Bill Tamayo: Criminal Cases Needed to End Immigrant Abuse
June 25, 2013, 9:28 pm ET
Bill Tamayo is the Regional Attorney for the U.S. Equal Employment Opportunity Commission, San Francisco District. Hundreds of cases of rape in the fields have been filed with the agency, and Tamayo’s office has brought more than a dozen to court. This is the edited transcript of an interview conducted on Sept. 17, 2012.
What is the Equal Employment Opportunity Commission?
The EEOC is the federal agency charged by Congress to investigate complaints of employment discrimination. If we find that discrimination has occurred, we try to reach a settlement with the company. And if we can’t reach a settlement, then I decide that we should go to federal court and I file a lawsuit. …
… When I think of the EEOC, I think of [U.S. Supreme Court Justice] Clarence Thomas and Anita Hill, but I think of its orientation toward African [American] discrimination. How did this change, and how did you get involved in it?
I would say the bulk of the EEOC [cases] in the earlier years were primarily race discrimination, because that was the burning issue at the time. But [they] also included sex discrimination, where women were denied opportunities, weren’t hired, weren’t promoted and so forth.
The focus of the commission had been primarily urban workers, again African Americans and white women, but as the workforce has changed to incorporate many other groups, the EEOC has had to adapt to that, too.
So, for example, I joined the EEOC in 1995, and I was tasked with going out to talk to our different stakeholders to see what were the main issues affecting us. I knew that California had a large agricultural industry, so I met with the advocates for farmworkers. I said, “What are the main issues that you see we should address?,” and they nearly all said the same thing. It was sexual harassment in the fields. They said: “Look, if there’s anything you can help us with, it’s that women are being raped in the fields by co-workers and supervisors. Can you help us?”
When I received that information, I was not necessarily surprised, because I had done cases of immigrant women being battered by their husbands. And I had also worked as a law student at the [California] Agricultural [Labor] Relations Board and [was] quite aware about the fact that in the fields, the power imbalance is so great between the company and the employee.
I think what more surprised me was the extent and the frequency [with which] the advocates said rape was a big problem in the fields.
What was your reaction when you heard this?
It was quite shocking but at the same time quite a big challenge, because for me it meant having to figure out, how do we make the federal agency relevant to a population that it had historically denied, mainly Latino workers, primarily women who didn’t speak English and women who were in rural areas?
It required a significant culture change, getting the linguistic competencies and cultural competencies for our staff and being able to work with primarily the farmworker advocates to get a bigger and better grasp of what the problem was.
“They said farmworker women were talking about the fields as the fields ‘de calzón,’ or ‘fields of panties,’ because that’s where the women had to go to in order to get a job, keep a job, get a promotion or to get a relative hired.”
I think my advantage of coming into the issue was that I had at least worked with many of the advocates in another context. So, for example, California Rural Legal Assistance is an agency that I had co-counseled with in my previous job before I came to the commission, so they knew me, and I knew them.
But that was still the starting point, was we knew each other, but the major part was that many people didn’t know what the EEOC was in the rural community. So we launched a major outreach program with CRLA and also with a group called Líderes Campesinas, a farmworker women’s leadership group, so that we could just reach out to these women to tell them what their basic rights were. At least they knew there was a federal agency to turn to.
… How big is this [problem]? Or how was it described?
They said farmworker women were talking about the fields as the “fields de calzón,” or “fields of panties,” because that’s where the women had to go to in order to get a job, keep a job, get a promotion or to get a relative hired. Basically [it] was the classic quid pro quo. They referred to the fields as the “green motel,” because it was [like] they had to go to a motel and have sex with a hiring official.
I think my initial reaction was asking myself, this is happening in the late 20th century? Because really [it was] the end of the 20th century when I was informed about the issue. And you would think that, wow, over a century after slavery had ended, why do we still have these conditions in the fields? …
… Did anybody tell you a story? What do you mean, “green motel”? Or what do you mean, “panties”?
I think they just described that if women had to go up to get hired, sometimes the officials would say, “Well, you’ve got to come with me to the motel,” or “You’ve got to take a trip with me to the fields.” So this was a case, a scenario that we had heard about but had not yet received that charge.
So my response to that was to at least do training to CRLA and other advocates about what is sexual harassment and what does the federal law say about it. So we did a training in August of 1996 to CRLA staff, and the following September we get a charge that came to our office from a farmworker, represented by CRLA, who alleged that she had been sexually harassed at … [a lettuce farm]. She alleged that in order to get a job, not on one season but on two seasons, she had to have sex with the hiring official. And when she later protested sexual harassment, she was fired, as was her co-worker/boyfriend at the time.
So she alleged that she had to have sex in order to get work?
Yes, even though the previous two or three seasons she didn’t have to do that. But this time when she went and applied for a job in Yuma, Arizona, she was told, “Well, you’ve got to do what all the other girls do.”
… Since then, how many cases have you done? And give me a summary as to what that has led to.
I think nationwide the commission has done several dozens of farmworker cases. They’ve ranged from primarily sexual harassment, a few age discrimination, a few disability cases, a few cases on national origin or racial slurs, for example, … but the bulk of them have been sexual harassment, anywhere from comments, propositions, all the way to rape.
… How many of these cases have you either settled, gone to trial with, represented? Maybe give me a sense of how many people are involved.
Of the rape cases, it’s happened up and down California. We’ve done them in Oregon; we’ve done them in Washington state. We’ve settled most of them. Some cases are still in litigation.
One case went to a full trial, which is the case against Harris Farms, which ended in 2005. That case involved a farmworker, [no relation], being raped three times at gunpoint by her supervisor, who then threatened to kill the victim Olivia’s husband if she complained to authorities about the sexual harassment.
These are civil cases?
These are civil cases. … Title VII of the Civil Rights Act of 1964 prohibits discrimination, and one of the bases is on the basis of sex, which includes sexual harassment.
But a number of these cases over the years have involved rape, sometimes multiple rapes and group rapes.
There haven’t been any criminal prosecutions in the cases that my office has litigated. There have been reports to the police but no follow-up.
A classic example is the Harris Farms case, where, after years of having been sexually harassed, including the three rapes, Olivia finally discloses it after she goes to a rape crisis center, that she had been raped. Harris Farms eventually called the police, but the deputy sheriff did not speak Spanish, was dependent on the company’s [human resources] assistant director for translation, for interpreting, which already colored the whole investigation, and that supervisor gave her own version that she thought Olivia was lying, wasn’t credible. The deputy sheriff just dropped it and said, “I don’t believe her either,” and just dropped it.
In the Harris Farms case there was a trial. There was a verdict for the plaintiff.
For the EEOC and for Olivia.
So when you won the case, was there a criminal investigation after that?
I don’t know. … They were alerted, and they didn’t do anything.
And the perpetrator or perpetrators?
He was allowed to retire, supposedly in Texas. Never been arrested for these crimes.
So the alleged harasser, Rene Rodriguez, was allowed to retire in Texas, and as far as we know, he was never arrested nor prosecuted for whatever he did to Olivia. …
… He denied everything at the trial. He first he claimed that it was a consensual relationship. Initially he claimed that it was a consensual relationship, that they had had sex a thousand times.
Yet at trial he was not able to describe any particular body marks on the torso of Olivia. And he wasn’t able to because the three times he raped her, he raped her when she had her top on, but he just pulled down her jeans and raped her.
What kind of difficulties do you run into [with] getting people to step forward?
There’s many difficulties. The general statistics, particularly in rape cases, is less than 10 percent of women who are raped ever report it, and this is largely English-speaking women, largely white.
Now, in agriculture, the workforce is largely Latina, non-English-speaking, and women who are culturally and geographically isolated. So the chances for them to report are even less, in part because they know they’re vulnerable. They know they’re in a vulnerable population. They don’t have a whole lot of options in life.
And the other factor is, like many rape victims, they wonder whether anybody is going to believe them. In our cases, though, they’ve always also been combined with threats of retaliation or actual retaliation, so the threats being “I’ll fire you; I’ll fire your siblings,” or, “I will kill you; I’ll kill your family.” So that exacerbates the vulnerability of these women and makes them less willing to come forward, which creates quite a challenge for the EEOC.
We’re also the federal government, and I’m very aware that many immigrant groups are not always believing in the federal government. Yet I always say we’re one of the unique agencies that can make a difference for these victims.
You’re a tiny little agency.
That’s right. I wish we had a lot more people and a greater budget. But the other way to look at this is very few countries — I [can't] think of any other country that has any other component like the EEOC that can go after companies and sue them and get money for the victims.
… To most people, it’s just another one of those alphabet soup of federal agencies.
That’s right, but I think our goal is to be, again, meaningful and relevant to the most vulnerable populations, because they are the ones that are going to need intervention by the government to help them out, because we have these laws, and these laws are only as good as they are enforced. And fortunately we have an agency that’s set up to enforce these laws. …
… Give me some sense of how this has grown from the West Coast and across the country.
We’re looking at how the industry has expanded. Most of the agricultural work has primarily been on the West Coast, but it’s also moving back again to the Southeast, some in the Midwest, a lot in the Pacific Northwest, so that the estimates are there’s about 2.5 million to 3 million farmworkers in the United States.
The fastest growing areas are the Pacific Northwest and the Southeast, and the Pacific Northwest happens to also be part of my jurisdiction. It’s a reflection that the industry as a whole, while they grow products for domestic consumption, the principal market is international.
“You can’t let immigration law or the immigration service be a weapon in the arsenal of a batterer.”
With the growing world population — and they’re sending products all around the world — they want as much production and land as possible to get this done. What this does mean is an expanding labor force largely of immigrant workers, and again, very vulnerable, who may not know all their full rights and for a variety of reasons are scared to complain.
I think most shocking for me has been why, when we’re talking about a civil society that has civil rights laws and so forth, does this persist in this day and age? And I think some epiphany or some revelation came to me in 2004, when as part of my federal executive training I was brought to Thomas Jefferson’s plantation, to Monticello, [in Charlottesville, Va.], and then went through the plantation. And this was at the same time that stories were coming out about Thomas Jefferson and Sally Hemings having a relationship or affair or what have you. And as we were walking through the plantations, I just said, “That’s it! This is why this continues,” because when Thomas Jefferson was a slave owner, and he could have any woman he wanted, any slave, that was perfectly legal.
Now, if an owner of a farm or a supervisor wants to have sex with a woman or force her to have sex, that would be illegal. But what he has to do is make sure she can never access the system, so that’s by retaliation, termination, [threats] to harm her or her family. All those things serve to deter her from pursuing her claim.
So that’s the same power imbalance that Thomas Jefferson had as a slave owner. The perpetrator now, or the harasser in the 21st century, basically wants to have the same imbalance of power, and he does it through retaliation and denying her access.
… I can hear [people] who are listening to us saying: “Come on, sexual harassment, it’s everywhere. It’s on college campuses; it’s in office buildings; it’s everywhere in this country.”
That’s right. I agree.
And there are immigrants and there are all kinds of people working in these various places or people who feel powerless. So what’s the difference?
I think the major difference is that once we scored a major settlement back in 1999 against Tanimura & Antle, the cases just continuously start coming, because that was a $1.855 million settlement that to a certain extent broke precedent.
Here was the federal agency, federal government, going forward, advocating for farmworkers, a population that the government, at least the EEOC, hadn’t really represented in any significant manner, and we broke out the issue that sexual harassment was indeed going on in the fields. And since then we’ve just continued to get charges coming in from women alleging egregious sexual harassment.
Let me take the Tanimura & Antle case as an example. … They say: “Look at the court record. We didn’t admit to any wrong.”
That’s right. They will say that. They will deny that any of this stuff happened. But they decided to settle this case. They’re paying out $1.855 million. You can get their version that’s — you know, of course they’re not going to admit it, and that’s why we tried to settle this case out.
But we didn’t have to get an admission by the company to get this settlement. And the question goes, as one reporter said at our press conference back in 1999, “Well, if you’re not admitting liability, why are you paying nearly $2 million?” I think the money speaks for itself. It’s there.
But what we know after that is other women have stepped forward, and we’ve assessed their credibility, and we believe them. So in the case of Tanimura & Antle, EEOC did do an investigation, and we found Blanca Alfaro to be credible. Evidence supported what she alleged, and we said, “Yup, we believe that she’s telling the truth.”
But they might be saying: “Look, we settled that because it’s bad publicity, and it’s going to cost us a lot of legal fees. And we’re the largest lettuce grower in the world; $1.8 million, that doesn’t really mean much to us.”
That could certainly be their position. The question is, what is the impact of the case on other farmworkers? And I think the impact has been tremendous, because it opened the door for women to know that they could come to the EEOC and we would try to help them out if they were victims of sexual harassment.
Can you give us an estimate of how many cases there have been or how many complaints there have been since then?
There have been hundreds of charges we’ve received from fields and probably three dozen or more cases actually filed in federal court. My office has done over a dozen or more than that up and [down] the West Coast.
Now, not every case gets into litigation. Most of the charges do settle out before we file a lawsuit, because the employer wants to get out of the case and decides to pay money, and then those settlements pre-lawsuit are all confidential and we can’t talk about them.
And that’s not any different than most employers in any case [where] we find out that discrimination has occurred. They’ll try to work out some kind of settlement because they also know they don’t want to be fighting this out in the press or in the public, in a publicly filed lawsuit, racking up fees.
So are we talking about dozens, hundreds?
Hundreds of charges nationwide have been received [from] farmworkers since at least the ’96-97 era, and they continue to come in all around the country.
How many criminal charges have resulted from all this?
I don’t know of any right now, not at least in the jurisdictions that I cover. … I don’t know of any criminal prosecutions that have been put forward in any of these farmworker cases so far.
With hundreds of charges, millions of dollars in settlements, and you’re talking about across the country.
Explain what a charge means.
A charge is basically a complaint by a victim of discrimination who comes forward and says, “I’ve been,” for example, “sexually harassed.” When she makes that charge to us, that allows us to start doing the investigation.
Now, what I didn’t add earlier is that she can come forward with one charge, and if she says, “But I believe other women are being sexually harassed,” we can also interview those women. And if we think they’ve been victims, we can also get money for them even though there was technically only one charge that was filed. So we’ve been able to get money for other women who didn’t themselves come forward to file charges.
Have men reported being sexually harassed?
Men have also reported; we’ve had same-sex harassment cases in agriculture.
With settlements, yes. …
The question is, what does the company do once they find that information? Some companies do the right thing. They fire the perpetrator. They help Maria get some services, and they just make sure that all the employees know about their policies.
On the other hand, there are those companies who put profits before the worker and will try to do everything to defend the harasser and make it hard for the individual to pursue her claim. …
Some of the companies say you’re talking primarily about labor contractors, people that they hire to bring in [to do] temporary work, and you’re holding them responsible for these contractors.
I’m not sure why they make that argument, because in virtually all except a handful of the cases we’ve had where we filed lawsuits, it is the company. It’s not a labor contractor that is acting in a way that sexually harasses the women. It’s somebody from the company itself.
There have been cases of the labor contractor doing it and the company knowing about it, so we sue the labor contractor and the company, because they both have the duty to make sure it’s a safe workplace for the employees.
Tell me a little more about this Tanimura & Antle case, because you say it was a watershed.
When we held the press conference in 1999 and the company participated, it was a watershed in several ways. One is the chair of the EEOC, the general counsel of the EEOC, came out from Washington, D.C., to participate in that press conference, because we wanted to send a message to the agricultural industry that we were going to protect low-wage workers and in particular women in agriculture who were victims of sexual harassment.
The other part of it, though, was the fact that it was nearly a $2 million settlement, which had been unheard of for the federal government to get that kind of money in a farmworker case, because we hadn’t done any farmworker cases as an agency.
The other part, which I credit Tanimura with, Mike Antle, who was a vice president of the company, took to the podium and said, “Look, we want to set a new tone in the industry that women can come forward and complain about sexual harassment without fear of retaliation, and that we will investigate.”
Now, that was major, because he put it on the record that he knew that retaliation was a major problem that prevented victims from coming forward and telling them what was going on. And in that case, this was not a low-level official. This was the key top hiring official for the company who was conditioning employment on sexual favors.
So I think that was good. And the picture that went across all the wires those days was a picture of Mike Antle at the EEOC podium, and the other picture was Blanca Alfaro with her 3-year-old, or 5-year-old, daughter at that time.
… Since then, when you’ve had these various settlements against a large number of companies, do you have evidence that in fact harassment has stopped at these places?
You’re asking me to prove — that’s very difficult — has harassment stopped? We’re hoping, because we had a very strong consent decree which required training of all the managers and employees, that those types of consent decrees not only in Tanimura but in other cases helps change the work conditions so that employers do abide by the law.
I can only talk as a matter of law on the cases for which we’ve filed lawsuits, and I can tell you we haven’t sued Tanimura & Antle again, so I’m hoping that the record shows there have been improvements in some companies.
But again, because the workforce is constantly changing, workers may not know their rights. The vulnerability of these workers still remains or in fact is increased particularly during anti-immigrant climates. It may make it difficult for them to step forward. And the conditions, or the imbalance of power, that allows sexual assault to occur still remains. …
… What’s the role of U Visas in this process, and why are they important?
U Visas were established by Congress in 2000 as part of the Violence Against Women Act, because Congress recognized that many victims of serious crimes don’t step forward because they feared deportation.
And Congress passed a law that said nope, we will say if victims come forward and they cooperate with law enforcement, either the federal, state, local government, police, judges, etc., to help a prosecution or investigation, that we will allow them to stay [by] giving them these U Visas, and after three years, they can turn that temporary visa into a permanent status, full, legal status in the United States.
It was a tremendous tool to allow victims of crime to come forward, and Congress bought the argument that it’s better to have victims come forward and report crimes than have them be underground.
So the EEOC has been designated by regulation as one of the agencies that can provide certifications for the U Visa. We certify that yes, this victim has been cooperating in an EEOC investigation or lawsuit.
That application then is turned over to the Citizenship and Immigration Services (USCIS), which basically makes a decision on the visas. It’s very important for the EEOC, because we want to ensure that these people will stay through the investigation and the prosecution without fear of being deported.
So what do you say to those who argue that this encourages people to make up allegations of harassment so that they can in fact fraudulently become residents of the United States?
They can believe that, but that’s not the record. It’s that these applications are being granted overwhelmingly because the government agency, we make the assessment on the person’s credibility, so there has to be a government agency that certifies that we believe this person, she’s working with us, we’ve investigated, we believe her that she’s credible, and so we need her as a witness, or she’s worked or we need her for whatever lawsuit investigation.
And there’s no need for generally the Citizenship and Immigration Services. They wouldn’t have the basis necessarily to second-guess what we’ve interviewed on. They can ask questions, but once the government agency says, “Yeah, we need her,” we think that’s fine.
So if they’re saying, well, these women are making the fraudulent claims, what they’re basically saying is that the federal agencies that are interviewing these claimants are themselves lying. But remember, these are police, judges, federal law enforcement saying, “We believe her, and we need her as a witness.”
Has it ever turned out that someone that you certified actually wasn’t telling the truth?
I haven’t heard of anybody that we’ve provided certification for that’s been denied based on fraud.
I think what’s an interesting issue is before this, Congress used to think when immigrants married U.S. citizens and got their green cards through them that those were all fraudulent. And the Congress did pass laws that said no, you’ve got to show that you’re validly married and two years later down the line show that you’re validly married. And they do that, and they haven’t found any overwhelming [difficulty] with fraud.
And another instance, and a matter that I had worked on very closely, was we allowed for battered women to be able to file their own immigration petitions to become legal without relying on the U.S. citizen husband to start the process. Our argument — and this was before I joined the EEOC — to Congress was you can’t let immigration law or the immigration service be a weapon in the arsenal of a batterer.
So what you do is you take the immigration equation out of it and let her get her own green cards — providing that she’s had a valid marriage, and you have no doubt that this is a valid marriage; it’s just a bad marriage — and she can get permanent resident status.
Congress has bought that argument, and since then, something like 40,000 to 50,000 women and children have gotten their green cards without having the U.S. citizen husband start the process as it would normally have to be. Those applications are being overwhelmingly granted. The rate of fraud is so minuscule.
So I think what it points to is women don’t make this stuff up just to try to get a green card. They are serious victims of crime, because it takes a lot to come forward to say, “I was raped; I was beaten; he threatened to kill me.” And these are immigrant women who have a lot to lose. …
Many of the farmworkers, particularly in the Pacific Northwest and certainly in the Central Valley of California, don’t speak Spanish, or maybe speak it as a second or third language. They speak indigenous languages that are found primarily around Oaxaca, so Mixtec, Trique, other languages, which I think adds to the vulnerability, too, for them.
So Olivia Tamayo, when she came forward, that was a big deal?
Yes. … We heard about Olivia through Líderes Campesinas, the farmworker women’s leadership group. After Olivia had been raped years before, but the sexual harassment and retaliation was continuing by the harasser, something finally broke the camel’s back, and she went to a rape crisis center which was part of Líderes Campesinas’ network, and the case was brought to the EEOC.
She was somewhat reluctant to do it. She had never told her husband — this was 1999 — that she had been raped in ’93, ’94 and ’95, because when she was first raped at gunpoint, the harasser told her, “If you tell anybody, I will kill your husband,” who also worked at the farm. And Olivia had five young children, so she never told a soul until 1999. …
She finally tells it to the company just a few months before it came to the EEOC, and then it gets to the EEOC, and this was a difficult case, because they weren’t sure they wanted to follow through. But fortunately we were able to convince the family that they had the right to file charges and we would investigate the case. And we did, and we determined that Olivia was telling the truth.
It didn’t settle, unfortunately, so we filed a lawsuit. It didn’t settle anywhere during all the litigation, and we finally went to trial at the end of 2004. [It was] almost a six-week trial, and in January of 2005, we got the verdict for nearly a million dollars for Olivia. …
You obviously have been watching the news about immigration and the Supreme Court laws in Arizona and Georgia and so on. What’s the impact of this new empowerment of the state — that is, state law enforcement — to deport people, to look for their papers?
… I think it may still have a chilling effect, which is why a lot of the civil rights groups try to declare it unconstitutional, as did the federal government. I think time will tell how this will impact people.
Will it chill them from stepping forward to report crimes? … We’re going to have to see. … Our laws fortunately make no distinction based on immigration status, and I litigated the case that says undocumented workers are covered by Title VII [of the Civil Rights Act].
Undocumented workers are covered?
Are covered by Title VII, [which] makes no distinction based on immigration status, because if it did, then it would give employers every incentive to hire undocumented workers and rape them, and they never have coverage by the law.
… What’s curious to me is the disconnect between filing a civil case, getting a settlement in one case, getting a judgment after trial, and then you say zero criminal prosecutions, or none that you know of. … How can that possibly be?
I think you’ll have to talk to the DAs, the sheriffs, the police who are made aware of these acts and ask them why they don’t prosecute. I can’t answer for them. …
… States like California, at least the attorney general’s office, prides itself on, if you will, protecting workers and civil rights issues. How come this hasn’t happened?
I think you have to ask the people who are charged with enforcing the criminal laws why the claims of farmworkers, why the claims of women who are raped are not at the top of the agenda.
Now, granted, I know in a lot of these sexual harassment cases the women are scared to go to the police. And that ties into your earlier question: What happens if they think police have the right to go and report them to the immigration service? So they have to weigh, “Do I let him force me to have sex again, or [do] I fear deportation — not only my deportation, but the deportation of my siblings, co-workers, husband, who also work here at the farm?”
So all of those factors come into play. That’s the part that we need to work on. The criminal prosecutions of these harassers need to be done, but we have to set the conditions so women feel they can come forward and report those crimes.
You’re in charge of a group of attorneys, and you have investigators, and they’re working every day on cases?
Do they report to you people withdrawing their charge or withdrawing their client because their fear that they’re going to be deported?
People withdraw charges for a variety of reasons we don’t know. But in cases where they have been told, “We’re going to have you deported,” the agency has gone into court to get temporary restraining orders to block any further retaliation that may include termination threats, deportation, etc.
So we have ways to deal with that, because we don’t want to lose witnesses because the employer is retaliating against them or threatening retaliation. So the law specifically allows us to run into federal court to get an injunction to block any of the stuff by the employer. And then we would also charge that as a retaliation claim, and eventually, if it gets to a lawsuit, try to get money for that.
There have been problems in Iowa. When did you first hear about this, and what was happening?
I first heard about this it was the summer of 2000 or somewhere around there, and I was working late, and I got a phone call from a lawyer from the Iowa Coalition Against Domestic Violence [ICADV]. … [She] calls me and says: “Hey, can you help us? We’re hearing stories of women being raped at DeCoster Farms. Can you help us out?”
And I immediately contacted my counterpart in Milwaukee, Jean Camp, who was the regional attorney there who had jurisdiction over Iowa, and I said: “Look, this is the case that’s happening in your neighborhood. We understand women are being raped, are being threatened with harm. Can you jump on it?”
They made contact with the Coalition Against Domestic Violence and promptly sent a team to Iowa to investigate. We had heard that in the process, the company found out that the EEOC was coming to investigate, and some of the supervisors then intimidated some of the victims by threatening them with more harassment, termination and deportation.
Consequently, Jean was forced to run it to federal court to get a temporary restraining order to block all of the threats so that these women could cooperate with the federal government and the investigation.
… What is DeCoster Farms?
DeCoster Farms is an egg and poultry company in Iowa. … They are a major company. That case settled for $1.5 million.
They were raping women?
… These women were primarily Hispanic?
Hispanic women, primarily from Mexico, and very frightened.
Who’s Sonia Parras-Konrad?
She is the then-attorney from the Iowa Coalition Against Domestic Violence. … An indispensable part for the EEOC to do its job is that it has to have working relationships with the advocates all around the country who represent many, particularly immigrant, women and victims of violence.
How big is this problem?
It’s hard to quantify. It’s like asking during slavery times how many times did the overseer, the supervisors, the owners assault female slaves.
I don’t want to say that it’s that egregious, but again, I’d go back to the imbalance of power. When the conditions are so bad that [it] allows perpetrators to have a field day and think that they’ll never be punished by the company, then it creates conditions for the sexual assault to happen a lot.
How big is the problem? We’ll never know. … There are going to be many women who never come forward for a variety of reasons.
You said they feel, in this imbalance of power, that they won’t get punished by the company.
The perpetrators may feel like they’ll never get punished by the company. They’ll make sure Maria or whoever can never report it to the company because they threatened to kill Maria’s husband, fire her brother, fire her. All of those things keep a woman from reporting the violations that she experienced.
Our goal as a society is to create the conditions so that she does report it, and then law enforcement enforces the law, prosecutes these people, goes after the perpetrators and holds the companies accountable.
… You don’t know of criminal prosecution. They haven’t been punished by society.
That’s right. And as I said, to eradicate this problem, I believe you’re going to have to use all the tools that we have at our disposal, one of them being criminal prosecutions, the other being civil prosecutions like the EEOC or lawsuits, and the other being companies setting standards and holding people accountable. …
.. We know a lot about California; at least your victims initially came forward in California. Why is that, as opposed to the rest of the country?
I think California, because of the way the industry established itself here, particularly in the 1930s, there has been farm labor organizing here in one way or another in the ’30s, ’40s, ’50s and ’60s, when the UFW [United Farm Workers] was established, and California Rural Legal Assistance was established in 1965. That at least creates a network that is there to try to protect workers.
And we’ve been able to tap into that network to get the word out to do community education, and it’s been indispensable, and along with other groups like Líderes Campesinos.
Other states have very small networks, in part because agriculture just kind of boomed there very recently and they don’t have as long a history as we have here in California.
There is one case, though, that happened because we did work with a group called Oregon Law Center in Portland, a case where a farmworker was reporting that she had been sexually harassed, and when she had complained and she was fired, a co-worker says, “You should go to the Oregon Law Center, because they help people get their jobs back.”
“Women don’t make this stuff up just to try to get a green card. They are serious victims of crime, because it takes a lot to come forward to say, ‘I was raped; I was beaten; he threatened to kill me.’ And these are immigrant women who have a lot to lose.”
So Flora — we’ll call her Flora — went to the Oregon Law Center, and she was asked, “Is there anybody else who may have been sexually harassed?” And she says, “There’s my sister who was fired a year ago, and she’s never been the same.” So the Oregon Law Center said, “Bring your sister in.”
And the sister revealed for the first time that shortly after she was hired at a place called Willamette Tree Wholesale, the supervisor raped her with shears to her throat, and not only raped her then but forced her to perform oral sex upon him in the fields, in wintertime, about 10 dozen times. And after he first raped her, he told her, “If you tell anybody, I will kill you and your siblings and relatives who work here at the company.” And she never told a soul until finally she just happens to get pulled into the meeting at the Oregon Law Center. That was a difficult case, because she had missed her deadline to file with the EEOC, which was 300 days, and she filed her charge to us on like day 362. Way late.
But I said we’re still going to file a lawsuit on her behalf because what she went through was egregious. The company, as expected, moved to have her case dismissed because she filed her charge with the EEOC way past the deadline. But we successfully argued to the court that a company cannot benefit from having traumatized the victim [so] that she can’t get it together to file a charge. And we were able to put before the court a psychologist’s report, a therapist’s report saying that she was so traumatized by the multiple rapes and threats to kill [her] that she basically was not able to come forward and make her charge. … She was so traumatized she couldn’t tell her story. That’s the power imbalance we’re dealing with.
… Do your investigators have badges?
Yeah, they have IDs, and they go in, and they interview witnesses.
And do they have the power of federal investigators?
Yes, they’re federal investigators, and under the law, employers have to cooperate with us. If they fail to cooperate, they withhold documents, we issue a subpoena. If that doesn’t work, we go to federal court and a federal judge will order a company to comply with the subpoena.
And if [the company] lied to you?
… Then we still assess credibility based on all the evidence that we’re able to gather. Most perpetrators will never admit it. They can say only really two things. One, “It never happened,” or number two, “Yeah, it happened, and it’s consensual; we’ve been having an affair for years; this is not unwelcome sexual conduct.”
But by and large they say: “No, it never happened. Maria’s just a liar; she’s making it up; she’s just a poor performer” — those kind of statements. And so we have to gather all of this information; then we’ll make credibility assessments. Whose story seems to make more sense?
… Why should we care?
I think the population should care because as long as there’s a part of our society that’s totally exploited and extremely vulnerable, it brings down the values of the country, number one. And number two, it allows perpetrators to be able to operate in an industry without ever fearing any punishment for harassing women. …
Why do you care about this?
… My father started out as a farmworker in Hawaii. I am fully aware that the industry, agriculture, going back to the plantation days has been a place where workers’ rights were not protected, and now we have the opportunity to do so.
We have laws. We have an agency that can provide protection to some of the most vulnerable workers. If we don’t do it, then people who do sexual assault can just keep practicing what they want to do without any fear. Then we destroy a lot of women, a lot of families; we destroy a lot of children’s lives. That’s what’s at stake as a society.
So personally, particularly when I’ve worked with these women and get to know their lives, these are victims that our society needs to protect. I feel very fortunate as a civil rights lawyer to be in government to use the resources and have the imprimatur of government to be able to help these victims.
But there’s lots of civil rights lawyers out there in private practice who bring class-action suits and other suits. Are they doing it in this case? Why do they need the government to do it?
Because we actually don’t have a lot of private attorneys who want to do these cases, or who [are] doing them. Right now these women are in agricultural, geographically isolated areas. They don’t speak English; they don’t have any money to advance to pay for any expenses. So largely it falls on law enforcement and the public interest organizations like California Rural Legal Assistance, Oregon Law Center, Northwest Justice Project up in Yakima, [Wash.], these types of organizations, to come forward.
By and large, farmworkers are poor. Their average wage is less than $10,000 a year. They’re not going to be able to afford lawyers. Most of these cases are not large class-action [suits]. Some are, but some aren’t. They’re very small, and you’re not going to get a lot of private attorneys to do the case. …
How is this going to change?
I ask myself that all the time, because even though there’s laws against murder, murders are still committed. There’s laws against rape; rapes are still committed. And the tools we have at our disposal are the criminal prosecutions, the civil prosecutions.
But it’s a culture change on two levels. One is to make sure that the victims know that this stuff is illegal, that they can come forward, and that they can complain. But number two, and probably more importantly, is the industries that control the conditions of work have to make it clear that sexual harassment is not going to be tolerated. And that means not just having policies but actually implementing them, and once they find out about the stuff, properly investigating and terminating the people who are doing this. As long as perpetrators feel they’ll never get punished, then the culture hasn’t changed.
It is a culture change. It’s no different from when it was OK for companies to deny somebody a job because he’s black, deny a promotion because she’s a female, those kind of things. We’ve come forward as a society, we’ve made a lot of progress in that area, but unfortunately the EEOC still gets 100,000 charges of discrimination every year. And sexual harassment continues to be a main problem. …
It’s going to happen gradually, hopefully, but I think it still is up to companies. How much are they going to tolerate, and who are they going to punish in a timely way and take this promptly?
I think one of the issues, … when you get an allegation of sexual harassment, if Maria goes to human resources and says, “Joe just assaulted me in his office; he grabbed my breast, he said he wanted me, tried to kiss me here, and so forth, and has been propositioning me,” sometimes the response from human resources is: “Well, we interviewed Joe, and Joe denied it. It doesn’t make sense to us because Joe hired [you,] Maria, and he’s a family man, and he goes to church, and we have no reports of him ever sexually harassing anybody else.”
So I say, contrast this with Maria runs into human resource and says, “Joe has a gun in the back there, and he just shot somebody.” What would human resources say? “Are you sure, Maria? Joe’s a family man. We’ve never seen him shoot anybody else before.”
It’s the nature of the complaint. And this is the whole thing about gender, discrimination and stereotypes and going after the victim, where it presumes that if there’s an allegation of sexual harassment, it must not be true.
And you have supervisors or HR people say, “I interviewed Joe, and I interviewed Maria, and I couldn’t make heads or tails, and she said this and he denied this, so I just told him, just be good.” And my conclusion is: “You said Maria’s a liar. You don’t believe her. What else do you expect Joe to say? He did it? Of course he wouldn’t.”
So this is another area where we try to train companies on how do you investigate these cases properly so that you can assess the credibility of Maria and Joe the right way, so that you can make a finding and say, “Yeah, we think harassment occurred,” and then fire Joe or suspend Joe, whatever, so that you can deter it from ever happening again.
… Do you think that at some point the federal government will get involved on the level of, let’s say, the Justice Department or the Civil Rights Division?
I think if there’s allegations of [human] trafficking, that may implicate some of the federal statutes. … But these things like rape, those are state crimes that should be prosecuted by the attorney general’s office, county prosecutors and so forth.
I’m hoping that these prosecutions will in fact happen, but we’ll have to see, because again, many of these women won’t come to the EEOC right away after a rape. It’s going to take them a long time, and I can understand that maybe some local DA doesn’t want to take a case where jeez, it’s over a year old; it may be hard to establish.
And I understand. District attorneys have to establish that a crime happened beyond a reasonable doubt. Mine’s just the 51 percent standard, so it’s a lot easier than for criminal prosecutions.
There’s no rape kit? There’s no evidence, no hospital? She can go to the hospital.
Half the time women don’t go to the hospital. They don’t report it. That’s the English-speaking women in the urban areas. And now we’re dealing with farmworkers in rural areas who don’t speak English — even less likely — where there may not be any medical services, or free medical services, for them. So it’s a big challenge to get it done.
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