May 16, 2012

Summary

Hundreds of thousands of women and girls in the United States today work in fields, packing houses, and other agricultural workplaces where they face a real and significant risk of sexual violence and sexual harassment.[2] While the exact prevalence of workplace sexual violence and harassment among farmworkers is difficult to determine due to the challenges of surveying a seasonal, migrant, and often unauthorized population, the problem is serious.[3]

In researching this report, Human Rights Watch interviewed 160 farmworkers, growers, law enforcement officials, attorneys, service providers, and other agricultural workplace experts in eight states; almost without exception, they identified sexual violence and harassment as an important concern. Victims[4] of sexual violence and harassment are often reluctant to describe these experiences, yet nearly all of the 52 workers we interviewed, including many not specifically identified in advance as having been victims of such abuses, said they had experienced sexual violence or harassment or knew other workers who had.

Sexual violence and harassment in the agricultural workplace are fostered by a severe imbalance of power between employers and supervisors and their low-wage, immigrant workers. Victims often then face systemic barriers—exacerbated by their status as farmworkers and often as unauthorized workers—to reporting these abuses and bringing perpetrators to justice. To meet its human rights obligations to these farmworkers suffering sexual violence and harassment, the US government and agricultural employers must take steps to reduce and eliminate these barriers. This report documents the experience of immigrant farmworker women and girls with workplace sexual violence and harassment—with particular attention to unauthorized immigrants—and sets forth detailed recommendations for improving their working conditions and access to services and legal remedies.

Several farmworkers like Patricia M. (whose story is recounted above) reported being survivors of rape and other forms of coercive sexual conduct. Angela G., a single mother in California, told Human Rights Watch that she was raped by a supervisor who threatened her daily afterward.[5]  An 18-year-old indigenous woman from Oaxaca, Mexico, who spoke no English and practically no Spanish, reported her rape to a local farmworker women’s organization but left the area before the organization was able to help her seek justice. She reportedly told the young woman who tried to help her, “I would like to speak as you speak, but I can’t defend myself.”[6]

Many more farmworkers reported incidents of humiliating, debilitating harassment in the form of unwanted touching, pressure to engage in sexual relations, and verbal harassment. A woman in New York stated that she had picked potatoes and onions with a supervisor who touched all the women’s bodies, and if they tried to resist, he would threaten to call immigration or fire them. Women packing cauliflower in California described working with a supervisor who exposed himself and made comments like, “[That woman] needs to be fucked!”[7] Knowing that they are likely to be viewed as “sexual objects,” women often choose to wear clothes that obscure their faces and their bodies. Susana J., a farmworker who cut broccoli, stated, “Women can’t dress normally…. You think, ‘Oh my goodness, if I wear this, what will happen?’ And in that way, the harassers affect you every day.”[8]

Such violence and harassment are rarely singular events; many women reported that perpetrators had harassed and abused multiple victims over a period of time. Human Rights Watch’s investigation found that, in most cases, perpetrators are foremen, supervisors, farm labor contractors, company owners, and anyone else who has the power to hire and fire workers as well as confer certain benefits, such as better hours or permission to take breaks. Farmworkers frequently depend on employers for housing and transportation, creating more opportunities for those who seek to take advantage of vulnerable workers. Co-workers are also perpetrators, enabled, in part, by an environment that can seem tolerant of abuses. In interviews with Human Rights Watch, farmworkers noted that certain workers are much more powerless and more likely to be victimized than others, including girls and young women, recent immigrants, single women working alone, and indigenous workers.

The impact of such violence and harassment can be devastating. Survivors of sexual violence experience various responses to the trauma, including depression, physical pain, and damaged relationships with their partners and families. Although many of the farmworkers who reported abuse stated they did so after interacting with a rape crisis center or other similar agency providing assistance to victims of sexual assault, few farmworkers have access to such agencies. Even where such agencies are present in rural communities, they are not always able to provide adequate services to limited-English-proficient immigrant victims.

Farmworkers who push back against the abuse, or report incidents to management, say they suffer retaliation, getting fewer hours, more abusive treatment, or, worst of all, losing their jobs altogether. Because many farmworkers work with family members, retaliation can mean the victim is fired along with her family, resulting in loss of income to the entire household. Those who live in employer-provided housing can even find themselves homeless. Some farmworkers who had filed sexual harassment lawsuits reported they were “blackballed” and shut out of jobs at other farms.

In general, survivors of sexual assault and harassment in the US struggle to report the assault or pursue justice. Nearly one in five women in the US has been raped at some point in her life.[9] Yet despite the prevalence of sexual violence and decades of legal reform meant to hold perpetrators accountable, in 2008 only 41 percent of victims of rape or sexual assault reported the crimes to the police,[10] and in 2010 less than a quarter of reported forcible rapes resulted in an arrest.[11] Similarly, a 2011 Washington Post-ABC News poll found that one in four women and one in ten men have experienced workplace sexual harassment; only 41 percent of women who had experienced harassment said they had reported it to their employers.[12]

Farmworker survivors of workplace sexual violence face the challenges all survivors face, but on top of that, they face particular challenges as farmworkers and as migrants. The agricultural industry has long been treated differently than other industries under US labor law. Agricultural workers are excluded from such basic protections as overtime pay and the right to collective bargaining. The laws that do exist are not adequately enforced, and several studies, including previous Human Rights Watch reports, have found that wage theft, child labor, and pesticide exposure occur with troubling frequency. In such an environment, farmworkers are unlikely to have faith in the ability of authorities to rectify abuses.

The agricultural industry relies heavily on unauthorized immigrants, who make up about 50 percent of the workforce, if not more. Although growers and farmworkers agree that the current situation is unsustainable, the US Congress has failed to pass legislation that would enable farmworkers already here to gain legal status and would reform the existing guestworker system for agricultural workers. Even many immigrants with work authorization lack English proficiency and education, and those with guestworker visas are dependent on their employer to remain in legal status, which can discourage workers from reporting workplace abuses.

The lack of any immediate prospect for gaining legal status affects the ability of unauthorized farmworkers to report sexual violence, sexual harassment, and other workplace abuses in myriad ways. Although US law entitles unauthorized workers to workplace protections and labor enforcement agencies assert that broad application of the law best protects the rights of all workers, the US government’s interest in protecting unauthorized workers from abuse conflicts with its interest in deporting them. These competing interests affect unauthorized workers’ ability to exercise their rights in several key ways.

Unauthorized workers often struggle to find legal representation, since federally funded legal services organizations are prohibited (with some exceptions) from representing unauthorized immigrants. Moreover, in a 2002 decision, the US Supreme Court in Hoffman Plastic v. National Labor Relations Board held that an unauthorized worker fired from his job for organizing does not have the right to receive compensation for lost work under the National Labor Relations Act (NLRA). This decision has raised questions about whether unauthorized workers are entitled to the same remedies for workplace abuse as authorized workers. The US government and worker advocates maintain that the decision is limited strictly to a specific provision of the National Labor Relations Act and does not affect the applicability of other labor laws, but the decision forces lawyers to be cautious in the remedies they seek while also emboldening unscrupulous employers who may feel they have less to lose in mistreating unauthorized workers, including tolerating workplace sexual harassment.

The availability of the U visa—a special non-immigrant visa for victims of certain crimes who cooperate in investigations—provides some relief, but the usefulness of the visa is limited by inconsistent certification of victim cooperation by law enforcement agencies and the unavailability of such visas for most witnesses.

And while police are supposed to vigorously investigate crimes against all victims, regardless of immigration status, the increasing involvement of local police in federal immigration enforcement has fueled immigrants’ fear of the police and their desire to avoid contact with the police, even to report crimes. State governments’ efforts to get involved in immigration enforcement, through laws like Arizona’s SB 1070 or Alabama’s HB 56, have further fueled fears of the police and discouraged reporting of crimes in immigrant communities.

Some employers have also failed to meet their obligation to protect their employees from sexual harassment. Few of the farmworkers we spoke with said they received training on sexual harassment or information on how to report harassment. Where farmworkers did report the abuses to employers, many supervisors and employers ignored their complaints or retaliated against them, including with threats of deportation.

Both international human rights law and US law state that all workers, regardless of immigration status, have the right to protection from sexual harassment and other workplace abuses, as well as the right to redress when such abuses occur. The International Covenant on Civil and Political Rights (ICCPR), ratified by the US in 1992, declares, “Everyone has the right to liberty and security of person.” The ICCPR further prohibits discrimination on “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” US law specifically prohibits workplace sexual harassment as a form of employment discrimination under Title VII of the Civil Rights Act of 1964, and criminal laws prohibiting sexual violence are meant to protect all victims, including unauthorized immigrants. But it is not enough for these laws simply to exist. The ICCPR also requires states parties to “ensure … an effective remedy” when these rights are violated. The Inter-American Commission on Human Rights has similarly found that the American Declaration of the Rights and Duties of Man requires the United States to take due diligence to prevent, punish, and provide remedies for acts of violence, by private parties as well as state actors.

Sexual violence and harassment in the agricultural workplace is a complex problem which should be addressed in a comprehensive way. The US government and agricultural employers should take steps to ensure that farmworkers, including unauthorized farmworkers, are able to access “an effective remedy” and gain meaningful protection under these laws.

[2] The terms “sexual violence” and “sexual harassment” are used in conjunction in this report because neither term alone, as used colloquially, fully captures the nature of abuses described by farmworkers (see Definitions, p. 12).

[3]A 2010 survey of 150 farmworker women in California’s Central Valley found that 80 percent had experienced some form of sexual harassment, while a report by the Southern Poverty Law Center found that a majority of their 150 interviewees had also experienced sexual harassment. Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women,” Violence Against Women, January 2010; Southern Poverty Law Center, “Injustice On Our Plates: Immigrant Women in the U.S. Food Industry,” November 2010, http://www.splcenter.org/get-informed/publications/injustice-on-our-plates (accessed April 7, 2012).

[4] The terms “victim” and “survivor” are used interchangeably in this report.

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

[6] Human Rights Watch interview with Ines R. (pseudonym), California, August 2011.

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

[8] Human Rights Watch interview with Susana J. (pseudonym), California, June 2011.

[9]US Department of Health and Human Services, Centers for Disease Control and Prevention, “National Intimate Partner and Sexual Violence Survey: 2010 Summary Report,” November 2011.

[10]US Department of Justice, Bureau of Justice Statistics, “National Crime Victimization Survey, 2008.”

[11] US Department of Justice, Federal Bureau of Investigation, “Crime in the United States 2010.”

[12] Gary Langer, “One in Four U.S. Women Reports Workplace Harassment,” ABC News, November 15, 2011.