Immigrant Status Discrimination

We have written before about the EEOC’s announced intent, as per its Strategic Enforcement Plan (“SEP”), to protect “vulnerable” workers.  We said on June 5, 2014: “‘The most vulnerable workers’ — this is a part of the EEOC’s strategic plan for enforcement.  Protecting them, that is, as we noted before – think farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.”

We wrote about such a case as recently as August 20th.

A new suit filed by the EEOC demonstrates this continued EEOC targeting.

The suit charges that a Maine farm and produce wholesaler maintained a sexually hostile work environment for female farmworkers for many years, with these workers being “groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers.”

farm workers : Female farmer works with manure at field, holding agricultural tools Stock Photo

Despite repeated complaints by the workers, the employer took no action to address the hostile work environment – with one employee ultimately being forced to leave.

Takeaway:  Taken verbatim from the EEOC’s press announcement:

“The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.”

 

Sounding like our old friends at the EEOC,  the New York Attorney General just announced a settlement with  five New York City employment agencies relating to, among other things, allegations that the agencies “targeted Spanish-speaking job seekers, unlawfully steered them away from certain jobs and unlawfully referred them to jobs paying as little as $3.75 per hour.”

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Said AG Eric Schneiderman (above), “Employment discrimination against vulnerable populations is an increasing and disturbing trend, and we need to do everything we can to protect job applicants across our state. These agreements will send a strong message: Employment discrimination and exploitation of job seekers — including among our hard-working immigrant communities — are unacceptable.”

“We will continue to fight for a level playing field for New York workers and our law-abiding businesses.”

Takeaway:  We all spend so much time focussing on EEOC claims and lawsuits that we sometimes forget that there are state and local anti-discrimination laws, and state and local officials and agencies which scrutinize our actions.  Beware these other authorities!

The EEOC just announced the commencement of a new national origin lawsuit against a Green Bay manufacturer for allegedly firing Hmong and Hispanic employees “based on 10-minute observations that marked them down for their English skills, even though those skills were not needed to perform their jobs.  All of those fired had received satisfactory ratings on their annual performance evaluations. …”

Title VII protects employees from discrimination based on national origin, as we know, and the EEOC says that this includes the linguistic characteristics of a national origin group.   “English only” as a rule or policy would fall within this Title VII prescription if not job-related, although we do not often see cases like this filed.

The EEOC, however, said that such a lingusitic rule often masks national origin discrimination:

“Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

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It was a little disturbing and confusing to us that the EEOC jumped the gun in announcing a settlement in the Hawaiian farm labor case and was dealt a blow by the Court, which denied the EEOC’s consent decrees — at least for now.

Charles A. Krugel, a Chicago employment attorney who established and runs a great LinkedIn group, “Charles Krugel’s Labor & Employment Law & Human Resources Practices Group,”  noted on LinkedIn after the EEOC released the news that it had settled the matter:

“I appreciate what the EEOC did in this case & support them.  However, I question whether the $2.4 million, which will be distributed among the employers & their staffing company (& maybe their insurance companies) really sends a message to “white slavers” & sweatshop owners.

It appears that this case is the 1st lawsuit filed & settled by the EEOC on a large class scale, regarding “vulnerable” workers, but is it an early step to something larger or just a nuisance settlement by the employers?”

After we posted our Alert! that the Court had denied the EEOC’s consent decrees in this matter, and asked “Why did the EEOC prematurely announce the settlement?  We tried to access the link to the EEOC’s earlier press release about the purported settlement but it was apparently taken down,” Charles wrote:

Unfortunately, the EEOC has a history of issuing press releases with false & misleading information.   This is just another in a long history.    Sadly, this time they jeopardize the settlement of a troubling case of “white slavery” & sweatshop like workplace & further damage their credibility (emphasis added).”

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We just posted an Alert! that the EEOC’s big press release (and wide press coverage) stating that is had settled the case of the Hawaiian farm workers was a tad premature — the consent decree was denied by the Court because the EEOC failed to follow proper procedure.   And the Court even threatened sanctions!

Carol Dawson, President at EEO GUIDANCE, Inc., Louisville, KY area, had this to say:

“Too bad the settlement is currently derailed because the EEOC officials decided they could side-step the court orders.

After spending years on the federal side of government, I know there are federal officials who believe they are above following instructions/directives by the court (or pretty much anyone).   Never smart …  I hope the EEOC can get this back on track quickly.”

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“The most vulnerable workers” — this is a part of the EEOC’s strategic plan for enforcement.  Protecting them, that is, as we noted before — think farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.  (It also appears to be on the radar elswehere, as our similar recent blog about 55 African tree planters having just settled a similar case in British Columbia indicates).

In this regard, the EEOC has just announced a settlement with a group of Hawaiian farms for allegedly harassing and mistreating Thai farmworkers who had been “retained” by a labor contractor.

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EEOC’s Strategic Enforcement Plan (“SEP)

On November 20, 2013 we posted that ”For quite awhile we have reported about the EEOC’s targets as set forth in its Strategic Enforcement Plan (“SEP”), and noted that “vulnerable worker” abuse and religious discrimination were in the cross-hairs.”

On October 8, 2013 we wrote:

“Last year we discussed a number of cases brought by the EEOC against employers relating to harassment of farmworkers — the most vulnerable workers, according to the EEOC’s strategic enforcement plan. We quoted the EEOC general counsel in relation to the settlement of an ‘appalling’ sexual harassment suit: ‘It is one of the EEOC’s national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse.’”

Lawsuit/Judgment For Thai Workers In Hawaii

The EEOC filed suit in April 2011 against a labor contractor and a number of Hawaiian farms, as alleged joint employers, alleging harassment of Thai workers such as physical assaults, humiliation, and allegedly threatening to shoot, deport or imprison them.   The EEOC said that Thai farm workers who were brought into the U.S. to work under the H2-A visa program were subject to “high recruitment fees [which] created a great debt for the Thai workers who faced abuses on the farms such as slapping, punching, humiliation, heavy surveillance and threats of being shot, deported or arrested.”

A federal judge in March found the farm labor contractor liable for a pattern and practice of national origin and race discrimination, harassment and retaliation against the farm workers.   The Court held that the labor contractor “subjected the Claimants to physical and verbal harassment based on Claimants’ race and/or national origin in order to secure the Claimants’ compliance and obedience and based upon stereotypical beliefs about Thai workers. … [discriminatory] disparate treatment of Thai workers was [the labor contractor’s] standard operating procedure.”

The Court also found that “the Thai workers were often paid less, made to work less desirable and more demeaning jobs and denied breaks, yet worked longer hours than non-Thai farm workers. Food, housing and living conditions were also deplorable for the Thai workers.”

The EEOC commented then that “Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). These policies can include disparate pay, job segregation, harassment and human trafficking (emphasis added) .”

A trial on the measure of damages assessed and the injunctive relief to be imposed was set for this coming November.

Settlement Just Announced With Hawaiian Farms

This week the EEOC announced that it had settled the case with four of the Hawaiian farms for an aggregate of $2.4 million.    The EEOC General Counsel said that “This resolution reflects the commission’s redoubled effort to challenge discriminatory practices against the most vulnerable workers, who often live and work in the shadows of the economy (emphasis added).”

Now all that’s left is the November trial on damages against the farm labor contractor.

 

For quite awhile we have reported about the EEOC’s targets as set forth in its Strategic Enforcement Plan (“SEP), and noted that “vulnerable worker” abuse and religious discrimination were in the cross-hairs.  Two new settlements emphasize this.

18936794_sThe EEOC has reported that it has settled a religious discrimination case for $100,000 filed against an Albuquerque hotel on behalf of a Muslim housekeeper who was fired when she refused to remove her religious head scarf.   An EEOC attorney said that “Religious discrimination continues to be a high priority for the EEOC, and we take this issue very seriously.”

We know (see some recent posts of ours).

“Employers should be aware that they have a duty to provide reasonable accommodation to employees’ religious beliefs and practices,” said another EEOC attorney.

Got it.

In a second case, the EEOC announced that Del Monte will pay $1.2 million to settle a 2011 suit against six farms and a California-based labor contractor who were alleged to have subjected 150 Thai farm workers to uninhabitable housing, insufficient food, low wages and deportation threats.

The EEOC took pains to note that not only was it targeting agricultural employers, but also “labor contractors,” who provide migrant farm labor to these farm employers: “This is sort of a chronic issue that we’ve seen where they try to hide behind labor contractors even though things happen on their land,”  said an EEOC lawyer.

In this regard, besides the monetary settlement, the company has agreed to “institute comprehensive protocols and accountability measures to ensure that all farm labor contractors that work with [it] comply with federal laws against discrimination and retaliation. This is the first effort of its kind for a farm to ensure farm labor contractor accountability for federal anti-discrimination laws.”

Moreover, in line with the EEOC’s express intention to protect vulnerable workers, the company has agreed to “partner” with the EEOC “to champion and ensure equal employment rights and opportunities by setting an example for the U.S. farming industry.”  Said the EEOC’s GC:  “We are hopeful that this resolution will provide a model for the agricultural industry to ensure that farm contractors comply with anti-discrimination laws.”

“We hope this is wake-up call for others in the agricultural industry to follow Del Monte Fresh Produce’s lead in recognizing signs of potential abuses by farm labor contractors and taking proactive steps to hold them accountable.”

Thus sayeth the EEOC.

The EEOC conducted a public meeting yesterday on national origin employment discrimination.  Noting the diversity in the US workplace (including language diversity), and the increase of immigrants in the workforce, the panelists discussed “various recruitment and hiring issues; discriminatory treatment in assignments; pay discrimination; language and accent issues; effective communication and access issues; harassment; and retaliation.”  Panelists included attorneys for Mexican American and Asian American advocacy groups and attorneys for employee and employer groups. 17320260_s

We have noted many times that the EEOC is already targeting with lawsuits employers who discriminate and allow harassment of “vulnerable workers,” such as migrant farm workers, and this was underscored yesterday.

EEOC Commissioner Jenny R. Yang said that “National origin discrimination — whether it takes the form of harassment against farm workers, segregation of Vietnamese workers in lower-paying factory jobs, or not hiring a qualified applicant from Iran because she didn’t conform to a retailer’s preferred image — should be tackled through coordinated enforcement, outreach, and training efforts.”

An EEOC press release commented that the testimony of the Deputy Director of The National Employment Law Project (NELP) described national origin discrimination as “different from other forms of discrimination because it involves not only a person’s place of birth or origin of ancestors, but also cultural or linguistic characteristics.”  Moreover, retaliation against such employees may include the “devastating” use of the “deportation card” – “when individuals are threatened with deportation or examination of their immigration status as a threat to keep them from complaining about discrimination.”

One panelist on behalf of Mexican-Americans described a common complaint of bilingualism creating workplace segregation.  The subject of English-only policies led to a request that the EEOC create clear guidelines, and a management attorney complained that “my clients have a hard time understanding why people who are capable of speaking English, who are bilingual, should have the right to do so, to speak their own language in the worklace.”

The EEOC release said that an Ogletree management attorney described “The multi-cultural workplace [which] presents challenges for employers. … Cultural norms in an employee’s background may make it difficult for a man to accept supervision from a woman for example. [He] cited the need for extensive education about both rights and responsibilities under the law. He suggested that the EEOC develop training modules in a variety of languages as well as a model anti-harassment policy, and make them available on its website for employers to download.”

Employers beware:  we predict a slew of new suits in this area.

See the panelists’ statements, biographies and a transcript of the meeting at:  www.eeoc.gov/eeoc/meetings/index.cfm.

 

This guest post is authored by Alka Bahal.  Alka is a Partner and Co-Chair of Fox’s Corporate Immigration Practice and contributes to Fox’s Immigration View blog.  She can be reached at abahal@foxrothschild.com or 973.994.7800.


As you have probably already heard, on Wednesday, June 26, 2013 the Supreme Court ruled that the Defense of Marriage Act (“DOMA”) is unconstitutional, which means that same-sex couples who are legally married in any jurisdiction that permits same-sex marriage can now apply for marriage-based immigration benefits. Accordingly, U.S. Citizens and legal permanent residents can now sponsor their foreign-born spouses for green cards and visas, as long as their marriage is recognized by the state or foreign jurisdiction where they married.

Some also believe that the striking down of DOMA will likely have a positive impact on the passing of the new immigration bill, S. 744.  The several attempts to include an amendment to the bill favorable to married homosexual couples were highly contested and considered an impediment to the bill’s passage.

“This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” Secretary of Homeland Security Janet Napolitano said in a statement Wednesday. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

14173521_sAt the annual American Immigration Lawyer’s Conference in San Francisco yesterday, U.S. Citizenship and Immigration Services Director Alejandro Mayorkas indicated that not only would USCIS comply with Secretary Napolitano’s directive to immediately implement the Supreme Court’s Decision, but that his office has maintained a list of all I-130 applications (U.S. Citizen/LPR sponsorship of a spouse for permanent residency) denied under DOMA, which will be put back into process and approved.

It’s a new era in immigration law – to be further invigorated by the vote on S. 744.  Stay tuned!

Joining the EEOC’s Denver and Detroit Field Offices (see our blog of December 3, 2012), the New Orleans Field Office has just announced that it has entered into a Memorandum of Understanding ("MOU") with the Consulate of Mexico to assist Mexican workers in the US in the area of employment discrimination.

 

These “MOU’s” will establish a collaboration that will involve the EEOC providing the Consulate and Mexican nationals with Spanish-language materials explaining the federal anti-discrimination laws, information regarding workplace discrimination on Spanish-language radio stations, and information, guidance, and access to resources on the prevention of discrimination in the workplace regardless of immigration status.

 

"A Memorandum of Understanding promotes employment justice and allows us to continue current practices which are in place," said an EEOC attorney.  

 

Under the terms of the MOU, the EEOC will expand its cooperation with the Mexican Consulate, providing it with Spanish-language materials explaining the laws enforced by the EEOC.  The agency will also provide representatives to meet with Mexican nationals in Louisiana in order to disseminate information and conduct counseling regarding employment discrimination matters.