What Is A “Vulnerable” Worker? The EEOC Has The Answer For Employers

Protecting “vulnerable” workers is an EEOC priority.  An EEOC press release stated that “Combating discrimination against agricultural workers falls within one of the priorities under the EEOC’s Strategic Enforcement Plan (SEP): protecting immigrant, migrant and other vulnerable workers.”

Kitchen, Help, Worker, Preparation

Workers are “vulnerable” to discrimination and harassment for many reasons and in many situation, mostly evidenced by their powerlessness and the low status of their jobs.  For example they may fear running afoul of immigration laws; they may be unable to speak English; they may be  physically isolated in the job, be it in a field or a warehouse; or perhaps they are mentally challenged.

As I wrote before – think Henry’s Turkey workers who fit many of these categories and were ripe for exploitation.

Two EEOC attorneys recently commented that “in small towns across America, many women are reluctant to challenge sex harassment at work for fear of invasion of privacy, unfair damage to their reputation in the community, and loss of much-needed employment.”

Examples of these situations can be found in the EEOC’s litigation docket.  My post of October 2nd noted a case where the EEOC sued a Florida organic farm for hostile work environment based upon national origin and color, and retaliation. It alleged that the kitchen manager and assistant managers repeatedly called Hispanic kitchen workers racial and other epithets and made comments such as “You Mexicans are ignorant,” “Mexicans are lazy,” and “These Mexicans are stupid.” Allegedly, one employee of Guatemalan origin was repeatedly referred to as “negra” and “the chocolate one,” and was fired after filing an EEOC charge.

I also mentioned an earlier post discussion of a very similar suit filed by the EEOC which charged a Maine farm and produce wholesaler with maintaining a sexually hostile work environment for female farmworkers who were “groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers” over the course of years. And despite repeated complaints by the workers, the company took no action, and, indeed, forced one employee to leave.

The New Settlement

A newly-settled EEOC case is important because it illustrates the EEOC’s commitment to vulnerable workers.  The EEOC announced that two potato packing companies in Colorado which allegedly permitted the sexual harassment of female workers by a supervisor will pay $450,000 to settle the lawsuit.  “The supervisor subjected numerous women employees to “various sexually inappropriate actions, including making sexual comments and gestures, propositioning female employees, touching them on their buttocks and breasts, and in at least one instance, pulling a female employee onto his lap. Complaints to management went unheeded, according to EEOC, and in some circumstances, women were actually fired after complaining.  As a result, the harassment continued unabated for several years.”

The significance of this settlement to the EEOC (and, hopefully, to readers of this blog) is evidenced by the many comments made different EEOC officials and attorneys:

“This case is the latest in a long-series of cases challenging sexual harassment in the agricultural industry, often directed at immigrants from Mexico and Latin America, and the second sexual harassment case that EEOC’s Denver office has resolved involving potato farms in the San Luis Valley geographic area.”

“We believe that our lawsuit and the significant relief obtained in this settlement will send the message, not only to the defendants, but to the entire produce packing industry, that EEOC will not tolerate this kind of abuse – or retaliation for complaining about it.”

“EEOC considers protecting immigrant, migrant and other vulnerable workers from discrimination and harassment a priority under the December 2012 Strategic Enforcement Plan. We will continue to ensure that federal anti-discrimination laws are enforced in this industry.”

Takeaway, taken in part from a prior takeaway:  

The EEOC has a “longstanding nationwide commitment to addressing the plight of these vulnerable workers.”   Employers should understand that, from the top down, an anti-discrimination and anti-harassment tone and policy must be set, and all management personnel as well as line workers must be trained and educated in the basics of discrimination and harassment law and compliance and its application in the workplace.

Employers should not tolerate discrimination or harassment in any form, and must make it clear by words and deeds that employees have the right to complain about such acts and that their complaints will be heard, investigated and, if good cause is found, remediated promptly.

The agricultural industry is not unique or alone in its being targeted as an EEOC priority:  it is simply an industry where workers may be at their most vulnerable because of the nature of that  workplace.  Accordingly, extra attention to compliance must be paid by these employers.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]