Growers should be on alert for claims made by employees to the Equal Employment Opportunity Commission, a federal agency that enforces laws against workplace discrimination based on gender, race, national origin, disability, and religion.
The commission is targeting Pacific Northwest farmers. It has announced that its national priorities now include “protecting immigrant, migrant and other vulnerable workers” and “preventing harassment through systemic enforcement and targeted outreach.” What is most worrisome about these discrimination claims is that the commission often takes a charge from one employee or former employee and then argues that there is an entire class of employees who may have been discriminated against as well. The commission prefers these classwide or “systemic” cases in large part because they greatly increase damages, are costly and time-consuming for the employer to defend, and come with a significant amount of publicity generated by commission press releases.
The commission has filed several recent suits against Northwest farmers, asserting claims of sexual harassment and even “human trafficking.” It is also pursuing claims against growers for not providing the same opportunities for women in nontraditional areas of work, such as supervisors, equipment operators, irrigation workers, and pruners. The commission has broad authority and frequently uses aggressive litigation tactics that not only increase the employer’s costs but demand much of the employer’s time. Most employers end up settling to avoid the expense and aggravation of litigation, but some employers have fought back.
In 2010, the commission brought a class action against Evans Fruit Company, an apple grower in Cowiche, Washington, claiming that a ranch foreman and certain crew leaders had sexually harassed female farmworkers. That class action began with the claims of three women who were former employees of Evans Fruit. Eventually, Evans Fruit was able to whittle down the “class” to 13 women, and in April 2013, a jury found in favor of Evans Fruit as to all 13 claims. Although the Evans case established that employers who are willing to fight the commission can win, it is far better for employers to avoid lawsuits in the first place.
Tips for avoiding discrimination lawsuits
—Have an up-to-date sexual harassment and -discrimination policy, which describes conduct that is prohibited. Explain the company’s complaint procedure and give phone numbers for the people authorized to receive complaints. The policy should make clear the employer’s intention to investigate thoroughly and include a promise not to retaliate against people making complaints;
—Identify more than one person to whom -people can complain. If you employ workers who do not speak English, one of the people identified to receive -complaints must be a Spanish speaker;
—Distribute your antiharassment policy to all employees, including new hires, on an annual basis and establish a system that proves each employee received a copy;
—Post the policy where employees will see it often;
—Include your phone number on every pay stub;
—Consider the possibility of a third-party anonymous hotline. There is a cost, but it is small compared to the cost of litigation and will remove any argument that an employee was too fearful to complain;
—Investigate every claim of discrimination and -carefully document who, what, when, where, and -witnesses;
—Maintain documentation and witness statements;
—Take action against offenders;
—Follow up with the complaining party to make sure the bad conduct has stopped;
—Remember that any action taken against a person who complains of discrimination may be construed as retaliation, which may result in claims;
—Provide sexual harassment and other discrimination training (in Spanish and English) on an annual basis and maintain sign-up sheets for those who attend. If your workforce is largely migrant or field workers and mass training is difficult, consider a short video to be shown to new hires and all employees annually;
—Revamp hiring and promotion policies to increase the number of women in nontraditional jobs;
—Establish an e-mail policy prohibiting -sexual, racial, and other offensive or discriminatory -communications;
—Never send an e-mail that you would not like to see blown up large in a courtroom;
—Understand your liability regarding guestworkers and farm labor contractors. You can be liable for their misconduct or errors. Seek legal counsel.
Sarah Wixson is a Yakima-based employment attorney with Stokes Lawrence. She was part of the trial team that argued the case for Evans Fruit. She can be reached at firstname.lastname@example.org.