are some supervisors who’ve been paying attention, [though] some don’t do anything at all.”[373]

However, some farmworkers reported incidents in which employers failed to meet their obligations to address sexual harassment complaints, even as they instituted sexual harassment policies and trainings. Eva P. worked with a co-worker who would make derogatory statements about women. Although she had been required to watch a video and been given a booklet on sexual harassment when she began, when her co-worker made these statements, the foreman did nothing to stop him.[374] When Laura G., a poultry processing worker, reported sexual harassment to company officials, they simply showed her and her harasser the same video they had shown her when she started and took no further steps to stop the harassment.[375]

Training materials are sometimes poorly translated from English to Spanish. Michael Marsh, an attorney with California Rural Legal Assistance, found in one case that a major multinational agricultural company had a Spanish-language policy filled with nonsensical phrases and errors. In one place, the policy stated in Spanish, “If you complain about sexual harassment, you will be retaliated against,” the key word “not” having been left out.[376] He stated that in another case he had seen a piece of paper signed by employees to indicate they had received sexual harassment training, but the signatures had clearly been forged.[377]

Some farmworker organizations and employers have created special mechanisms for protecting workers from sexual harassment. The Coalition of Immokalee Workers in Florida has pushed both growers and large corporate buyers of tomatoes to raise wages and improve working conditions for tomato farmworkers. As a result, supermarket and fast food companies have agreed to a penny-per-pound increase in payments for tomatoes and now require growers supplying the tomatoes to abide by a code of conduct that includes trainings and complaint procedures for sexual harassment, as well as protection from retaliation.[378] The Farm Labor Organizing Committee has similarly pressed corporate buyers of tobacco and pickle cucumbers to take responsibility for abuses in the supply chain.[379] Where United Farm Workers has a collective bargaining agreement with a grower, any complaint of sexual harassment is covered by the grievance procedure.[380]

These organizations, however, represent only a tiny percentage of farmworkers in the US.

[345] Human Rights Watch interview with Natalia B., Magdalena C., Ana D., and Soledad E. (pseudonyms), California, April 2011.

[346] Human Rights Watch telephone interview with Phil Foster, California farmer, July 1, 2011.

[347] Human Rights Watch interview with Rob Roy, President and General Counsel, Ventura County Agricultural Association, Camarillo, California, August 10, 2011.

[348] Human Rights Watch telephone interview with Mercedes A. (pseudonym), August 2011.

[349]Human Rights Watch interview with Angela G. (pseudonym), California, June 2011.

[350]Human Rights Watch telephone interview with Mercedes Lorduy, Attorney, VIDA Legal Assistance, May 18, 2011.

[351] Human Rights Watch interview with Monica V. (pseudonym), New York, August 2011.

[352]Human Rights Watch interview with Monica V. (pseudonym), New York, August 2011.

[353] Human Rights Watch interview with Santiago I. (pseudonym), California, June 2011.

[354] Human Rights Watch interview with Lorena U. (pseudonym), California, June 2011.

[355] Human Rights Watch interview with Santiago I. (pseudonym), June 2011.

[356] Human Rights Watch interview with Lorena U. (pseudonym), June 2011.

[357] Ibid.

[358] Human Rights Watch interview with Jimena H. (pseudonym), North Carolina, August 2011.

[359] Human Rights Watch interview with Angela G. (pseudonym), California, June 2011.

[360] Human Rights Watch interview with Bianca H. (pseudonym), California, June 2011.

[361] Human Rights Watch interview with Ana I. (pseudonym), North Carolina, July 2011.

[362] For more information, see p. 44 of this report, “Termination and Other Forms of Retaliation,” in “IV. The Lasting Impact of Workplace Sexual Violence and Sexual Harassment.”

[363] Human Rights Watch interviews with Veronica Z. (pseudonym), California, June 2011; and counselor (name withheld), California, June 2011.

[364]Human Rights Watch interview with Mercedes A. (pseudonym), New York, August 2011.

[365] AB 1825, California Government Code 12950.1.

[366] Human Rights Watch telephone interview with Jim Bogart, Grower-Shipper Association (Salinas, California), June 30, 2011.

[367] Human Rights Watch telephone interview with Jim Bogart, June 30, 2011.

[368] Human Rights Watch interview with Rob Roy, August 10, 2011.

[369] Human Rights Watch interview with Manuel Cunha, President, Nisei Farmers League, Fresno, California, August 12, 2011.

[370] Human Rights Watch telephone interview with Rick Rominger, California farmer, September 9, 2011.

[371] Human Rights Watch telephone interview with Larry Jacobs, Jacob’s Farm, July 1, 2011.

[372] Human Rights Watch interview with Rosa O. (pseudonym), California, August 2011.

[373] Human Rights Watch interview with Luz S. (pseudonym), California, August 2011.

[374]Human Rights Watch interview with Eva P. (pseudonym), California, August 2011.

[375] Human Rights Watch interview with Laura G. (pseudonym), North Carolina, August 2011.

[376]Human Rights Watch interview with Michael Marsh, Directing Attorney, California Rural Legal Assistance, Salinas, California, April 26, 2011.

[377] Ibid.

[378] Kristofer Rios, “After Long Fight, Farmworkers in Florida Win an Increase in Pay,” The New York Times, January 18, 2011, http://www.nytimes.com/2011/01/19/us/19farm.html (accessed March 9, 2012); Human Rights Watch telephone interviews with Steve Hitov, General Counsel, Coalition of Immokalee Workers, March 14, 2011; and Julia Perkins, spokesperson, Coalition of Immokalee Workers, May 20, 2011.

[379] Human Rights Watch telephone interview with Justin Flores, Organizer, Farm Labor Organizing Committee, June 20, 2011.

[380] Human Rights Watch interview with Sergio Guzman, Secretary-Treasurer, United Farm Workers, Salinas, California, June 30, 2011.