HRW’s report is based on interviews with over 160 farmworkers, attorneys, agricultural industry employees, service providers, police, and others across the country. Over 50 female farmworkers were interviewed who work in farms in California, North Carolina, and New York.  Because over 50 percent of the agricultural workforce consists of undocumented immigrants, who would likely fear deportation if they complained, victims of sexual harassment and abuse in farmworker communities face significant hurdles to obtaining justice.  Immigrant farmworkers working with guest worker visas are vulnerable as well because they are dependent on their employers to remain in legal status, and thus are often reluctant to report workplace abuses.

HRW proposes a number of solutions for the situation at various levels.  It asks the federal government to pass the Senate version of the Violence Against Women Act reauthorization bill, which would provide specific funding and attention to survivors of sexual assault, including stronger protections for immigrant farmworker women and girls.  It further calls for passage of federal legislation to eliminate the exclusion of farmworkers from important worker-protection laws such as the National Labor Relations Act and the Fair Labor Standards Act.  The organization requests that local police and sheriffs more thoroughly investigate complaints of sexual violence, regardless of immigration status.

Finally, HRW requests that agricultural employers create and enforce clear policies prohibiting sexual harassment for all employees.  As Grace Meng, a researcher in the U.S. HRW Program and author of the report, notes, “Rape, groping, and obscene language by abusive supervisors should not be part of the hard labor conditions that immigrant farmworkers endure while producing the nation’s food.  Instead of being valued for their contributions, immigrant farmworkers are subject to a dysfunctional immigration system and labor laws that exclude them from basic protections most workers take for granted.”

Debra S. Katz, a sexual harassment attorney at the D.C. law firm of Katz, Marshall & Banks, believes that unfortunately, this sort of behavior is all too predictable.  “Sexual harassment and abuse are common in workplace situations where there are vast power imbalances between employees and employers, especially in the absence of legal protections.  These situations, where victims feel that they have no legal recourse, are very conducive to the kind of abuses described in the Human Rights Watch report.”

The plaintiff, Luis Patino, filed suit against the his former employer, Birken Manufacturing Company, alleging that it engaged in a discriminatory practice in violation of General Statutes § 46a-81c (1) when it failed to take adequate steps to protect him against workplace harassment based on his sexual orientation.  Mr. Patino had worked for the defendant from 1977 until 2004.  From 1991 until 2004, Mr. Patino was subjected to almost daily verbal harassments regarding his sexual orientation.  The comments consisted of a range of derogatory slurs for homosexuals in various languages.  During the first five years of this harassment, Mr. Patino recorded the harassment in his diary, but did not report it to supervisors.  After five or six years of the abuse, however, Mr. Patino finally complained to his supervisor.  The harassment nevertheless continued with the same frequency and severity.  After filing five complaints with the state’s commission on human rights, Mr. Patino filed a hostile work environment lawsuit against the defendant.   

In the language of federal anti-discrimination law, the term “hostile work environment” refers to a work environment so infected with discriminatory insult and ridicule that it affects the terms and conditions of the workplace.  While federal law permits an individual to bring a hostile work environment claim against a private employer for discrimination based on race, sex, national origin, age, religion, pregnancy status, and disability, there is no federal statute prohibiting private-sector workplace discrimination based on sexual orientation. 

Although the Connecticut state statute at issue in Perkin did provide protection for a firing or non-promotion or other discrimination based on sexual orientation, it was unsettled whether the statute would allow an employee to bring a lawsuit based on a hostile work environment.  In determining whether a hostile work environment cause of action existed, the Connecticut Supreme Court in the Patino case analyzed the statute in light of the analogous federal anti-discrimination statute, Title VII of the 1964 Civil Rights Act, which both predates § 46a-81c (1) and contains almost identical language.  Finding that the U.S. Supreme Court has long interpreted Congress’ use of the “terms, conditions, or privileges of employment” in Title VII as evidencing an intent to outlaw a hostile work environment, the Connecticut court held that § 46a-81c (1) evinces a similar intent with respect to sexual orientation discrimination and therefore provides for a hostile work environment cause of action under state law.

 The decision was not only a much deserved victory for the plaintiff, Mr. Patino, who was awarded close to $100,000 in damages, but it marked a significant shift in anti-discrimination law at the state level.  Jon Bauer, a clinical professor of law at the University of Connecticut, told Law360 last Monday that, as far as he knew, this was “the first state supreme court decision in any state that expressly holds that harassment on the job based on sexual orientation is actionable to the same extent as sexual harassment or racial harassment.”  For more information on the law of sexual harassment, please visit the Sexual Harassment page on our website.  

The EEOC sued Quality Egg, LLC in December alleging that an unspecified number of female employees had been subjected to a sexually hostile work environment and that Quality Egg had failed to take adequate steps to stop the harassment after being notified.  The EEOC sought damages for lost wages and pain and suffering, in addition to a consent decree requiring the company to take preventive steps to stop future sexual harassment.

Egg mogul Jack DeCoster and his son Peter DeCoster previously owned and operated Quality Egg, LLC, but gave up control of the company last year following a wave of lawsuits instituted in the wake of a nationwide salmonella outbreak that was linked to the egg farm.  Centrum Valley Farms of Alden is currently leasing the egg operations and has vowed to fix the food safety and employment problems.  Centrum Valley Farm’s director of human resources, Jenny Muilenburg, stated that the manager named in the EEOC’s complaint no longer works for the company, and that they have implemented preventive sexual harassment programs at the company, including sexual harassment training for all employers.

For more information on sexual harassment, please visit the Sexual Harassment page on our website.

After pre-litigation settlement negotiations failed, the EEOC filed suit against Golf International in U.S. District Court for the District of Arizona alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.  Last week, the EEOC reported that Golf International had agreed to settle the claim for $25,000.  In addition to paying damages, the 48-month consent decree settling the suit requires the company to provide training to its employees on unlawful employment discrimination and retaliation and to revise its discrimination policies as needed.

Mary Jo O’Neill, an attorney in the EEOC’s Phoenix office, highlighted the importance of both ensuring a discrimination-free workplace and providing a space for employees to report discrimination if and when it occurs:  “Employment discrimination cannot be stopped or corrected if employees do not feel free to report it.  The law’s protections against retaliation are absolutely critical to enforcement of employees’ civil rights.”  For more information on sexual harassment, please visit the Sexual Harassment page on our website.

The decision came in response to an appeal filed by Mia Macy, a transgender woman who was denied a job as a ballistics technician by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).  Macy, a longtime police detective, applied for a job as a ballistics technician at the ATF’s Walnut Creek, California laboratory, and the agency assured her that the position was hers pending the completion of a background check.  During the hiring process, however, Macy disclosed her gender transition.  Shortly thereafter the agency informed her that the funding for the position had been suddenly cut.  Macy later learned that the ATF had in fact hired another applicant for the job.

In a 1989 decision in the case of Price Waterhouse v. Hopkins, the U.S. Supreme Court established that Title VII’s prohibition on sex discrimination applied not only to biological sex, but to gender as well.  The EEOC noted that discrimination against transgender employees amounted to gender discrimination, and therefore concluded that a claim of discrimination based on gender, identity, change of sex or transgender status was cognizable under Title VII.  Law360 noted that even though the decision came in the context of a complaint against a federal agency, private employers should take note, because the EEOC enforces and interprets federal discrimination law.

Advocates for transgender rights were thrilled with the EEOC’s decision.  Ilona Turner, the legal director for the Transgender Law Center (“TLC”), said that “It’s incredibly significant that the commission has finally put its stamp of approval on the common-sense understanding that discrimination against transgender people is a form of sex discrimination.  That’s true whether it’s understood as discrimination because of the person’s gender identity, or because they have changed their sex, or because they don’t conform to other people’s stereotypes of how men and women ought to be.”  Masen Davis, the TLC’s executive director, added that “Having the protection of federal sex-discrimination law is especially critical for transgender people who live in the 34 states that lack transgender-inclusive nondiscrimination laws.”

The Maryland trial court that originally heard the case granted PPLC’s motion to dismiss, finding that the ministerial exception, which exempts religious organizations from some types of employment lawsuits, barred any evidence relating to her job performance at church.  The Maryland Court of Special Appeals reversed the dismissal, and that decision was affirmed by the Maryland Court of Appeals in September 2011.  The PPLC filed for a writ of certiorari to appeal the Maryland high court’s decision.

The denial of certiorari came on the heels of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which held that religious organizations are protected from some employment lawsuits by the Establishment Clause and the Free Exercise clause of the First Amendment.  Chief Justice Roberts held in that opinion that permitting discrimination suits against religious groups would require churches to accept or retain unwanted ministers, stating that “By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

The PPLC argued that the high court’s decision in Hosanna-Tabor supported the trial court’s decision to dismiss the case.  The Maryland Court of Appeals disagreed, however, ruling that the ministerial exception bars only claims that require excessive judicial intrusion into a religious organization’s operations.  The Maryland high court explained that “It is difficult to see how one could come up with a principled basis — except for the severity of harm inflicted — for distinguishing between this suit and a parishioner’s suit against a priest who sexually molested him. … The court need not delve into ecclesiastical matters to find that this occurred.”

According to the EEOC , a teenaged crew member at a Burger King in Sandy, Oregon, was relentlessly pursued for nearly two years by her older, married supervisor with unwelcome sexual comments and touching.  He discussed her virginity, demanded that she have sex with him and other male employees, and asked how much she would charge for sex.  He also ordered her not to tell management about his behavior, and frequently followed her around the store and into the parking lot on breaks.  The young woman’s complaints to management were ignored, until finally she felt compelled to quit for her own safety.

Under the terms of the settlement, in addition to financial compensation for the victim, Kaizen agreed to adopt a comprehensive non-discrimination policy and complaint procedure, conduct training for staff and management officials and submit semi-annual reports to the EEOC detailing any complaints of sexual harassment that may have arisen in the prior six-month period.  William R. Tamayo, EEOC’s Regional Attorney for San Francisco, said that “This case involved serious allegations of sexual harassment and the failure to protect a young worker.  Companies across this region must realize that they will be held liable for the mistreatment of their employees by their managers.”

The complaint alleges that during Hong’s employment with Morgan Stanley, she was subjected to “a pattern and campaign of ongoing and continuous harassment/discrimination, retaliation and the uncorrected adverse effects on her pertaining thereto, based on her sex (female), race (Asian), national origin/ancestry (Chinese/Vietnamese) and disability, and based on retaliation, from at least 2004 and continuing up to the present.”  Specifically, the lawsuit alleges that Ms. Hong experienced “verbal innuendoes, sexual solicitations and advances, graphic photos, sexually pornographic videos via the Internet and discs/CDs (which included child pornography), giving and leaving adult toys on plaintiff’s desk, taking plaintiff to strip clubs after training sessions, bringing plaintiff to adult sex shops after lunch meetings, luring plaintiff to a sex party, engaging plaintiff in sexually explicit conversations, requesting plaintiff to assist in creating fantasy figures and drafting sexually inviting letters for role play, setting plaintiff up on dates with prospective clients of senior advisers and unwelcome physical conduct and advances.”

According to the complaint, despite Hong’s repeated complaints about this harassment to supervisors and the company’s human resources department, the harassment did not stop until she decided to take her leave of absence.  Her suit seeks damages for economic losses, as well as punitive and exemplary damages for her pain and suffering, emotional distress, and humiliation.

An Iowa federal district court judge initially dismissed the EEOC’s case on behalf of over 100 female CRST employees, Law360 reports.  On appeal the Eighth Circuit revived only two women’s claims in a 2-1 decision handed down on February 22, 2012.  The panel for the Eighth Circuit – one of the most conservative circuits in the country, with nine of its eleven judges nominated by Republican presidents – held that the EEOC had not tried to gauge the size of the potential class of employees.  As a result, the panel found, the EEOC failed to “reasonably investigate or conciliate in good faith” the claims of 67 of the employee-class members during its investigation of the sexual harassment charge – filed by just one CRST employee – that led to the litigation.

In its petition for reconsideration, the EEOC contends that the Eighth Circuit decision requiring that it identify every potential victim before it files suit is unsupported by the plain language of Title VII.  The EEOC also argues that other circuits have not subjected the agency to such an onerous requirement, instead allowing the agency to move forward with class-action suits so long as the suit asserts the same type of discrimination specified in the reasonable cause finding.  The petition for rehearing concludes that “The panel’s unprecedented imposition of this new requirement will impede EEOC’s ability to enforce Title VII and other civil rights laws in workplaces with the most widespread discrimination.”

The jury found that the harassment of her by her male coworkers and supervisors was severe and pervasive.  She was repeatedly verbally abused through sexist slurs and crude jokes.  At one point she had a bathing suit stolen from her locker and, when it was replaced, found it stained with what appeared to be semen.  Male coworkers walked in on her in the shower, and the fire department refused to put a curtain up in the shower to give her privacy.  A coworker even went so far as to deliver what Smart feared was a death threat: she received a flyer that featured her photograph with the words “Next Fire Last Fire Liar” with an “X” drawn over her face.

The Miami Herald reported that Smart filed her complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) in March 2008.  After the EEOC provided her with a “Right to Sue” letter, Smart filed a lawsuit in federal court in Miami in May 2010, alleging she’d been sexually harassed and discriminated against because she was a woman. The Herald reported that Smart also alleged that after filing complaints, the city retaliated against her by suspending her for 240 hours and trying to have the Florida Health Department strip her EMS license.

Debra S. Katz is an attorney at the D.C. law firm of Katz, Marshall & Banks, who has represented many victims of sexual harassment.  “This verdict serves as a reminder to employers that juries will not tolerate serious sexual harassment of women on the job,” Ms. Katz said of the jury award.  “Many women today work in industries that have traditionally been dominated by men, and it’s important that employers in those industries are held accountable when they engage in or tolerate harassment and discrimination of female employees.”