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Best Practices for Migrant Workers -- Cindy O'Hara

BEST PRACTICES FOR MIGRANT WORKERS

University of California at Davis

April 26-28, 2000


Presented by: Cindy O’Hara, Senior Trial Attorney, EEOC


I. What is the EEOC?

The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with the enforcement of the federal laws which prohibit discrimination in employment based on race, color, sex (including sexual harassment and pregnancy), national origin (including language discrimination), religion, age, and disability. The EEOC also protects employees against retaliation for opposing discriminatory practices or participating in its proceedings. The San Francisco District’s jurisdiction includes Northern and Central California, Hawaii, Guam, American Samoa, Wake Island and the Commonwealth of the Northern Mariana Islands.

II. What Statutes Does the EEOC Enforce?

The Equal Employment Opportunity Commission is responsible for the enforcement of key Federal statutes prohibiting discrimination in the workplace:

* Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin or retaliation. This statute also created the EEOC;

* the Age Discrimination in Employment Act of 1967, which protects those age 40 and over from discrimination in the workplace;

* the Equal Pay Act of 1963, which prohibits sex-based wage discrimination between men and women in the same establishment who are performing equal work under similar working conditions;

* Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the Federal sector;

* Title I of the Americans with Disabilities Act of 1990, which prohibits employment discrimination against people with disabilities in the private sector and in state and local governments; and

* those sections of the Civil Rights Act of 1991 amending our statutes.

III. Mission Statement

Our mission is to promote equal opportunity in employment by enforcing

the federal civil rights employment laws through administrative and

judicial actions, and education and technical assistance.

IV. How Does the EEOC Carry out its Mission?

Each of the two mutually supportive components describing our mission, "administrative and judicial actions" and "education and technical assistance," is associated with a wide range of activities designed to promote equal opportunity in employment through the enforcement of the federal laws prohibiting discrimination in employment.

Significant functions associated with administrative and judicial actions enforcing the laws include investigation, adjudication, settlement, and conciliation of charges; resolving claims using other forms of alternative dispute resolution; litigation; and issuing policy guidance.

Education and technical assistance include outreach to employers and employees, as well as to the full array of groups and organizations that represent them. Education and technical assistance activities include seminars, training sessions, technical assistance site visits, speeches, meetings with constituent groups, and information and guidance on employment discrimination issues and law.

V. Three Best Practices That Relate to the Protection of Migrant Workers

1. Education and Outreach

2. Enforcement

3. Litigation

1. Education and Outreach

The EEOC conducts regular Technical Assistance Program (TAPS) seminars with employers to educate them as to their obligations and the rights of their employees under the laws that the EEOC enforces. During the last two years, the San Francisco District Office of the EEOC has held TAPS seminars in Monterey, California; Lake Tahoe, California; Honolulu, Hawaii; and, as this conference takes place, two TAPS seminars are taking place in Saipan, Northern Mariana Islands; and Guam.

In addition to educating employers, the EEOC does extensive outreach to employees through community groups, ethnic organizations, unions, and social service and legal service agencies. In the context of outreach to migrants, this has included conducting outreach programs in conjunction with Lideres Campesinas, the Asian Law Caucus Employment Rights Clinic, California Rural Legal Assistance, Central Coast Citizenship Project, and San Luis Community Center; appearances on Spanish language and other ethnic oriented television and radio talk shows; and production of pamphlets, fliers and easy hand-outs in various languages.

One piece of educational material produced by our office, which has proved quite popular with migrant farmworkers, is a small, business-card-size laminated card, in Spanish, on sexual harassment. The card, in an easy to read format, explains what sexual harassment is, how to document it, and how to contact the EEOC. It’s size and lamination make it easy to carry into the field or factory in a purse or pocket.

Our programs of education and outreach have resulted in a substantial increase in the charges we are receiving from immigrant communities.

2. Enforcement

Our enforcement activities include the taking of charges of discrimination, possible mediation of those charges, the investigation of those charges, an administrative whether discrimination has occurred, and attempted conciliation if discrimination is found.

3. Litigation

The EEOC nationally has a National Enforcement Plan, targeting priorities for litigation, and each District has a Local Enforcement Plan, setting the priorities for the geographical area it covers. In the San Francisco District, an area with a large immigrant and migrant population, service to the Hispanic and Asian ethnic communities, and in particular the immigrant population within those communities, which have been particularly underserved, has received high priority.

At the national EEOC level, one case illustrating EEOC’s enforcement efforts on behalf of immigrant workers is EEOC v. Woodbine Memorial Hospital (D.Mo. – Kansas City, 1999). In Woodbine, which was litigated through the EEOC’s St. Louis District Office, the EEOC alleged that Filipino nurses on H-1 visas were paid less than white U.S. born nurses for doing the same work. The case settled for $2.1 million.

Listed below are some of the cases the San Francisco District Office has litigated on behalf of immigrant and migrant workers.

VI. Enforcement Guidance on Remedies Available to Undocumented Workers


The enforcement of anti-discrimination laws in employment among migrant communities was substantially assisted in October 1999 by the issuance of EEOC’s Enforcement Guidance on Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws (attached hereto, and available on our website at stating that undocumented workers, even if they are without work authorization, are protected by federal anti-discrimination laws and are entitled to substantially all the remedies available to documented workers. This can include, in the case of a lost job, reinstatement; in the case of failure to hire, instatement; back pay; compensatory damages for pain and suffering; punitive damages; injunctive relief; and attorneys fees.

Differences in remedial relief occur in the areas of instatement or reinstatement as a remedy: if the employee does not have work authorization and cannot produce it within a reasonable period of time, the employer is not required to employ or reemploy the worker. Back pay and reinstatement remedies may also be limited in "mixed motive" cases, where the employer terminated the worker for both a discriminatory reason, and a legal reason, i.e. lack of work authorization; and in "after acquired evidence" situations, where, after a worker’s termination, the employer asserts that it has since learned information which would have caused the employer not to hire or continue employment of the worker, i.e. no work authorization.

VII. Case Study: Tanimura and Antle


A successful example of the San Francisco District Office of EEOC’s enforcement efforts with migrant workers is EEOC v. Tanimura & Antle, Inc. (Northern District of California Civil Action No. C99-20088 JW), a sexual harassment and retaliation case under Title VII, which resulted in an award of $1.855 million.

Defendant Tanimura & Antle is a major vegetable grower, primarily lettuce, with business operations in California and Arizona. It’s work force of approximately 2500 employees migrates from Salinas, California (south of San Jose) (May-October); to Huron, California (Central Valley) (November); to Yuma, Arizona (by California and Mexican borders) (December to March); back to Huron (March-April); and then back to Salinas, for lettuce production; and back and forth between Salinas and Oxnard, California (northwest of Los Angeles) for celery production. The charging parties in the case were Blanca Alfaro, an immigrant from El Salvador, who alleged she was subjected to serious sexual harassment by her supervisors, and that after she complained to the company she was terminated as a result; and her boyfriend, Elias Aragon, a Guatemalan immigrant, who alleged that he was terminated as a result of supporting Ms. Alfaro in her complaint to the company.

The development that made possible the Tanimura & Antle case began long before Ms. Alfaro and Mr. Aragon’s filed their charges with the EEOC. The San Francisco District Office of the EEOC had been conducting a series of meetings with community groups throughout our district seeking out information on the most pressing employment discrimination problems recognized by the community. And, in meeting after meeting, sexual harassment of farmworker women was identified as a major issue. Farmworker women were vulnerable on a number of bases, not only as women, but as low wage earners, usually immigrant from Mexico or Central America, often lacking in English language skills and of marginally literacy in Spanish, and often undocumented. Fear of retaliation for protesting sexual harassment encompassed not only fear of loss of employment, but of deportation as well. As a governmental agency, litigating in its own name, the EEOC could pursue litigation that these women well could not pursue on their own.

The groundwork laid for our sexual harassment litigation effort for farmworker women also consisted of training sessions with California Rural Legal Assistance (CRLA), California’s legal aid services for farmworkers. The benefit of EEOC’s training of CRLA attorneys, paralegals and outreach workers in how to recognize sexual harassment and how to counsel clients concerning it, returned to the EEOC when Ms. Alfaro went to CRLA to complain of sexual harassment and retaliation, and CRLA staff prepared her discrimination charge and brought it to us.

The EEOC’s investigation into the sexual harassment and retaliation charges brought to us uncovered additional Tanimura & Antle employees asserting sexual harassment and retaliation. In addition, the San Francisco District Office continued to do training and outreach in agricultural areas, working with farmworker support groups such as Lideres Campesinas, Central Coast Citizenship Project, San Luis Community Center, and National Center for Farmworker Health; after such outreach programs, additional workers would contact us with their complaints.

Following a probable cause finding by the San Francisco District Office of EEOC that Ms. Alfaro had suffered sexual harassment, and that Ms. Alfaro and Mr. Aragon had suffered retaliation, and that other employees of Tanimura & Antle had also suffered these violations of Title VII, settlement negotiations ensued, resulting, on February 9, 1999, in the simultaneous filing of a Complaint and Consent Decree.

The Consent Decree provides total damages of $1.855 million, to be divided among original charging parties Blanca Alfaro, Elias Aragon and a settlement fund for other Tanimura & Antle employees or applicants for employment, who could submit claims to the EEOC showing that they too had suffered sexual harassment and/or retaliation for opposing sexual harassment or supporting someone who did, during the time period of September 25, 1994 (three years before the discrimination charges were filed) and February 9, 1999 (when the decree was entered). Injunctive relief in the decree includes regular sexual harassment training; an overhaul of the sexual harassment policies and complaint procedures, and distribution to all employees; disciplinary action against the harassers; and oversight and monitoring by the EEOC for the three year duration of the Consent Decree.

The San Francisco District Office of the EEOC learned a number of valuable lessons in this case relating to migrants, and we are still learning as the claims procedure continues. We learned the importance of getting telephone numbers addresses of friend and relatives of claimants, as the nature of migrant work can make keeping in contact with claimants a real challenge; the importance of radio as a means of publicizing the complaint procedure, as during the growing season many work long hours and do not have a chance to watch television or read the newspaper, but listen to the radio at work; and the importance of a presence in the community, to reassure that help will be available in case of retaliation. Our contact and training with local service agencies proved invaluable, as these organizations were established in the community and already had the trust of the migrant workers. Finally, we learned the importance of footwork and persistence in these cases, where often our only instructions on finding a potential claimant were "in the blue apartments, number 6 or 8, I’m not sure, behind the library, near the fruit stand," and, where often the first response to our questions was, because of fear, "nothing happened to me."

Despite the problems, the San Francisco District Office of the EEOC also learned that enforcing federal anti-discrimination in employment rights for the migrant population is deeply necessary, and deeply rewarding. The successful settlement we obtained in this case has served as a strong deterrent to other agricultural employers, who are now much more inclined to settle such cases short of litigation.

VIII. Other Representative Litigation for Migrant and Immigrant Workers from the San Francisco District Office

EEOC . Micro Pacific Development dba Saipan Grand Hotel (D.N.M.I.) (Saipan, Commonwealth of Northern Mariana Islands) , EEOC alleges retaliation on behalf of a Filipino contract worker who was terminated for protesting an HIV testing policy and the posting of test results in the hotel. (Filed February 2000)

EEOC v. Northwest Airlines (N.D.Cal.), EEOC alleges national origin/retaliation harassment on behalf of a Filipino employee, including slurs, threats, hangman’s noose in locker. (Filed January 2000)

EEOC v. Golden Valley Produce, Wm. Bolthouse Farms (E.D.Cal.) (Bakersfield, California) EEOC alleges sexual harassment/retaliation of two Latina farmworker women and similarly situated women at a carrot processing and packing company. (Filed January 2000)

EEOC v. Tanimura & Antle (N.D. Cal.) (Salinas, California) EEOC alleged that a Salvadoran immigrant farmworker woman suffered sexual harassment/retaliation, her Guatemalan boyfriend suffered retaliation, and other workers suffered sexual harassment and retaliation. (Settled for $1.855 million and 3 year consent decree, 1999)

EEOC v. DJ International dba Moods & Music (D.N.M.I.) (Saipan, CNMI) EEOC alleged that 7 waitresses, Filipina contract workers, suffered sexual harassment/retaliation by nightclub. (Judgment: $350,000, 1999)

EEOC v. Fresh West Harvesting (N.D. Cal.) (Gonzalez, California), EEOC alleged sexual harassment/retaliation of two Latina farmworker women, and similarly situated women at broccoli harvesting labor contractor. (Settled for $90,000 distributed to four women and 2.5 year consent decree, 1999)

EEOC v. Vencor dba Fifth Avenue Convalescent Hospital (N.D.Cal.) (San Rafael, California) EEOC alleged that convalescent hospital had an English-only policy that constituted national origin discrimination against Latino and other employees. (Settled for $52,500 distributed to seven employees, policy removed, 1999)

EEOC v. Sako Corporation (2 cases) (D.N.M.I.) (Saipan, CNMI), EEOC alleges company denied medical benefits on the basis of pregnancy to Chines and Filipina contract garment workers, and retaliated against one when she assisted with charge filing. (Filed 1999)