(C) Daily Yonder - Keep it Rural
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Cultivating Fear [1]
['Grace Meng']
Date: 2012-05-15
Patricia M.’s Story Patricia M. was 21 years old when she first came to the United States from Mexico about six years ago. Like most immigrant farmworkers in the US, Patricia did not have a work visa, but she was able to get work. About four years ago, she got a job harvesting almonds. The foreman would pick workers up and then drop them off at the end of the day at a local gas station. She said he repeatedly offered her food and drink, which “bothered [her] a lot,” because she felt he was not offering these things innocently. He insinuated that he could help her, saying, “Listen to me, I’m the foreman, and you’ll have a job.” On the third day, he dropped off all the workers at the gas station except her. He told the rest of the workers he was going to pick up the water cooler, but instead, he took Patricia to a remote field. “From there, he didn’t say anything, he just stared at me. I was wearing a hat and a bandanna [that covered my face], and he said, ‘What do you have there? An animal?’ And I knew he wanted to do something to me.” Patricia described him as “fat, very big.” She reported that he got on top of her and tied her hands with her bandanna to the hand grip above the truck door. Then, she said, “He took off my clothes and he raped me…. He hurt me badly.” Patricia did not tell anyone. She said, “I felt very sad and very alone.” She had no family in the US, and she did not want to tell her family in Mexico what had happened. After the rape, Patricia continued to work at the same farm. She could not leave the job because there was no other work available. The abuse continued. “He kept raping me and I let him because I didn’t want him to hit me. I didn’t want to feel pain.” Eventually, Patricia found out she was pregnant. She heard that she could apply for disability benefits and went to a social service agency where the employees asked her whether she had a partner. That question prompted her to tell them everything, and the agency helped her file a police report. Patricia credits the agency for providing crucial support. She still has not told her family in Mexico what happened. Although she told her mother she was pregnant, she didn’t tell her about the rape, “because I don’t want her to be sick.” Without the counselors at the agency, she knows she would never have filed the police report: “I was afraid they would put me in jail; I was afraid [they’d] send me to Mexico because I was illegal.” Patricia stated that the foreman was not prosecuted and sentenced for the crime. Instead, after arresting him, the police seem to have contacted immigration authorities, as he was soon deported. Unfortunately, this does not mean he is completely out of Patricia’s life. She has heard reports from his family that he is planning to come back to the US and see the child. The rape continues to affect her in other ways as well. Patricia is now married, and her daughter is “so beautiful,” despite the painful memories of how she became pregnant. Yet she reports, “Sometimes, I remember and I can’t be intimate with my husband.” She also worries because, “I don’t know what to tell my daughter when she gets older.” [1]
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.
Key Recommendations
To the United States Congress
Pass the Senate version of the Violence Against Women Act (VAWA) reauthorization bill (S. 1925) or similar legislation that strengthens the U visa and other protection for immigrant victims of sexual violence, including farmworker women and girls.
Enact immigration legislation that would reduce the incidence of serious abuses of immigrant workers’ rights, including reform of the existing agricultural guestworker program and enactment of a program of earned legalization for unauthorized farmworkers already in the US.
Enact legislation to ensure equality of remedies for all workers who suffer workplace violations or seek to enforce workers’ rights, regardless of immigration status, and thereby rectify the Supreme Court’s decision in Hoffman Plastic.
Eliminate the exclusion of farmworkers from important labor protections like the National Labor Relations Act and the Fair Labor Standards Act.
To the US Department of Homeland Security
Repeal programs such as Secure Communities which require or encourage local police to enforce federal immigration laws.
Screen immigrants arrested in enforcement actions for eligibility for U and T visas and ensure that appropriate prosecutorial discretion policies, as outlined in Immigration and Customs Enforcement memoranda, are applied to them.
To the US Department of Labor and the Occupational Safety and Health Administration (OSHA)
Increase agricultural workplace inspections and the civil and criminal penalties imposed on employers, within the limits allowed by law, to improve their compliance with relevant laws.
To All State Governments
Ensure that state laws fill gaps in federal labor protections for agricultural workers and provide alternatives to federal avenues for seeking redress for sexual harassment and other workplace abuses.
To Local Law Enforcement Agencies
Take all necessary and appropriate steps to assure immigrant communities that unauthorized immigrants who report crimes will not be reported to immigration authorities.
To Agricultural Employers
Create and enforce clear workplace policies prohibiting sexual violence and harassment, and create accessible channels by which employees can safely report violations.
Investigate every reported instance of sexual violence or harassment and take prompt corrective action to remedy the problem.
Methodology
This report is based primarily on 160 in-person and telephone interviews conducted by a Human Rights Watch researcher with farmworkers, attorneys, members of the agricultural industry, service providers, law enforcement officials, and other experts in California, New York, North Carolina, Florida, Texas, Colorado, Ohio, Arizona, Pennsylvania, Tennessee, and the state of Washington, from March to August 2011.
We spent the longest time in California because it has the largest number of farmworkers—both authorized and unauthorized—in the United States, as well as a large number of farm labor contractors.
Human Rights Watch also reviewed press reports, reports by nongovernmental organizations, and public records of civil litigation involving allegations of sexual harassment in agricultural workplaces, identified primarily through a search of news and legal databases and through consultations with legal service providers representing farmworkers.
We interviewed 50 workers with experience in the agriculture industry, one with experience in poultry processing, and one with experience in both agriculture and poultry processing, or 52 workers in total. The interviewees included 47 women (including several who described experiences they had as girls), two girls under 18, and 3 men. Their experiences included working with a wide range of crops in both fields and packing houses. The crops included fruit (table grapes, oranges, strawberries, figs, blueberries, apples, cherries, and melons), vegetables (tomatoes, cauliflower, broccoli, lettuce, spinach, mixed greens, asparagus, garlic, onions, green beans, sweet potatoes, hot peppers, bell peppers, cucumbers, and cabbage), nuts (pistachios and almonds), and non-food products like cotton and tobacco.
We identified most interviewees with the assistance of rural legal service organizations, sexual assault survivor advocates, and other social service and advocacy organizations serving farmworkers. These interviewees are likely less isolated and less vulnerable on average than those who have no contact with such organizations. Given the sensitive nature of the subject and individuals’ fears about their employment and immigration status, many organizations reported knowing or having met victims who were not (or would not be) willing to be interviewed by Human Rights Watch. About 25 interviewees were referred to Human Rights Watch as having been survivors of sexual violence and/or sexual harassment. The majority of the remaining interviewees were not known by the referring agencies to be victims, but were women who had consented to being interviewed by us about their experiences as female farmworkers. Although both male and female farmworkers can be victims of sexual violence and sexual harassment, this report focuses on women and girls, for whom the prevalence of abuses is reportedly higher.
In addition to farmworkers, we interviewed lawyers representing farmworkers in sexual harassment cases, sexual assault survivor advocates, union representatives, social service providers, growers, agricultural industry representatives, regulatory agency staff, and local law enforcement officials in several localities. In total, as noted above, we interviewed more than 160 people.
Most interviews with farmworkers were conducted in Spanish, with the assistance of an interpreter. Some interviews were conducted in English or a mixture of English and Spanish, at the preference of the interviewee. Some individuals interviewed in Spanish were also native speakers of indigenous languages.
Most of the farmworker interviews were done individually, except in a few cases where interviewees preferred to speak in small groups. All but two of the 52 interviews were conducted in person in the interviewees’ homes, in agency offices, or in other settings where the interviewee felt private and secure; the remaining two were done by telephone. Interviews ranged from 10 to 90 minutes in length. All participants were informed of the purpose of the interview and consented orally. Care was taken not to re-traumatize any survivors of sexual violence and harassment, and all interviewees were advised that they could decline to answer questions or terminate the interview at any time. Where appropriate, Human Rights Watch provided contact information for organizations offering legal, counseling, or social services.
No interviewee received compensation for providing information. Two individuals were reimbursed for expenses incurred in traveling to the interview location.
Given the sensitive nature of the topic and unauthorized legal status of many interviewees, Human Rights Watch assured all farmworker interviewees that their identities would remain confidential. Therefore, all farmworkers’ names have been replaced with pseudonyms, and identifying details, such as the precise date and location of interview, have been withheld.
Definitions
Sexual Violence and Sexual Harassment
Sexual violence and sexual harassment are used in conjunction in this report for several reasons, the most important being that neither term alone, as used colloquially, fully captures the nature of abuses described by farmworkers.
Sexual violence is defined by the Centers for Disease Control and Prevention, an agency within the US Department of Health and Human Services, as “any sexual act that is perpetrated against someone’s will,” including rape, attempted rape, abusive sexual contact (such as unwanted touching), and non-contact sexual abuse (such as threatened sexual violence, exhibitionism, and verbal sexual harassment).[13]
Sexual harassment, as defined by the Equal Employment Opportunity Commission, a US agency charged with enforcing federal anti-discrimination laws in the workplace, can include unwelcome sexual advances, requests for sexual favors, and other verbal and physical harassment of a sexual nature, as well as rape and attempted rape. Under US law, workplace harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision. The harasser need not be the victim’s supervisor, but may also be a co-worker or customer.[14]
Most of the incidents described by farmworkers interviewed by Human Rights Watch qualify under these definitions as both workplace sexual violence and sexual harassment. Given this fact and the sometimes narrow colloquial understanding of these terms, both terms are used throughout the report to accurately impart the significance of these abuses.
It is not within the scope of this report, however, to make legal determinations as to whether specific incidents described by interviewees would constitute actionable claims under US law. We gave the farmworkers we interviewed the opportunity to raise any and all concerns they had about workplace sexual harassment and did not limit our interviews solely to instances of sexual harassment that would form the basis for a lawsuit.
Farmworker
Although the type of work most commonly associated with agriculture is planting and harvesting crops, agricultural labor includes a much broader range of tasks, including packing, canning, and working in tree farms and nurseries. Under the Fair Labor Standards Act (FLSA), “‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities …, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”[15] The workers interviewed in this report have experience working in a wide range of these tasks.
As noted in the methodology section above, two testimonies come from workers with experiences in poultry processing and some of the secondary accounts and published cases discuss sexual violence and sexual harassment in meat production and dairy and egg production workplaces. These were included because the immigrant workers in these environments face similar challenges to those faced by workers in forms of employment more commonly labeled “agricultural.”
Unauthorized Immigrant
This report uses the term “unauthorized” to describe individuals in the United States who lack authorization to live and work in the US. Some in this group came to the US with a visa but stayed past their visa expiration date or otherwise violated the terms of admission. Others came to the US without a visa. Some in this latter group have filed papers seeking legal status but are waiting, and likely will have to wait for years more, to obtain it due to the limited availability of immigrant visas. The term “unauthorized,” rather than “undocumented” or “illegal,” best captures the diversity of situations in this population.
I. Background
Immigrant Farmworkers: A Vulnerable Workforce
There are an estimated 1.4 million crop workers in the United States, with an additional 429,000 livestock workers.[16]
The vast majority of farmworkers in the United States are believed to be foreign-born. According to the National Agricultural Workers Survey (NAWS), which surveys crop workers, about 72 percent of farmworkers in 2007-2009 reported they were foreign-born; 68 percent reported they were born in Mexico.[17] Although most are Latino, there are other immigrant groups as well; one sexual harassment lawsuit filed by the Equal Employment Opportunity Commission against a Florida vegetable and fruit wholesale was brought on behalf of five Haitian women.[18]
The proportion of farmworkers who are unauthorized is close to 50 percent and has held steady at that number since 2001.[19] Many believe the percentage of unauthorized workers may be even higher, as the methodology used by the NAWS relies on employers who agree to allow their workers to be interviewed.[20] Manuel Cunha, president of the Nisei Farmers League, a major growers association, believes 90 percent of farmworkers in California have questionable documents and that across the nation, 75 to 80 percent are unauthorized.[21]
Not included in the NAWS are about 68,000 foreign-born farmworkers who have work authorization under the H-2A temporary foreign agricultural worker program, a very small portion of the entire agricultural workforce.[22] But these workers’ visas are tied to their employers, and the worker is entirely dependent upon his or her employer for permission to remain in the United States. Thus, their work authorization provides little protection from abuse and retaliation.[23]
The native language of the vast majority of farmworkers is Spanish, and only 30 percent report speaking English “well.”[24] Most have had little formal education; the average highest grade completed is eighth grade.[25]
According to the NAWS 2009-2010 data, about 24 percent of farmworkers are estimated to be female.[26] About three percent are under 18 and many of these children are girls.[27] Some women work with their husbands, but others are single mothers who, unable to support their children in their home countries, migrated to the US in search of work.
Women face particular difficulties in farm work. They are vulnerable to sexual violence and harassment and other forms of gender discrimination, and they face the significant challenge of taking care of children while working in an industry in which benefits like sick leave and paid vacation are extremely rare. Analysis of NAWS data from 2004-2006 by the Southern Poverty Law Center found that the average personal yearly income of female crop workers was $11,250, significantly lower than the average income of $16,250 for male crop workers.[28] The Indigenous Community Survey, while cautioning that its sample size was small, found that indigenous farmworker women work in worse conditions and earn lower wages than indigenous farmworker men.[29]
Among the fastest growing populations of farmworkers in California, and possibly the US in general, are migrants from indigenous communities in Mexico and Central America. A 2010 study of indigenous farmworkers in California identified 23 different languages spoken by these workers, the most common being Zapoteco, Mixteco, and Triqui.[30] These workers frequently speak little or no Spanish, which isolates them even further from government and community services.[31] It is difficult to quantify exactly how many farmworkers are indigenous, as it is believed many report Spanish as their native language in their responses on the NAWS survey regardless of their actual mother tongue, but 15 percent reported being indigenous on the 2007-2009 NAWS.[32]
In California, researchers estimate that 20 percent of farmworkers, or approximately 128,000 farmworkers, may be indigenous.[33] Indigenous workers tend to be younger, more recently arrived, and poorer than other immigrant farmworkers, with less education and less English-speaking ability. They are frequently discriminated against in their home country, and continue to suffer discrimination at the hands of non-indigenous or mestizo immigrants when they come to the US. Social service agencies are often unaware that these workers speak a different language and have a different cultural background than other Latino immigrants. Thus, indigenous workers face additional barriers to reporting abuses and violations.[34]
Farmworkers’ vulnerability is exacerbated by low wages and poverty. National surveys of farmworker wages represent mainly skilled and permanent employees and often exclude workers who are unauthorized or paid by contractors.[35] Even so, the reported annual incomes are very low. Average annual income for crop workers from 2007-2009 ranged from $15,000 to $17,499; average total family income ranged from $17,500 to $19,999.[36]
Farmworkers are paid an hourly or daily wage or a piece rate. When a worker is paid a piece rate, the day’s wages are calculated based on how many containers of fruit or vegetables are picked or packed. With some exceptions, however, the workers must be paid at least the minimum wage. As found in a previous Human Rights Watch study of child labor in US agriculture, Fields of Peril, however, workers who are paid a piece rate are often under extreme pressure not to take breaks, whether to go to the bathroom, drink water, or stand up from stressful, stooped positions.[37] The report also found that workers who are paid a piece rate who do not pick enough to meet the minimum wage are often not paid the difference as required by law.[38] For this report, a woman in North Carolina reported she had just worked an eight or nine-hour day and been paid only $34, well below North Carolina’s minimum wage of $7.25 per hour.[39]
Should farmworkers lose their jobs, only 39 percent are eligible for unemployment insurance; should workers lose their jobs because of injury, less than 50 percent are eligible for workers’ compensation. Unauthorized workers are not eligible for unemployment insurance even when their employers pay into the system. Twenty-one percent live in housing supplied by the employer, meaning the loss of a job would also result in loss of housing.[40] Farmworkers simply cannot afford to lose their jobs, and they often have few options for other employment if farm work is not available.
In keeping with national trends, immigrant farmworkers increasingly have lived in the US for long periods of time and live in “mixed status” families, where some members are US citizens or have work authorization while others are unauthorized. In 2007-2009, 55 percent of foreign born-workers reported having been in the US for at least 10 years; 29 percent reported having been in the US for more than 20 years. In 1992-1994, only three percent of all farmworkers were in mixed status families, but by 2007-2009, that number had increased to 12 percent.[41] This is significant, as some advocates told Human Rights Watch that the fear of separation from US citizen family due to deportation was a significant factor in farmworkers’ reluctance to report sexual violence and other abuses.[42]
Structure of Agricultural Work
Seasonal and Temporary Work
Some farms employ full-time workers year-round, but most farm work is by nature temporary and seasonal, which creates working conditions that are very different from those experienced by workers in most other industries. Because it is so difficult to find stable, year-round work, farmworkers have a strong interest in keeping the jobs they have.[43]
Most farmworkers, often called “settled” farmworkers, live and work in the same area year-round, such as in California, where the growing season is longer. Others are classified as “migrants,” defined in the NAWS as those who travel at least 75 miles within a 12-month period to obtain a job. Some “shuttle” between the US and a foreign country to work each year, while others migrate within the US for work; for example, workers Human Rights Watch met in North Carolina had also worked in New Jersey, Michigan, and Florida. Newcomers to the US are most likely to be migrant workers,[44] and as migrants, they are less likely to know about the communities in which they live temporarily and to have access to social services.
Farm Labor Contractors
Farmworkers may be employed directly by growers or by farm labor contractors, who recruit and hire workers for multiple growers. Although the NAWS indicates that only 12 percent of farmworkers were employed nationwide by a contractor in 2007-2009,[45] the use of contractors varies significantly by state. One study using NAWS data from 2003-2004 found that while 18 percent were employed by contractors nationwide, 37 percent were employed by contractors in California.[46] Although farm labor contractors are required to be licensed by the US Department of Labor and are regulated by the Migrant Seasonal Agricultural Worker Protection Act, there are many small, unlicensed contractors operating outside of the regulatory framework.[47]
Growers may choose to use a contractor for a variety of reasons. Contractors are often second-generation or long-term immigrants who speak better English as well as Spanish and are better able to communicate with workers than growers are. Some farms that employ a small, year-round workforce find it convenient to use a contractor for the few months each season when they need more workers. And given the increase in the use of contractors after the enactment of the Immigration Reform and Control Act of 1986 (IRCA), there is evidence that some farmers seek to avoid IRCA-related paperwork and sanctions on employers for hiring unauthorized workers.[48] One farmer told Human Rights Watch that one reason he uses a contractor to hire his seasonal workforce is that some of his most valued employees are unauthorized, and he hopes using a contractor for new hires will help reduce the likelihood of an audit of his permanent workforce.[49]
The increase in the use of contractors is significant for several reasons. Contract workers tend to be paid less than directly-hired workers and are unemployed for longer periods during the year.[50] A study focusing on indigenous farmworkers found that contract workers receive the same wages but are more commonly mistreated, such as through charges or overcharges for equipment, food, rides, and other services by foremen.[51] Although not all contractors violate labor laws, farmworker advocates have raised particular concerns about farm labor contractors, in part because some of the most egregious and well-publicized incidents of violations in an agricultural setting have involved contractors.[52]
The role of contractors perhaps most warrants scrutiny because when violations occur under contractors, growers often argue that they should not be held liable because the contractors, not they, are the workers’ employers.[53] Many farmworker advocates believe that some growers take advantage of the grower-contractor relationship to distance themselves from abusive working conditions and wages set by some contractors.
Swanton Berry Farm, a major organic strawberry producer in California, does not use contractors because the owners believe the primary motivation for using a contractor is “externalizing the risk of being an employer,” and “that’s not something we’re interested in.”[54] Other farmers echoed similar concerns and stated that when they do employ a contractor, they either work with a contractor they know and trust or ensure that the workers under the contractor receive the same training as their own permanent employees.[55]
One farmworker who has worked in North Carolina, Georgia, and Florida expressed strongly her belief that growers who directly employ workers and do not rely on contractors often feel more responsibility for the workers’ working conditions:
Right now, we’re working directly for a grower and it’s very different…. He knows us personally…. When we went to work on Friday, he asked for a meeting with all of us. He said he wanted a job well done, work slow, that he didn’t want anyone to get sick. He said it’s going to be really hot, wants to make sure there’s water, let women use the bathroom, water on both sides…. He explained to us, if there’s lightning, don’t wait for him to say so, just note the time and go home. With a contractor, you just keep working. [56]
Although some farm labor contractors are large companies with millions of dollars in annual sales and hundreds of employees,[57] many are small, mom-and-pop operations with limited assets, which can affect the damages available to workers seeking remedies. If certain conditions are met, such as grower involvement in training or supervision of workers, workers can argue that the grower should be considered a joint employer. As a grower association representative noted, “A grower cannot interfere with a contractor’s business because if anything goes wrong, then there’ll be joint liability,” illustrating the incentive for growers to distance themselves from contactor-run farm operations.[58]
Supervisors and Others in Positions of Power
Even growers who do not use contractors to find workers frequently relinquish oversight and responsibility to employees such as supervisors and foremen (frequently called crewleaders or mayordomo). The foreman may, in addition to recruiting and hiring workers, also help find housing, provide transportation to work (usually for a fee), and help newcomers adjust to life in the US. A foreman can have significant authority because he informs workers which fields they should report to and is typically responsible for determining pay.
Some contractors charge employees for transportation, food, and/or housing, either charging them directly or deducting these expenses from their paychecks, reducing their already meager pay. Those who are newcomers and more vulnerable tend to feel obligated to pay for a service like a ride from a raitero, a worker who provides transportation to the worksite.[59] Because many farmworkers do not have cars or other ways to get to work, the raitero has the power to take someone to work and to determine the conditions of transportation.
A punchadora is the person who is assigned the task of counting containers, boxes, or buckets for those who are paid by piece rate. Although it is not a supervisory position, it can be a coveted position because the work is somewhat less strenuous. Because the punchadora’s actions set wages for the day, it can also be a position of power.
II. Types of Workplace Sexual Violence and Sexual Harassment Experienced by Farmworkers
For a woman alone, there is much danger…. A man can catch you in the fields where the plants are taller than you.
—Rosario E. (pseudonym), North Carolina farmworker, July 2011.
Nearly every worker interviewed by Human Rights Watch reported that they had either personally experienced some form of workplace sexual violence or harassment or personally knew someone who had experienced it. Our research confirms what farmworker advocates across the country believe: sexual violence and sexual harassment experienced by farmworkers is common enough that some farmworker women see these abuses as an unavoidable condition of agricultural work.
As one rural legal aid lawyer put it, sexual harassment is a “recurring, day in and day out, significant problem for women farmworkers…. It’s not a made-up issue, it’s real.”[60] A 2010 survey of 150 farmworker women in California’s Central Valley found that 80 percent had experienced some form of sexual harassment,[61] while a report by the Southern Poverty Law Center found that a majority of their 150 interviewees had also experienced sexual harassment.[62] In 1995 the Equal Employment Opportunity Commission (EEOC), the federal agency in charge of enforcing anti-discrimination laws, began specifically conducting education and outreach on sexual harassment of farmworkers. This initiative followed a meeting in which farmworkers and advocates told the agency that sexual assault and harassment were serious problems, with one worker referring to one company’s field as the “field de calzon,” or “field of panties,” because of the number of rapes that had occurred there.[63]
As described below, farmworkers reported experiencing a wide range of unwanted sexual violence and harassment.
Rape and Other Forms of Coercive Sexual Conduct
Rape and other forms of coercive sexual conduct are the most egregious forms of sexual violence and harassment experienced by farmworkers. Several women interviewed by Human Rights Watch reported they had been raped by a supervisor or co-worker.
Angela G.’s Story Angela G., like most farmworkers, came to the US about 12 to 13 years ago for “a better life.” What she found, however, was that to survive in the US she had to work “from sun-up to sun-down.” When she first began cutting and packing lettuce, the pain in her hands was excruciating, but she managed to continue and has worked in lettuce for the past 12 years. In her experience, women in general were not valued by the supervisors and the foremen, but Angela reported that because she did not have a partner, she was singled out for abuse. “I was called a dyke; they said I was a lesbian…. [The supervisor] and the foreman would laugh.” She was afraid to say anything because others who had complained of sexual harassment had been fired immediately. But to listen in silence day after day caused her a great deal of pain: “There was no one to help me…. When I got home, all I could do was cry. And then I had to wake up the next morning and go to work [to survive].” “All the supervisors were the same…. Even in those cases [where a supervisor was different], if they heard something, they just stayed quiet.” Angela stayed on, however, because she wanted to get promoted, earn a higher salary, and be better able to support her family. And then one day, a supervisor asked her to come over to his house to pick up some boxes. Angela reported that after she entered the house, he raped her. Angela said she felt powerless: “For me, it felt like an eternity. I wanted to scream but I couldn’t. Afterward, he said I should remember that it’s because of him that I have this job, and if I say anything, I’ll lose my job…. I was afraid to call the police, to do anything. I didn’t know what to do. My mind was completely blocked off.” Angela explained that she withdrew into herself and became deeply depressed: “When someone lays a hand on you, you feel like you can’t go on.” With no family near her other than her daughter, she said she would talk “in silence” to her deceased father, which “allowed me to release a lot of what I was feeling.” But she reported that the perpetrator continued to threaten her on a daily basis, even telling other co-workers what he had done, to show that he was in control. Angela came to feel that even if she lost her job, she had to do something. “I didn’t have any willpower to continue with my life, but to think this could happen to someone else, that’s when I realized I had no other options [but to report it].” She first reported the rape to the company, but when nothing happened, she spoke with a lawyer, who helped her file a sexual harassment claim against the company. Angela’s ordeal, however, did not end there. Her immigration status was another serious factor, as she was deported in the middle of her lawsuit, and she wondered if her employer had reported her to immigration. She felt everybody in her small community knew what had happened and were talking about her. She sought therapy, but found that it was too expensive and to go to a session would require her to miss work and lose even more income. Although free care was available in her area, the wait list was very long. Yet Angela found support from her attorney, and she began to feel she could regain some of what she had lost. In Angela’s experience, companies fail to comply with laws that are meant to protect workers. She described how she has seen management at one workplace call a meeting and pass a piece of paper for the workers to sign, even though the workers had no idea what the meeting was about or what the paper said. They were then told that if anyone asked if they received any training, they were supposed to say, “Yes.” For Angela, it is important that her experience help other workers: “My goal is that all their eyes are open to all the abuses.”[64]
Farmworkers who had not been raped were well aware of the risk. A male farmworker who picks cabbages in New York said a female co-worker had told him in 2009 that the “American bosses” had approached her for sexual favors, and that she had accepted for fear of being fired.[65] Teresa G., a woman in North Carolina who works in tobacco, said that in 2011 a supervisor told two of her co-workers they had to have sex with him in order to get the job. When Teresa found one of the women crying, she asked why she had done it, and she replied, “My husband doesn’t have work. I don’t have work.” Teresa confronted the supervisor and told him, “You’re a fucking pig,” but he simply smiled.[66]
Rape was similarly reported to farmworker advocates in Texas, California, Arizona, and Florida. Several of the sexual harassment lawsuits brought by the Equal Employment Opportunity Commission have alleged rape as well as other forms of workplace harassment. In EEOC v. Harris Farms—a landmark case because it was the first and thus far only farmworker sexual harassment case to go to a jury trial—Olivia Tamayo, a Mexican immigrant who had worked for more than 15 years at Harris Farms, one of the largest agribusinesses in the country, won a damages award of almost $1 million in 2005 after testifying that her supervisor forcibly raped her several times, sometimes at knife or gun point.[67] Other suits alleging sexual assault have involved a tree farm in Oregon[68] and an egg farm in Iowa.[69]
In many cases, moreover, relationships that appear consensual may be the product of psychological coercion or desperate economic circumstances. Veronica Z., a woman who has worked with onions and cotton in California, explained why she ended up in a sexual relationship with her supervisor:
My son broke a leg riding a bike when someone ran him over. I arrived at work late, and the foreman fired me. I returned to work because [the perpetrator] was able to get me a job, only because we had relations. I needed the job for my children. [70]
Although they were not in a relationship, she reported that he continued to coerce her to have sexual relations with him for years. Veronica said when she tried to end it, he threatened her with a gun and began harassing her at work. When she eventually filed a lawsuit against the company he worked for, the company argued that she had been in a consensual relationship with him.[71]
A farmworker advocate in North Carolina stated bluntly, “It has to do with survival—nothing to do with free will or choice. I’ve seen 50-year-old men with 16-year-old girls who refuse to complain or discuss the relationship.”[72] A counselor at a domestic violence and sexual assault crisis center in Fresno, California, agreed that vulnerable women often end up in relationships with perpetrators of the abuse, especially if they get pregnant: “You’re having a child, you build a relationship with the perpetrator…, you’re getting financial support. [It] becomes normal to them.”[73]
Unwanted Touching, Verbal Abuse, and Exhibitionism
The forms of sexual violence and harassment most commonly reported to Human Rights Watch were unwanted touching, verbal abuse, and exhibitionism.
Many women described how supervisors and co-workers with more workplace authority than they have would aggressively ask them out on dates. Juliana T. reported that when she was working in lettuce three years ago with her boyfriend, the foreman would say to her, “Leave your boyfriend because I have papers.” Although she never accepted, he repeatedly invited her to restaurants and casinos, asking almost three to four times a week, to the point that she “didn’t know what to say or do. I was scared.”[74] Some women were openly propositioned. Monica V., who has worked in North Carolina and New York, described how when she was working in tobacco, the contractor would offer her a ride, more hours, and more money in exchange for sex.[75] Mercedes Lorduy, an attorney with VIDA Legal Assistance in Florida, reported that one of her clients was stalked by a nursery owner to the point that she had to get a restraining order against him.[76]
Several women reported that supervisors would touch them as they stooped or bent over to plant or harvest crops. Mercedes A., for example, who picked potatoes and onions two years ago in New York, said her supervisor would touch women’s bottoms and breasts as they worked.[77]
Women also reported verbal harassment and gestures that were obscene and humiliating:
Bianca H. described working for years with men who would touch themselves, simulate sex with each other, and make comments like, “Last night, I dreamed about you; if you only knew how I dreamed about you! How many things I did to you!” [78]
Claudia L. , while working in grapes last year, reported she had a supervisor who made obscene and vulgar statements. “One time, my zipper was down, and he told me to zip it because he could see my vagina and he would want it if he saw it.” Although she tried to ignore him, she was frightened when he saw her working alone, ahead of the others. “He said there were coyotes who would eat me, but he said, ‘I’m going to eat you instead.’” [79]
, while working in grapes last year, reported she had a supervisor who made obscene and vulgar statements. “One time, my zipper was down, and he told me to zip it because he could see my vagina and he would want it if he saw it.” Although she tried to ignore him, she was frightened when he saw her working alone, ahead of the others. “He said there were coyotes who would eat me, but he said, ‘I’m going to eat you instead.’” Four women who worked together in a cauliflower packing house from the end of 2010 to the beginning of 2011 reported being abused by a supervisor who every day shouted things like, “Women, move your hands like you fuck!” “You guys are fucking all day! You idiots!” “This is dick! You guys are worth a piece of dick!” [80] Ana D. remembered, “He was all powerful. He’d say, ‘Nobody does shit to me! Everybody can suck my dick!’…. He would say to the men [because I don’t have a husband], ‘Ana needs to be fucked!’” [81] Women were not the only ones who had to suffer his abuse, as he would also take his penis out of his pants and shake it at all of his workers. [82]
Unwanted touching, stalking, and verbal harassment exist on a spectrum with sexual assault. Cindy Marroquin at the California Coalition Against Sexual Assault (CALCASA) explained, “Many times it’s a progression; it’s not that they’re assaulted just one time. Usually it starts with verbal comments or verbal threats, what they would consider providing a compliment … just putting [the victims] in a place to say, ‘I could do this to you if I wanted to.’”[83] Patricia M. (whose story begins this report) reported she was verbally harassed before she was raped,[84] and Victoria Mesa, an attorney with Florida Rural Legal Services, reported that one of her clients endured constant harassment by her supervisor who tried to touch her, made lewd remarks, and showed his penis to her before he eventually raped her.[85] An EEOC lawsuit against Willamette Tree Wholesale alleged that the same supervisor who sexually assaulted one woman also harassed her sister with graphic sexual comments, propositions, and groping.[86]
Long-Term Harassment
For farmworkers, sexual violence and harassment are not generally limited to a single isolated incident. Harassment often lasts for months, even years, and perpetrators often victimize multiple workers, regardless of whether complaints are made to company management.
Bianca H. reported that she packed spring mix and spinach for a greens company that did nothing to stop men from making obscene comments and gestures, despite complaints from Bianca and her female co-workers. She worked in this environment 12 hours a day over a seven-month season, day in and day out, for four years. Bianca cried as she remembered: “I felt horrible. Every day, you feel they are just using you…. It makes you feel like you’re worth nothing.”[87]
Marcela V. reported that she had been a forewoman for 11 years where “[e]very season, there were women who complained to me, sometimes two or three women.”[88] Although she made complaints, nothing ever happened. Eventually she and Veronica Z., who was directly harassed, filed a lawsuit alleging sexual harassment and retaliation after they lost their jobs in 2005. During the hearing, she was devastated to discover for the first time that her adult daughter had also been harassed. “We were just machines doing the work for them because they didn’t even take us seriously.”[89]
Lorena U. reported that in September 2010, she was propositioned for sex by a supervisor at a garlic farm. She consulted with a caseworker at a local agency for domestic violence survivors, who advised her to report the incident to the owner of the farm. According to Lorena, the owner said several people had complained about this supervisor, but he had never believed them.[90] The caseworker told Human Rights Watch that three different women had separately reported problems with this particular supervisor.[91]
Many of the sexual harassment lawsuits brought by the EEOC on behalf of agricultural workers have been brought on behalf of multiple survivors, often as a class action. In recent years, the EEOC has brought sexual harassment lawsuits involving multiple plaintiffs against:
Evans Fruit in Washington State, on behalf of three individuals and a class of women; [92]
Cyma Orchids in California, on behalf of four women; [93]
in California, on behalf of four women; Spud Seller in Colorado, on behalf of several female employees; [94]
in Colorado, on behalf of several female employees; Willamette Tree Wholesale in Oregon, on behalf of two female employees and two male relatives, also employees, on charges of severe sexual harassment and retaliation; [95]
Holiday Specialtrees in Oregon, on behalf of two male victims of same-sex harassment and racial discrimination; [96]
in Oregon, on behalf of two male victims of same-sex harassment and racial discrimination; Knouse Foods in Pennsylvania, on behalf of a class of female employees who suffered harassment on the basis of sex and national origin; [97]
in Pennsylvania, on behalf of a class of female employees who suffered harassment on the basis of sex and national origin; DiMare , a large tomato farm in Florida, on behalf of at least three female employees. [98]
Four of the companies have settled with the EEOC—Cyma Orchids, Willamette Tree, Holiday Specialtree, and Knouse Foods—and in their settlement agreements agreed to broad, company-wide changes including one or more of the following: new policies and procedures to address unlawful discrimination, new trainings for managers, supervisors, and employees, and EEOC monitoring.[99] The other cases remain pending.
III. Unique Vulnerabilities
The foreman is the law.
— Santiago I. (pseudonym), California farmworker, June 2011.
Immigrant women and girls in agricultural work face unique vulnerabilities to sexual violence and harassment. Contractors, supervisors, foremen, growers, and others with connections and authority wield tremendous power. William Tamayo, a regional attorney at the EEOC who has litigated several farmworker sexual harassment cases, described a pattern he has seen repeatedly in the cases on which he has worked:
The owners of the major farms tend to be white, English speaking longtime family members who turn over operations of the farm to “Jose,” a longtime employee who is bilingual and who is expected to maintain the operations and keep labor problems to a minimum—you know, “out of sight, out of mind.” The workers are geographically isolated from community services, have few options in life and are in desperate poverty. They are dependent on Jose to navigate the English-speaking world for them. If Jose is a predator and/or his supervisors below him are predators, it is the ideal situation for sexual harassment to occur—unfettered, unpunished, and unstopped. [100]
Although anyone can be a victim, members of some groups may be more vulnerable than others. Unauthorized workers are particularly likely to be fearful of reporting abuses, and girls and young women, single women, and indigenous workers are particularly likely to be targeted, as well as unlikely to report inappropriate sexual speech or conduct.
Sexual Relations as a Supervisor’s “Perk”
Several farmworkers, including those who had worked as supervisors and foremen, told Human Rights Watch that some supervisors and foremen view the possibility of sexual relations with workers simply “as a perk of the job.”[101] Roberta C., a young woman who had done farm work as a teenager, reported that her father had recently been promoted to foreman and her mother was extremely anxious because she could not help but wonder, “If that’s what foremen do, is that what he’s going to do, too?”[102] This idea of access to sex as a perk of the job was echoed by farmworker advocates.[103] Juanita Ontiveros, a long-time community advocate with California Rural Legal Assistance Foundation, reported that the “perk” is considered more likely when there is less work available and more competition for jobs: “[Women] are approached even by crewleaders, anybody who has a little bit of control or power … who say, ‘I can get you a better job, I can get you in if you put out.’”[104]
The idea that workers who agree to a sexual relationship with the foreman or supervisor get preferential treatment is so widely held that some workers believe that whenever a woman is being treated better than others—for example, being assigned less strenuous or better paying work—she must be providing something in exchange.[105] A poultry processing worker who suffered sexual harassment and then retaliation while working from 2005 to 2007 recounted:
[Another woman is] splitting up with her husband because the same supervisor [who harassed me] caused problems…. She received a promotion. People think she did something. They [assume] when he retaliates, it’s because they won’t let him [have sexual relations]. When he promotes someone, they [assume] she said yes. [106]
Some perpetrators are co-workers without formal supervisory power. Some, however, have connections to the contractor or foreman that may make them feel invincible. Maria A., for example, believed the man who raped her was close friends with the contractor,[107] while 16-year-old Ana I. was verbally harassed by the contractor’s son in the summer of 2009.[108] Sexual harassment by co-workers also occurs in environments where such behavior by supervisors is openly tolerated.[109]
Girls and Young Women
Hundreds of thousands of children under 18 work in agriculture in the United States, at far younger ages, for longer hours, and under more hazardous conditions than all other working children.[110] They are among the least likely to be able to “defend” themselves from sexual violence and harassment because “they don’t quite know what’s going on, they don’t know how to deal with it,” an attorney familiar with sexual harassment cases explained.[111] Despite the particular risks of sexual harassment in agriculture—including isolation in the fields—for young teenage girls, agriculture is often the only available work. While the minimum age for work in other industries is 16, with a few exceptions, there is no minimum age for children working on small farms as long as they have their parents’ permission, and once they are 14, they can work on any farm even without their parents’ permission.[112]
Young women, many of whom are recent arrivals to the US, are also at risk for similar reasons. An attorney who has worked on many sexual harassment cases involving farmworkers observed, “There’s no hard and fast rule, but frequently [women who report are] older, in their late 30’s and 40’s, [who] are more sure of their rights…. A lot of younger women never make it into the office.”[113]
Several farmworkers who are teenagers or who had worked as teenagers told Human Rights Watch they experienced or witnessed harassment and said those most at risk included not only children but those working alone, without their parents.[114] One 19-year-old woman, who had started working in tobacco when she was 14, remembered her mother was always extremely protective—“[She] never left us alone,”[115]—while another who had worked from when she was in eighth grade until she started college (from about 13 to 18 years old) said she “would just cling to [her] parents,” believing “[i]t’s going to be okay as long as I’m close to them.”[116]
Paz B., an 18-year-old who has been doing farm work since she was 16, first came to the US with her sisters. But since her sisters were deported, she has been forced to work alone with a contractor who says things like, “This woman has a good ass. What she needs is a good man,” and who tells other co-workers that Paz would “sleep with any guy.”[117] There can be added pressure for girls and young women who are struggling to keep up with other workers. If a young female worker is not able to finish her row as quickly as others, her parents can help her, but if she is working alone with no family to “back [her] up,” she may be told, either implicitly or explicitly, that if she has a relationship with the foreman, “it would be okay if she were a little behind [in her work].”[118]
Girls and young women working with family members are not immune from predation, as perpetrators can take steps to separate them from their protectors. Cristina N. was a little over 18 when she was raped 12 years ago by a supervisor, who took her to a garden to separate her from her mother.[119] A farmworker advocate in Texas reported that, in one case, a contractor sent a young woman’s mother to another field so the contractor could have unhindered access to her daughter.[120] Similarly, one of the farmworkers in the EEOC lawsuit against Evans Fruit, a major Washington apple grower, described in the EEOC’s press release “how the ranch manager refused to let her work on the same crew as her 15-year-old daughter, who he then targeted with unwelcome verbal and physical sexual attention.”[121]
Girls and young women working with their families must also deal with the risk that, should they reject advances, they may be risking not only their own jobs, but also those of their family members. Ana I., a 16-year-old girl in North Carolina whose case is mentioned above, told us she was working in tobacco two years earlier when the contractor’s son began to try to hold her hand and talk to her. When she rebuffed his advances, she, her mother, and her mother’s boyfriend were all fired. She was devastated: “Because of that, we couldn’t pay our rent or light bill or anything. It was terrible. I thought if I had never said no, we wouldn’t have ended up like this.”[122] Community workers at Centro Binacional para el Desarollo Indigena Oaxaqueno (CBDIO), a California-based organization, described the case of a young Oaxacan girl, 15 or 16 years old, who had been raped by her foreman. They said the girl did not tell anyone because she was afraid he would fire her father, who was working with her. She eventually told her family only when she got pregnant, went to the hospital to give birth, and was questioned because she was a minor.[123]
Recent Immigrants
Abusers recognize that young women who have just arrived in the US and who “don’t know many things” are particularly vulnerable.[124] A sexual assault survivor advocate in Fresno described a case in which the man who raped and impregnated her client was known to prey on the “new girls.”[125] Natalia B. said she was 20 years old and had just arrived in the US with a work visa in 2010, when she found herself the target of sexual harassment at a cauliflower packing house. The supervisor was abusive to everyone in the workplace, but she reported he had targeted her, touching her and asking her almost every day, “Are you going to give me booty, yes or no?” Although Natalia was good friends with some older women at work—who ultimately defended her and were fired along with her—she was only able to tell them about the full extent of the abuse when they were no longer working at the packing house.[126]
Single Women
Although women now make up about 24 percent of the agricultural workforce in the US, they are still a minority in an overwhelmingly male industry. While many work with their husbands, there are also many single women, particularly single mothers who are desperate to keep jobs to support their children. Several farmworkers, as well as farmworker advocates, agreed that a single woman working in agriculture faced risks that a married woman would not.[127]
Marta L., a migrant farmworker who has worked in several states, including North Carolina, New Jersey, Michigan, and Florida, found that when she worked without her husband at her side, she “heard bad words, they lacked respect for [her].”[128] It was only when her husband came and said, “Be quiet,” that they stopped. She noted that the risks are particularly high for migrant women workers because “there is the question of where she will sleep, bathe, use the bathroom in labor camps.” At one point, when she was separated from her husband and working alone, she found herself in a group of migrants with just one other woman. Marta made sure to share a room with that woman, as she wanted to avoid what had happened to a woman she knew, who was raped when she slept among men in a labor camp in New Jersey.[129]
Angela G., whose rape by a supervisor is discussed above, also suffered verbal harassment from another supervisor who saw she was single and called her a “dyke” and a lesbian every day. She said, “When I got home, all I could do was cry, and then I had to wake up the next morning and go to work for food to eat.”[130] Magdalena C. was similarly singled out for abuse for not having a husband. She explained that the supervisor at the cauliflower packing shed would shout, “Magdalena needs to be fucked.”[131]
Indigenous Workers
Indigenous farmworkers are particularly vulnerable to workplace abuses, including sexual violence and harassment, for a multitude of reasons. They are subject to discrimination in their home countries, then come to the US only to find that non-indigenous or mestizo immigrants continue to discriminate against them. As one farmworker reported, they are mocked for not speaking Spanish well: “They say obscene words to them, and when they don’t understand, they laugh more.”[132] Luz S., an older woman who had worked in agriculture for many years, agreed: “They are treated like they have no value … like they’re not normal people.”[133] She further noted that people who speak Spanish defend themselves, but indigenous people do not.[134] One farmworker, who is herself indigenous but speaks Spanish well, agreed: “People scream at them and they let them. They don’t know how to defend themselves. They stay quiet; they don’t even stop to drink water.”[135] Indigenous women in particular tend to speak little or no Spanish because they are less likely than men to have received much formal education.[136]
Many indigenous workers are from the Oaxaca region, and the discrimination against them extends to stereotypes about Oaxacan women and their sexuality. One male farmworker who has been a supervisor and a foreman casually stated, “All the supervisors and foremen believe that Oaxacan women like men more…. They like it because they don’t say anything about it.”[137]
Several of the most egregious incidents of sexual violence and harassment reported to Human Rights Watch involved indigenous women and girls. The teenage rape survivor assisted by community workers at CBDIO, whose case is described above, was more vulnerable both because of her age and because her primary language is Zapoteco.[138] Ines R., a young farmworker and a member of Lideres Campesinas, a farmworker women advocacy organization, is fluent in Mixteco, and she recounted the story of a young Mixteco farmworker she had tried to help about two years ago. This woman told her she had been raped by a man who then stopped at a gas station. She dialed 911, the only number she knew, but when the police came, they spoke only English and Spanish, and interviewed her with the perpetrator in the same room. Because she was afraid and unable to communicate, she said she had not been raped. She later reported to Ines, “I felt like nothing, nothing, no heart, no feeling.” Ines said, “I read [the police report], and it said they couldn’t do anything because the girl doesn’t know how to speak Spanish.” Ines hoped to help her follow up on the police report, but soon afterward, the young woman left the area.[139]
The largest numbers of indigenous workers are in California, but they can be found all over the US. Victoria Mesa, a legal services lawyer in Florida, reported that one of her clients, a woman from Chiapas, was sexually harassed by a supervisor in a nursery “to the point he almost raped her.” When her client reported the supervisor to management, she was fired.[140] The EEOC recently settled a case against a tree farm in Oregon in which two male workers alleged both same-sex harassment and ethnic harassment due to their identification as Mixtecos, an indigenous group from Oaxaca, Mexico.[141]
The vast majority of indigenous workers, however, are extremely reluctant to report any kind of abuse. Sexual harassment is a particularly sensitive subject and difficult to discuss openly in indigenous communities.[142] Jeff Ponting, an attorney and director of the Indigenous Farmworker Program at California Rural Legal Assistance (CRLA), believes that because indigenous peoples typically have experienced discrimination in their home countries, they distrust governments and authorities even more than other unauthorized workers.[143] Although they are one of the fastest growing farmworker populations, growers, regulatory agencies, and social service agencies have made little effort to acknowledge the particular linguistic and cultural needs of this group. California law, for example, requires trainings to be provided only in Spanish and English, with no requirement that the workers understand. Ponting reports that a California agency only hired its first indigenous outreach worker after concerted advocacy by CRLA.[144] For Ponting, indigenous-focused outreach will pay dividends because the communities are tight-knit and well-organized, and those within the communities who do assert their rights can be “fierce advocates.”[145]
LGBT Workers
The lesbian, gay, bisexual, and transgender (LGBT) farmworker population faces its own particular challenges with regard to both sexual harassment and other forms of discrimination.
CRLA and the National Center for Lesbian Rights discovered there was a serious need for improved legal services for LGBT people in rural California communities and created Proyecto Poderoso (Project Powerful) in 2007.[146] Dan Torres, director of the program, told Human Rights Watch that the anti-LGBT animus is so strong that the comments and actions that create a hostile work environment for LGBT workers can also hurt those who are not
LGBT or even perceived to be LGBT. The stigma also discourages victims from reporting.[147]
Belen F., a transgender woman who said she had experienced discrimination in Mexico and had hoped life in the US would be different, reported she was sexually harassed and her partner was assaulted at an asparagus packing plant in California four or five years ago. Belen had been working at the same packing plant for several years when she was promoted to foreman. She said she then began to hear the owner of the plant calling her “joto or faggot,” and they repeatedly reduced her wages to the point that she was making less than her assistant.[148]
Legal services providers elsewhere in California and in other states also report encountering cases of same-sex sexual harassment, both against workers who identify as LGBT and against those who do not,[149] and at least one EEOC case has involved an allegation of same-sex harassment against two indigenous male workers.[150]
IV. The Lasting Impact of Workplace Sexual Violence and Sexual Harassment
Even after workplace sexual violence or harassment ends, survivors continue to suffer the consequences of the abuses. They may have physical injuries and psychological trauma. The abuses sometimes destroy relationships with family members, particularly husbands and partners. And many farmworkers face significant challenges obtaining necessary medical treatment for their physical injuries and mental trauma. Survivors who report abuses to company management or rebuff advances risk getting fired and experiencing other forms of retaliation, including being reported to immigration authorities.
Physical Injury, Psychological Trauma, Social Ostracism, and Disruption of Family Life
Several survivors of workplace sexual violence and harassment told Human Rights Watch they suffered serious physical and psychological trauma as a result of the abuse:
Maria A. said she was initially scared to report her rape in the summer of 2010, but when she found herself still in pain three months later, she sought medical treatment in a hospital, which then referred her to a social services agency. Now, she said, “I try to be strong…. Sometimes when I am sad, I begin to cry. I ask God not to let this happen to me again and protect me from bad people. I am going to see a doctor because every time I have intercourse with my boyfriend, it hurts and I bleed. I think something was hurt or damaged. [151]
said she was initially scared to report her rape in the summer of 2010, but when she found herself still in pain three months later, she sought medical treatment in a hospital, which then referred her to a social services agency. Now, she said, “I try to be strong…. Sometimes when I am sad, I begin to cry. I ask God not to let this happen to me again and protect me from bad people. I am going to see a doctor because every time I have intercourse with my boyfriend, it hurts and I bleed. I think something was hurt or damaged. Patricia M. (whose story begins this report) reported that she still feels pain resulting from physical assault and rape. She feels lucky to be in a good relationship now, but “sometimes, I remember [being raped] and I can’t be intimate with my husband.” [152]
(whose story begins this report) reported that she still feels pain resulting from physical assault and rape. She feels lucky to be in a good relationship now, but “sometimes, I remember [being raped] and I can’t be intimate with my husband.” Veronica Z., who reported being coerced into a sexual relationship with a supervisor, became deeply depressed, according to her caseworker: “She used to come see me every day, so depressed. She would clench her teeth because of the pressure.” [153]
In an EEOC sexual harassment case against a tree farm, an Oregon federal court ruled that the lawsuit should move forward even though one of the women who alleged rape did not file her claim within the 300-day time limit prescribed by law. The court concluded that the psychological damage suffered by the survivor—including post-traumatic stress disorder, severe depression, suicidal ideation, social isolation, and panic attacks—justified her delay.[154]
Verbal harassment can be debilitating as well. Four years after leaving the job where she was harassed, Lucia A. was brought to tears as she recounted her story. For over 10 years, she said, she endured daily harassment while packing broccoli: “Every time I went to the bathroom, [my supervisor] would make comments about my bottom and say vulgar things…. I feel a lot of pain remembering this.” Although she was interested in talking to a professional therapist, she believed she could not afford it.[155]
Several farmworker survivors of sexual violence and harassment, as well as farmworker advocates, reported to Human Rights Watch that they suffered from adverse community and family reactions to revelations that they had been abused. It is difficult to discuss sexual violence and harassment in any culture, but it can be particularly difficult in communities where it is commonly assumed the victims are at fault. One male farmworker who has been a supervisor and a foreman declared, “Women are to blame for it as well. I see that they are alone, single, not married. I see that they like being told these things.”[156] Farmworker women, such as Carolina M., agreed that “men think it’s our fault; they think you smiled at them; they never believe us.”[157]
Rosana C., a farmworker in New York, reported seeing immediate damage to her relationship with her husband when she became a victim of sexual violence and harassment. She was raped by a co-worker about five years ago, and more recently she has been subject to daily harassment by a co-worker who sends her text messages multiple times a day. Rosana’s pain is exacerbated by her husband’s reaction: “He’s machisto…. He blames me; he thinks I provoked [the rapist]. And now I’m telling him this man is harassing me at this job but [he won’t do] anything to protect me.”[158]
Irma Luna, a community worker at California Rural Legal Assistance, has encountered victims who similarly were blamed by their husbands. “We had a female working in a packing house with her husband in the Arvin/Lamont area. She was harassed by the foreman…. She tried telling her husband; it went pretty ugly. She kind of got discouraged and disappeared.”[159]
Limited Access to Necessary Social Services
Several farmworker survivors of severe workplace sexual harassment and sexual violence reported that they had sought therapy and other mental health services. A few were able to get some counseling and emotional support, but the vast majority were unable to access these often crucial services. Some thought it would be too expensive, not realizing free care was available. Those who were offered free care found that the wait-list was very long or the free care was inadequate.[160] Rosana C. was offered services, but when she tried to call a shelter number, she found no one spoke Spanish.[161]
Many victim advocates agree and say there is a desperate need for more mental health and support services, including transportation to therapy sessions. Spanish-speaking private counselors are extremely rare in rural areas, and even where they exist they are often hours away from the communities that need them.[162] As one attorney stated, “For a woman experiencing trauma, dealing with work and family, to travel two hours to speak with a therapist is not going to happen.”[163]
When free individual counseling is available for undocumented and uninsured workers, it is often limited to survivors of rape who are willing to assist prosecutors or are in need of emergency services. Survivors of less severe forms of sexual violence or harassment, who are not eligible for state-funded victim services, generally cannot access the care that they need.[164]
The experience of the women we spoke with most likely does not convey the full extent of the problem, as they at least made contact at some point with a social service agency. Many farmworker survivors of sexual violence and harassment most likely are never in touch with agencies. Lideres Campesinas, an organization that has been working to improve services for farmworker women throughout California, told Human Rights Watch that the culture of rape crisis centers and hotlines can be “incomprehensible” to farmworkers: “When women call into a number, it asks them to call another number. Or the numbers have letters [in English] like ‘GET HELP.’”[165]
In cases where workers we spoke to did report crimes, they most often did so because social and legal service organizations had conducted extensive outreach until “someone in the community said, ‘Go to them, you can trust these people.’”[166] Such trust typically cannot be gained simply through traditional outreach. For example, agencies serving survivors of domestic violence and sexual assault frequently create support groups for survivors, but these subjects are taboo in many farmworker communities. According to Cindy Marroquin at CALCASA, “what works best is just having groups in general where people get together…. It’s just hanging out with your neighbor, and there’s no specific agenda.”[167] Amparo Yebra, director of an agency with a strong presence in its small Central Valley, California, community concurred, saying their approach is to convene support groups every Friday with speakers on topics as varied as nutrition and budgeting information. Her agency’s clients “stay here for years, even though their problems [are] solved, they still come back if they have a letter in English they don’t understand, with bills…. Anything that they need, they can come into our office.”[168] The Alliance Against Family Violence and Sexual Assault, an agency in Bakersfield that has slowly built support groups in the smaller towns around Bakersfield, noted they “[had] to really pound the pavement,” and consistently convene support meetings, even if no one showed up, in order to build trust.[169]
Developing the capacity to serve farmworkers who do not speak English is obviously a major challenge, particularly in states where there are few bilingual Spanish speakers, let alone speakers of other relevant languages. In upstate New York, a community worker found that when she looked at websites of local agencies, “[they’re] not in Spanish or Haitian Creole; they don’t have advocates or interpreters.”[170]
Although increasing access to therapy and similar services will initially require financial investments—a difficult proposition when government budgets are tight—such services can make a tremendous difference for survivors of sexual violence and harassment. As recounted in the beginning of this report, Patricia M. reported that she first came to an agency because she hoped to file for disability insurance due to her inability to work while pregnant. The workers she met there were the first people who heard what happened to her, and the agency helped her file a report with the police, something she says she could never have done without them. “For a whole year, I came all the time. They gave me the strength to move on with my child.”[171] And greater outreach and prevention services may ultimately reduce the economic costs associated with sexual violence.[172]
Termination and Other Forms of Retaliation
Many of the cases described to Human Rights Watch involved victims who were fired, either for reporting abuse or for rebuffing advances. Monica V., for example, said she was propositioned repeatedly by a contractor when she was working in tobacco. When she said no, “I want to earn my money with the sweat of my brow,” he would not allow her to take bathroom breaks or even short breaks to stand up from stooping. When she was in so much pain that she had to stand up and rest, “he said there was no job for me.”[173] For Natalia B., refusing her supervisor’s advances eventually led to termination, she reported, not just for her, but also for her co-workers and friends who tried to defend her. The harassment intensified until one day, she broke down and began to cry. Her co-worker Ana D. comforted her and told the supervisor, “You’ve gone overboard.” He responded, “Anyone who doesn’t like it, get the fuck out of here.” He fired Natalia, Ana, and two other co-workers who had defended her.[174]
Many farmworkers work with other family members, and termination not only threatens the livelihood of one person, but of the entire household. As previously recounted, Ana I., a 16-year-old working in tobacco in North Carolina, reported she was fired twice, along with her mother and her mother’s partner, for refusing advances.[175] Similarly, Sergio Guzman, Secretary-Treasurer at United Farm Workers, recounted meeting a young woman from Oaxaca who cried as she told him the foreman was repeatedly asking her to have sex with him, and she did not know what to do because the last time she had refused advances, the supervisor had fired her entire family, so that five people were left without income.[176] Several EEOC lawsuits have involved families where one person was alleged to have been targeted for sexual harassment, but the entire family was retaliated against when he or she reported it.[177]
Termination as retaliation is often challenging to prove because farm work is seasonal. In some cases, a farmworker is not terminated right away but simply is not rehired the following season when work starts again. Lucia A. reported she had been working for about 17 years at the same company packing broccoli and cauliflower during the season, normally from November to March, when she finally decided to report harassment she had been enduring for over 10 years. The next November, she was not rehired.[178] Marcela V. similarly reported she had been a forewoman at an onion packing plant for 11 years when she tried to help Veronica Z. report ongoing sexual harassment to company management. Both women were not rehired the following season.[179]
Many farmworkers live in employer-provided housing, and unlawful termination for reporting harassment can also lead to unlawful eviction and loss of shelter. The sexual harassment lawsuit against Giumarra Vineyards, one of the largest grape growers in the country, includes allegations that after a teenage girl was sexually harassed, all those who defended her, including members of her family, were terminated one day after complaints were made and forced to immediately vacate their employer-provided housing. The case remains pending.[180] Mark Heller, an attorney in Ohio, described a similar sexual harassment case where the woman first came to him reporting she had been evicted after she was harassed and then fired.[181]
Some farmworkers expressed fear that if they were to report the abuse, they would not only lose their jobs, but also be blacklisted by other employers. Since bringing a complaint against an onion packing plant in 2005, Veronica Z. reported she has had difficulty finding steady work: “Every packing shed where I get a job, I start for a couple of days, and then I get laid off. I think they’re checking my record. My son and I applied to work at a tomato cannery, and my son was hired but not me.”[182]
Even when workers are not fired, their harassers can make life difficult for them. Workers can be kept from taking breaks or from going to the bathroom, or they can see their hours or pay cut. Guadalupe F., a poultry processing worker, said that when she reported her supervisor’s harassment to the company, he began to make her life even more difficult. She was assigned to tasks near liquids to which she was allergic, he refused to let her take days off when she needed to take care of her children, and he threatened to go to the office and tell them she was working under someone else’s papers.[183] Similarly, Belen F., who was harassed for being transgender, reported being demoted from being a foreman to a line worker, with corresponding cuts to her pay.[184]
V. A Dysfunctional Immigration System
International human rights law requires that basic rights protections apply to all persons in a state’s territory, including authorized and unauthorized non-citizens. This is critical to protecting US citizen workers, as well as non-citizen workers, because it minimizes employers’ incentives to hire easily exploitable immigrant workers.[185]
Yet when immigrant farmworkers experience sexual violence and harassment, many choose not to report these abuses under either civil or criminal law. Many factors discourage farmworkers from reporting abuses, including the desperation that comes from poverty and lack of community support, but one of the most significant is their immigration status. Whether they are working without authorization or with guestworker visas, immigrant farmworkers live with a constant fear of deportation.
Several farmworkers we interviewed reported that fear of deportation was a major reason they chose not to report sexual violence, sexual harassment, or other workplace abuses.[186] Even some farmworkers with work authorization who had filed sexual harassment claims said they would not have done so had they been unauthorized.[187] Some attorneys pointed out that fear of deportation is particularly acute for women with children, as they fear separation from their US citizen children and loss of ability to support their families.[188]Another legal services lawyer noted that fear of deportation can also affect the willingness of witnesses to participate in investigations.[189] Blanca Rodriguez, an attorney representing farmworkers in a sexual harassment lawsuit, reported that the foreman in the case had worked at the company in question for more than 40 years and had sexually harassed women the whole time, but the women had not reported it because they were unauthorized and afraid.[190]
Uncertain immigration status both increases worker vulnerability to exploitation and diminishes their willingness to interact with government officials. Although reporting employees to immigration authorities for asserting workplace rights constitutes illegal retaliation, workers still have reason to fear that employers may do so. The increasing involvement of local law enforcement in immigration enforcement further fuels worker fears that contact with the police could lead to deportation. Should they nevertheless decide to file a civil claim, unauthorized workers face a system that treats them differently from other workers, from more limited access to legal services to limited remedies. The US government, instead of directly addressing the problem, continues to delay much-needed immigration reform and enables the industry’s reliance on a vulnerable workforce.
Limitations of the Current Immigration System
When people ask about food justice, I tell them you have to go contact your congressman about immigration.
—Sandy Brown, Human Resources, Swanton Berry Farm, California, July 21, 2011.
Currently, the only way to migrate legally to the US for agricultural work is through the H-2A temporary agricultural worker program.[191] In 2011 there were about 68,000 H-2A guestworkers in the US, only a small percentage of the total agricultural workforce.[192] Advocacy organizations such as Farmworker Justice and the Southern Poverty Law Center have criticized the H-2A program for permitting age and gender discrimination.[193] None of the farmworker women interviewed for this report stated they were H-2A workers.
The H-2A program is unpopular with both employers and farmworker advocates. Employers argue that the program is too limited and complicated to meet their labor needs. When applying for H-2A visas for workers, employers must certify that they are unable to find domestic workers and that bringing in guestworkers will not adversely affect the wages and working conditions of US workers.[194] H-2A visa holders are allowed in the US for a limited period of time, generally less than 10 months, and then are required to go back to their home countries before they may return.
Farmworker advocates criticize the program for failing to protect workers’ rights and for encouraging employers to prefer vulnerable guestworkers over US workers. H-2A visa-holders are dependent on their employers to remain in the US, as they are not allowed to transfer the visa to other employers.[195] There is no way for an H-2A guestworker to become a permanent resident, and unauthorized workers already in the US cannot regularize their status through the H-2A program. The H-2A program contains some requirements regarding wages, housing, and transportation that are intended to protect guestworkers from workplace abuses. But guestworkers are also explicitly excluded from protection under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), meaning they have no right under the AWPA to sue in federal court for lost wages, housing benefits, and other requirements of the H-2A contract.[196] Like other agricultural workers, they also have no right to collective bargaining.[197]
In view of these limitations, some farmworker advocates believe that, despite their legal status, H-2A workers can sometimes be even more vulnerable to workplace abuses than unauthorized immigrant workers. Some of the most egregious cases of forced labor in the US have involved H-2A workers whose employers held them in virtual slavery.[198] Jenifer Rodriguez, a legal services lawyer, has found that “[H-2A workers] have no power…. They’re so isolated, too. They don’t have the local support…. They’ll tell me horrendous stories of propositions [a grower] makes, but they’ll never want to do anything about it.”[199] One lawsuit filed in August 2011 in Louisiana alleges that Mexican female workers who came on H-2A visas to work in a crawfish processing plant were subject to sexual propositions by the employers, as well as threats of violence, nonpayment of wages, forced labor, and racial discrimination.[200] The lawsuit further alleges that the employer requested that the local police department detain two of the plaintiffs, and that they were then detained unlawfully.[201]
Given the limitations of the H-2A program, farmworker advocates, as well as employers, have pushed for legislation that would both revise the H-2A program and create a program of earned legalization for unauthorized farmworkers already in the US. The Agricultural Job Opportunities, Benefits, and Security Act, or AgJOBS, was negotiated by farmworker advocates, led by the United Farm Workers, and major agricultural employers, and it initially enjoyed broad, bipartisan support.[202] Now, almost 10 years later, it is no closer to passing than it was when it was first introduced in 2003. It was last included in a comprehensive immigration reform bill in 2011, but the current political climate makes it unlikely that any comprehensive immigration reform bill will pass Congress in the near future.[203]
In response, Congress has recently debated several different bills proposing revisions to the H-2A guestworker program.[204] While the precarious immigration status of many farmworkers can only be fully addressed through comprehensive reform, reforming the H-2A program to be more protective of workers’ rights would help to ensure greater workplace safety for farmworkers, including prevention of sexual violence and harassment.
The Government’s Competing Interests: Immigration Enforcement versus Worker Protection
In recent years, the federal government has ramped up enforcement of immigration laws, and the Obama administration has presided over a record number of deportations.[205] According to a 2009 report by the National Employment Law Project (NELP), these immigration enforcement actions have had serious repercussions on efforts to protect workers’ rights.[206] US Immigration and Customs Enforcement (ICE) has conducted high-profile workplace raids where worker’s rights investigations are ongoing; ICE agents have even masqueraded as Occupational Safety and Health Administration (OSHA) agents and held information sessions where they then arrested the attendees; and local police have arrested workers at employers’ requests and then turned them over to immigration authorities.[207] One farmworker interviewed by Human Rights Watch was deported while her sexual harassment lawsuit against her employer was pending, and she feared her employer had reported her to immigration to intimidate her.[208]
There is a fundamental conflict between the priorities of ICE and the priorities of worker protection agencies such as the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and others. ICE has taken some important steps to address the conflict, but they do not fully address the scope of the problem.
The DOL recently updated its Memorandu
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