Five workers from a farm in Lind, Washington agreed to a $650,000 settlement with National Food Corporation for their sexual harassment and retaliation claims. An article in the Seattle Times reports that the workers were sexually harassed by their supervisor and then fired when they reported the harassment up the chain of command. The workers’ story is a textbook example of unlawful retaliation against employees who oppose workplace discrimination.
According to the article, agricultural workers are especially vulnerable to sexual harassment. One large reason is that the workers do not report harassment because they fear retaliation. Many agricultural workers face financial difficulties and are afraid of being fired. In addition, approximately 50-75% of agricultural workers are undocumented immigrants who fear being reported to immigration officials. However, anti-discrimination laws and their counterparts forbidding retaliation protect undocumented workers as well as those with legal status.
Both federal and Washington law prohibit sexual harassment in the workplace. In addition, the laws forbid employers from retaliating against employees because they complain about sexual harassment. Unlawful retaliation usually takes the form of an adverse employment action such as firing, suspending, or demoting an employee. But retaliation also includes other adverse actions that are intended to discourage employees from complaining about unlawful practices. In the case of undocumented immigrants, the fear of deportation would certainly dissuade workers from complaining about sexual harassment and would probably be considered unlawful retaliation.
Other protections exist for undocumented immigrant workers. The Ninth Circuit, which covers the state of Washington, has ruled that an employee’s immigration status does not matter for the purposes of a discrimination or harassment claim. That means that employers who do not know their employees’ status cannot try to discover it during the course of a lawsuit. Also, federal agencies like the Equal Employment Opportunity Commission (“EEOC”) will not consider a worker’s immigration status while investigating or deciding a harassment or discrimination claim.
In addition, immigration officials generally will not enforce immigration laws at a workplace where there is an existing labor dispute or investigation. The Department of Homeland Security (“DHS”) and the Department of Labor (“DOL”) have entered into a memorandum of understanding to make sure that they do not interfere with each other’s enforcement process. In the memorandum, DHS has agreed to refrain from enforcing immigration laws at worksites when it will interfere with DOL proceedings. As part of that agreement, DHS examines any information it receives about undocumented workers to make sure it the information was not provided for improper purposes such as retaliation. If it determines that the lead it receives is motivated by retaliation, DHS generally will not act on that tip.
Unfortunately, undocumented workers in general and agricultural workers specifically are exposed to unlawful discrimination and harassment. However, an employment attorney can help employees defend their legal rights and avoid unlawful retaliation.
