OPINION

Opinion: Discriminatory conditions plaguing Hispanic employees need more exposure

CARLSBAD, CA - APRIL 28:  A Hispanic farmworker harvests Ranunculus bulbs at the Flower Fields April 28, 2006 in Carlsbad, California. The debate in Washington continues over whether to create a temporary guest-worker program for immigrants wishing to find work in the United States.  (Photo by Sandy Huffaker/Getty Images)

CARLSBAD, CA - APRIL 28: A Hispanic farmworker harvests Ranunculus bulbs at the Flower Fields April 28, 2006 in Carlsbad, California. The debate in Washington continues over whether to create a temporary guest-worker program for immigrants wishing to find work in the United States. (Photo by Sandy Huffaker/Getty Images)  (Getty)

Latino voters are playing a more significant role in electoral politics. Articles far and wide describe how 2016 presidential candidates are “wooing” Latinos to vote for them. When such focus is trained on the Latino community, it is surprising how little time is spent exposing the discriminatory conditions plaguing Hispanic employees across the country. The starkest example is the plight of Hispanic farmworkers.

The EEOC is not litigating enough charges of discrimination generally, and specifically charges related to Hispanic farmworkers.

- R. Scott Oswald

Hispanic farmworkers are vulnerable in many respects: language barriers; housing controlled by employers; immigration status; fear of law enforcement; poverty-level wages; lack of formal education; transportation controlled by employers; unfamiliarity with legal system; and others.

When these risk factors making them vulnerable are piled onto each other, the result is a decreased likelihood of reporting discrimination—such as disproportionately low wages, demotions, nonpromotions, and discipline—because many Hispanic farmworkers do not know they can report. Alternatively, many fear losing their job or fear of deportation paralyzes them.

To its credit, the Equal Employment Opportunity Commission (EEOC) has stated an admirable intention in its Strategic Enforcement Plan (SEP) for Fiscal Years 2013-2016 with an enforcement priority of “Protecting Immigrant, Migrant and Other Vulnerable Workers.” This priority, of course, extends beyond Hispanic farmworkers, but the most recent data has 76 percent of farmworkers identifying as Latino/Hispanic with 70 percent reporting Spanish as the most comfortable language for communication. Estimates for the number of farmworkers range from 1 million to 2.5 million. Truly, Hispanic farmworkers are the largest population of vulnerable workers in the country.

Against this backdrop it is arresting how little the EEOC is doing to help the Latino community. It has not been idle in alleviating the condition of farmworkers generally. For example, the EEOC took up the cause of 500 Thai farmworkers at Hawaiian farms, obtaining a $2.4 million settlement for them in 2014 and filed suit based on sexual harassment for farmworkers in Jefferson, ME.

Since 2013, the EEOC has made some efforts with positive results for some Hispanic employees generally, albeit without a focus on farmworkers:

  • $250,000 settlement for Hispanic employees being routinely paid less than non-Hispanic employees at a large Japanese market in Edgewater, NJ.
  • $360,000 consent decree for ten discrimination victims where Hispanic janitors were fired for national origin reasons and subjected to harassment and discriminatory work conditions in Orland Park, IL.
  • $450,000 consent decree provided to 18 employees were company subjected Hispanic and Asian/Pacific Islander warehouse workers to a restrictive language policy and racist slurs and name-calling.
  • Suit brought against a metal and plastic products manufacturer in Green Bay, WI for firing a group of Hmong and Hispanic employees because of their national origin and an “English only” rule.
  • $295,000 settlement for Hispanic employee at Wells Fargo & Company who was directed not to speak Spanish during her non-duty time.
  • $14.5 million settlement with $12.3 million set aside for discrimination victims  (African-Americans, Native Americans, Hispanics or Latinos, Asian-Americans, and biracial people) who were employed by a multistate oil drilling company and assigned to lowest level jobs, not trained, not promoted, disciplined, and demoted disproportionately. 

It is strange then that the EEOC’s enforcement in the area of farmworkers generally and Hispanic employees generally have not intersected to the benefit of Hispanic farmworkers. What makes this even more striking is that 58 percent of Latino farmworkers report that discrimination is a problem in the workplace. With such a significant number of farmworkers witnessing discrimination, the EEOC’s glacial pace will not even leave a dent in unlawful employment practices.

The EEOC’s pace is consistent with general trends at the EEOC. For example, it is trending downward the number of suits filed and resolutions obtained. For example, it hit a high water mark with 341 Title VII suits filed in 1999 but filed only 76 in 2014. Similarly, it resolved 315 Title VII suits in 2000 but only 87 in 2014. Meanwhile, total charges of discrimination have not dipped but increased from 79,896 in 2000 to 88,778 in 2014. The same trend applies on the granular level to Race and National Origin Charges, that is, there has been an increase in both since 2000.

The simple conclusion is that the EEOC is not litigating enough charges of discrimination generally, and specifically charges related to Hispanic farmworkers. It has made a slow start to achieve the goals it set out in its own SEP for 2013-2016, but 2016 is fast approaching and there is much work left to be done to benefit the most vulnerable and populous workers in the country—Hispanic and Latino farmworkers.

The presidential campaign is an opportunity for Hispanic and Latinos to shed light on the issues that matter to them as they are courted by politicians on the left and right of the political spectrum. One issue should be on the radar: How will the next president ensure the EEOC fulfills its obligation to stand up for vulnerable and disadvantaged Hispanic farmworkers?

Mr. Oswald, a graduate of The Trial Lawyers College, is an accomplished trial lawyer in whistleblower protection, qui tam, wrongful discharge, employment discrimination, FMLA, USERRA, non-compete, and wage and overtime actions in federal and state courts and numerous settlements exceeding $1,000,000.

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