11/2010

Section Three: Sexual Violence: A Constant Menace

Olivia came to the U.S. from Mexico to escape an abusive relationship. “I suffered a lot with my husband,” she says. “It was a lot of mistreatment and beatings.”

But what the 46-year-old meatpacking worker experienced in this country was a greater horror that haunts her still.

Early one morning, after a 12-hour shift, she found her car buried beneath a heavy Iowa snowfall. As she waited there with a co-worker, one of her supervisors came walking toward her. The women were both wary of the man. He frequently made unwanted and obscene sexual advances inside the plant where they worked and was growing more aggressive. “I’m getting out of here because that dirty old man is coming,” Olivia’s co-worker said as she slipped away.

The supervisor invited Olivia to climb into his truck, assuring her that he would be a gentleman.

“It was 3 a.m., and there was a lot of snow and he started saying things to me, for me to go with him, to sleep with him,” Olivia recalls. She refused and insisted that he go away.

Olivia was fed up and tired. The work at a meatpacking plant was difficult. Adding a steady torrent of sexually explicit and belittling comments made the job nearly unbearable. She had had enough. “I told him ‘no,’ and I threw down my lunch.”


Farmworker women, like the woman shown here pruning grape vines in California, are particularly vulnerable to sexual violence and discrimination.

His viciousness caught her by surprise. The supervisor punched her in the face. Olivia crumpled. Dazed, she fought back, but the supervisor’s powerful arms kept her pinned. He grabbed and tore at her clothing. A pick-up truck approached and shined its headlights. “Hey, what’s going on?” the driver asked in English. The supervisor responded in English. The driver, apparently satisfied, drove away.

The man tightened his grip and struck her in the head. Olivia slumped over and passed out. When she awoke, she saw the tracks left in the snow as she was dragged to a nearby bench. Still in a fog, Olivia was vaguely aware that her pants had been removed. The supervisor raped her.

During the attack, Olivia lost consciousness again. When she awoke, Olivia was alone. She noticed a crumpled $20 dollar bill nearby on the ground. She dressed and stood up. That’s when she first became aware of the excruciating pain. She made her way home.

“I saw that my pants had a lot of blood,” she recalls. “My mom asked what it was, but I didn’t want to tell her. I went to bed and didn’t say anything. I don’t even want to remember it.” She sought medical attention the next day. The doctor, who spoke Spanish, was alarmed by her injuries and encouraged her to report the attack to the police. She refused. “No, I was scared of the police,” she says. “And I was scared of [the attacker].” She gave up on seeking justice in hopes of finding a little peace.

Returning to work was difficult.

She tried to report the attack to upper management, but her complaints were met with indifference. “What is so bad about that,” another supervisor asked Olivia. “He left you in one piece, didn’t he?”

She responded the way many undocumented immigrant women do when faced with similar circumstances: She stayed on the job. “I had a lot of need, and if I didn’t go to work, what would I do? I had to pay a lot of rent, many bills, my sick daughter, my sick parents who depend on me.”

Olivia buried the pain and shame of the attack. It wasn’t until recently that she sought out therapy. Her counselor did not believe the extent of the savagery until Olivia provided a medical report.

Undocumented immigrant women like Olivia are, in most cases, virtually powerless to protect themselves against such attacks. They do not know their rights. They often fear, quite rationally, that reporting abuses will lead to job loss and, in some cases, deportation and separation from their children. Some feel too much shame to report harassment or sexual violence, leaving them extremely vulnerable to exploitation by male co-workers or supervisors. Often, they are faced with threats of firing or offers for jobs in exchange for sex. Their abusers use their lack of legal status against them, knowing they are not likely to report sexual harassment or even violent attacks.

Because of the many obstacles arrayed against them — fear, poverty, shame, lack of access to legal resources, language barriers, immigration status and cultural pressures — few immigrant women ever come forward to speak out against the wrongs committed against them. Too often, they are forced to compromise their dignity — to endure sexual harassment and exploitation — to obtain a better life and a measure of economic security for themselves and their families.

“People can take advantage because they know that you don’t know the language,” says Carmen, a farmworker in upstate New York. “And they know that as an illegal, we’re afraid.”


Farmworker women often cover their faces with bandanas to protect themselves from pesticides and the weather, but also to ward off unwanted sexual advances.

 

 

 

 

 

 

 

 

 

 

 

 

 

‘Perfect Victims’
Sexual predators view farmworker women and other undocumented women as “perfect victims” because they are isolated, thought to lack credibility, generally do not know their rights, and may be vulnerable because they lack legal status. Often, the perpetrators begin the harassment by grooming the women through suggestive comments or unwanted compliments. They may attempt to scare the women, wear them down and further isolate them until the perpetrator is in a position to commit a sexual assault or rape.

There has been little research on the extent of sexual harassment and abuse of undocumented immigrants. But the anecdotal evidence and the few studies that have been conducted suggest that sexual harassment and violence — including offensive comments, grabbing and touching, humiliation and repeated inappropriate propositions — is rampant.

A majority of the women interviewed by the Southern Poverty Law Center said they endured some sort of sexual harassment that, at times, rose to the level of sexual assault while working in the fields, packinghouses or processing plants.

Many, however, were not even familiar with the concept. As less acculturated immigrant women, they struggled to understand the notion of sexual harassment, let alone grasp the means and methods of reporting an incident. Indeed, many were not aware of their rights and seemed to regard incidents of sexual harassment and sexual violence as yet another unpleasant aspect of their job that they had no choice but to endure.

Maria, a 30-year-old farmworker in Florida, says she is filled with anger when she thinks about all the sexual harassment she has suffered. “I really didn’t know [what sexual harassment was],” she says. “If I would have known about it, I would have [reported it].”

Many of the Latinas, ingrained with the culturally reinforced idea that a woman shares blame if she is sexually victimized, expressed bafflement when they found themselves the target of sexual harassment.

Maria, a 57-year-old field worker from Oaxaca, Mexico, who picks grapes and strawberries in California’s Central Valley, says she could not understand why a certain supervisor kept touching her inappropriately while she was going about her job.

“Well, I felt bad,” Maria says. “I felt bad because I didn’t know why he would do that to me. When you don’t give him a reason, he shouldn’t abuse a person.”

Genoveva, a 27-year-old farmworker in California who has picked grapes, peppers, asparagus and other produce, worked for a man who offered her $500 for sex and often made her uncomfortable with his lecherous stares. The supervisor, who drove a van, also happened to be her only means of reaching work. She hated the unwanted attention but never spoke up. She felt relieved when she found another means of transportation.

“I felt depressed, I felt like leaving that job,” she says.

Alina Diaz is an advocate for farmworker women in upstate New York. She travels to labor camps armed with Spanish-language information on sexual harassment, rape and violence. She says sexual harassment is a fact of life for many Latina farmworkers, who are among the poorest and most easily exploitable workers in America.

“It’s very serious,” Alina says. “The women complain a lot that the crew leaders and supervisors, even the contractors [harass them]. For [the women], it’s hard to talk about this. They’re ashamed or afraid that someone will say they asked for it or said something to provoke it.”

This problem, of course, also affects farmworker women who are U.S. citizens or have legal status. But most farmworker women do not have legal status, and that makes them even more vulnerable than farmworkers who are legal. The federal government estimates that 60 percent of farmworkers are undocumented immigrants; advocates say the percentage is far higher. Most studies show that about 25 percent of farmworkers are women.

While investigating harassment of farmworker women in California in the mid-1990s, the U.S. Equal Employment Opportunity Commission (EEOC) found that “hundreds, if not thousands, of women had to have sex with supervisors to get or keep jobs and/or put up with a constant barrage of grabbing and touching and propositions for sex by supervisors.”53

In Salinas, Calif., a worker told the EEOC that farmworkers there referred to one company’s fields as the field de calzon, or “field of panties,” because so many women had been raped by supervisors there.54 In Florida, women farmworkers dubbed fields “the green motel” for the same reason. In Iowa, women said they had encountered the problem so often that they believed it was a common practice in the United States to exchange sex for job security.55

More recently, a study published in January 2010 found that among 150 Mexican women and women of Mexican descent who were working in the fields of California’s Central Valley, 80 percent said they had experienced some form of sexual harassment.56 That compares to roughly half of all women in the workforce who experience at least one incident.57 Virtually all of the women in the California study who reported sexual harassment said they also experienced sexist comments and degrading insults.58

The 2010 study cited a confluence of factors — including extreme poverty, language barriers and discrimination based on race, class and gender — that make farmworker women extraordinarily vulnerable to sexual abuse. It also cited the nature of farm work as a major factor. Not only are farmworker women dependent almost entirely on men for their continued employment, their assignments and the evaluation of their work, they often are assigned to work in isolated orchards or fields far from co-workers. Further, the nature of the work, the continuous stooping necessary to pull weeds from tomato fields or pick crops such as strawberries, lettuce and broccoli make the women susceptible to “sexual stares, verbal comments and unwanted grabbing.”59

“No one sees the people in the field,” says Virginia Mejia, a 59-year-old farmworker from Mexico who worked in the California vineyards. “We’re ignored. You have to let them humiliate you, harass the young girls just entering the field. Imagine, they have no protection. You allow it or they fire you.”

The EEOC filed suit against a company called Rivera Vineyard on behalf of Mejia and 56 other women, claiming sexual harassment, retaliation and sex discrimination. The company denied the allegations but settled for $1.1 million in 2005. Mejia lost her job and was blacklisted by the industry.

While sexual harassment in other parts of the U.S. food industry, including the meatpacking industry, has been studied even less than in agriculture, anecdotal evidence, the growing presence of undocumented Latinas in meatpacking plants and a few high-profile cases suggest that the problem in the factories rivals that of the fields.60

Few lawsuits brought by immigrant women
In terms of taking legal action to stop abuses or to hold abusers and their employers accountable, the odds are stacked against these women. Very few lawsuits have been brought by farmworker women or other undocumented immigrant women.

It wasn’t until more than 40 years after the Civil Rights Act of 1964 was enacted that a farmworker woman had her case heard before a federal jury. That was a lawsuit brought by the EEOC on behalf of Olivia Tamayo, a migrant farmworker from Mexico who spent 25 years picking crops for Harris Farms in California’s Central Valley.

In a 2005 trial, Tamayo told the jury she was raped repeatedly by a supervisor who threatened her with a knife and gun and said he would kill her husband if she told him. She tried to tell a deputy sheriff, but a company representative intervened, and no criminal charges were ever filed.61 The EEOC said she was subjected to repeated verbal sexual harassment and intimidation, sexually offensive and threatening gossip from co-workers, and retaliation from the company, including suspension after she reported the harassment. Eventually, she was forced to resign. The jury awarded her nearly $1 million in lost wages and other compensatory and punitive damages. The decision was upheld by the 9th U.S. Circuit Court of Appeals in 2008.62 To date, Tamayo’s case is the only one to reach a federal jury.

Ultimate responsibility for sexual harassment rests with employers. Employers do not have free rein to discriminate against employees simply because they are not legally eligible to work in the United States. The belief that undocumented women who are victims of sexual harassment or sexual violence, or gender discrimination, are not entitled to relief, in fact, flies in the face of the great weight of law under Title VII of the 1964 Civil Rights Act. Similarly, some states afford protection against sex discrimination that is parallel to and, in some cases, more extensive than Title VII.

In one precedent-setting decision, for example, the U.S. Supreme Court held in 1984 that an employer violated the National Labor Relations Act by firing undocumented workers because of pro-union activities, even though immigration laws made them ineligible to work in this country.63

When considering Title VII discrimination, courts have likewise consistently held that the same rationale applies to protect undocumented workers from discrimination.64 Thus, there is no question that undocumented immigrant women who have been sexually harassed are protected by Title VII and that their immigration status (and that of any witnesses) is irrelevant to establishing whether they have brought forth legitimate claims of discrimination.


A jury awarded Olivia Tamayo $1 million in lost wages and other damages in the only sexual harassment case brought by a farmworker to reach a federal jury.

 

 

 

 

 

 

 

 

 

 

 

 

In recent years, however, employers have been emboldened by the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB in 2002.65 Hoffman essentially found that undocumented workers who complained (under the National Labor Relations Act) and experienced retaliation for supporting a union may not receive pay for lost work when they sue. This perverse ruling provides an enormous incentive for employers to hire undocumented workers — and little incentive for employers not to abuse them.

Of course, having rights in the workplace, on paper, and having the ability to exercise those rights are different matters entirely. Many of the women interviewed for this report said that, as a practical matter, it was best to remain silent. Their overriding concern is their precarious economic and legal status. The women know their low-paying jobs are hanging by a thread, and the prospect of deportation hangs over their heads like the sword of Damocles.

Fear of the police
When sexual harassment crosses the line into sexual violence, it becomes a matter for not only the civil courts but the criminal justice system. But many of the women interviewed said they were in no position to report crimes, primarily because of their fear of being deported, even as crime victims.

Their fears seem well-justified.

There are no legal protections to stop law enforcement officials from turning crime victims — even victims of rape — over to the U.S. Immigration and Customs Enforcement (ICE). The SPLC is aware of several cases in which female crime victims have been deported and several cases in which victims of trafficking were prosecuted by both state and federal law enforcement entities instead of being protected when they stepped up to complain.

Another chilling factor is 287(g), the provision of federal immigration law that was created to help immigration authorities capture criminals who threaten the community or national security. It allows local law enforcement officials to check the immigration status of suspects who are arrested and to turn undocumented immigrants over to federal authorities. As of October 2010, the government had such agreements with 72 law enforcement agencies in 26 states. According to the Department of Homeland Security (DHS), the program is credited with identifying 173,000 “potentially removable aliens,” mostly at local jails, since the beginning of 2006.66

But though it was intended for criminals, 287(g) has been used by many localities as a cudgel against otherwise law-abiding, undocumented immigrants. Minor traffic stops, for example, can result in detention, deportation and instant separation from children and other family members.

A report released in March by the DHS inspector general shows how the program has been abused by local law enforcement agencies. Out of 280 cases examined, only 9 percent (26 immigrants) involved immigrants convicted of or arrested for crimes such as murder, rape, robbery or major drug offenses — crimes that make these cases the highest priority for ICE.67 This is not only a serious failure and waste of resources but a prescription for more crime in our communities. When the SPLC surveyed low-income Latinos in two areas with 287(g) agreements in 2009 — Nashville and Charlotte — it found that most were reluctant to cooperate with police because of these agreements.68

In May 2010, U.S. Attorney General Eric Holder met with 10 top police chiefs from around the country about Arizona’s new immigration law, which requires police to determine the immigration status of anyone they stop and suspect is in the country illegally. The chiefs told Holder that local law enforcement efforts are seriously hampered by such laws. “If people don’t come forward to help the police solve and protect against crime, no matter what their status, then we are doomed to failure,” Los Angeles Police Chief Charlie Beck said. “It threatens to destroy a lot of the work that has been done.”69 The Justice Department has since filed a federal lawsuit to overturn the Arizona law, saying it unconstitutionally usurps federal authority, disrupts immigration enforcement efforts and would lead to police harassment of those who cannot prove their legal status. At least five other suits have been filed as well, mostly by civil rights groups that claim the law promotes racial profiling.

A rapist goes free
Even in areas without 287(g), the fear of police in immigrant communities can be pervasive and devastating. In 2007, for instance, the SPLC was contacted by a Latino family in south Georgia after a 13-year-old girl had been raped by a man known to the family. The local prosecutor said he would be willing to prosecute the suspect but added that he felt obligated to report the girl to immigration authorities if he discovered she was undocumented.

The family decided not to pursue the case. The rapist went unpunished.

Alina, the farmworker advocate in New York, said that in addition to fear of deportation, there are other reasons — including language barriers and police indifference — that explain why women don’t report crimes. “Sometimes, the police call immigration,” she says. “Or the officer who comes doesn’t have training in domestic violence or sexual violence. They view these women as disposable. Because they’re immigrants with no documents, they’re not human.”

Victims of domestic violence, sexual assault, human trafficking and other crimes are eligible for temporary legal status under the U visa program created by Congress in 2000. The program however, has been plagued with problems. It took eight years for the federal government to issue the first U visa. By the end of 2008, it had issued just 65, even though about 13,300 people had applied, an investigation by the Los Angeles Times found.70

Under the Obama administration, the program has been revived. But that has led to a different problem: By July 2010, the government had issued all 10,000 U visas available for the 2009-10 fiscal year.71

In addition, U visas don’t protect victims of every crime. For example, the statute under which they were created — the Victims of Trafficking and Violence Protection Act of 2000 — may offer little protection for workers who experience wage theft or other types of abuse on the job.

More importantly, very few victims of crimes are aware of this potential remedy. Instead, they often endure horrendous abuse, believing that they have little choice.

The SPLC is aware of at least one case in which recipients of U visas were actually prosecuted for possessing false documents when they came forward to report serious abuse on the job. These actions severely undermine systems created to protect vulnerable workers.

Unfortunately, all of these factors combine to leave undocumented immigrant women facing a terrible dilemma: Be silent and further embolden their abusers, or speak up and risk having their lives and families shattered.

“You feel a lot of stress because [the abuser] is someone who has authority,” said Carmen, the farmworker from upstate New York. “At that moment, you say … what do I do? You doubt yourself. You don’t know what to do. If I tell him this, what if he does something so I get fired? So sometimes you stay quiet and don’t do anything.”


53 Maria Ontiveros, “Lessons from the Fields: Female Farmworkers and the Law,” 55 Maine Law Review, 157, 169. (2003).

54 Ibid.

55 Rebecca Clarren, “The Green Motel,” Ms. Magazine, Summer 2005, 42.

56 Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women,” Violence Against Women, January 2010, 8.

57 NiCole T. Buchanan and Carolyn West, “Sexual Harassment in the Lives of Women of Color,” Handbook of Diversity in Feminist Psychology, Landrine & Russo, editors, Springer Publishing, 2009, and Oregon State University website: http://oregonstate.edu/sexualassault/statistics-1.

58 Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women,” Violence Against Women, January 2010, 11.

59 Ibid.

60 Amanda Clark, “A Hometown Dilemma: Addressing the Sexual Harassment of Undocumented Women in Meatpacking Plants in Iowa and Nebraska,” Hastings Women’s Law Journal, Winter 2004, 16 Hastings Women L.J. 139.

61 Tyche Hendricks, “$1 Million Verdict for Woman in Sex Harassment Case Upheld,” San Francisco Chronicle, April 25, 2008.

62 “Sexual Harassment Verdict Upheld in Favor of EEOC Against AG Industry Giant Harris Farms,” U.S. Equal Employment Opportunity Commission press release, April 25, 2008.

63 Sure-Tan v. NLRB, 467 U.S. 883, 891-94 (1984)

64 See e.g. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517-18 & n.11 (9th Cir. 1989) (undocumented workers are covered by Title VII) overruled on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283 (1998); Rios v. Enterprise Ass’n Steamfitters Local, 860 F.2d 1168, 1173 (1988) (“the protections of [Title VII] must apply to undocumented workers”); EEOC v. Switching Systems Div. of Rockwell International, 783 F. Supp. 369, 374 (N.D. Ill. 1992) (EEOC is “plainly correct that Title VII’s protections extend to aliens who may be in this country legally or illegally”); EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 585, 587-90, 594 (E.D. Cal. 1991) (aliens, whether documented or undocumented, enjoy the protections of Title VII).

65 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

66 “Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” U.S. Immigration and Customs Enforcement, http://www.ice.gov/news/library/factsheets/287g.htm, accessed Oct. 8, 2010.

67 “The Performance of 287(g) Agreements,” U.S. Department of Homeland Security, Office of Inspector General, March 9, 2010.

68 Mary Bauer, “Under Siege: Life for Low-Income Latinos in the South,” Southern Poverty Law Center, April 2009. www.splcenter.org/getinformed/publications/under-siege-life-for-low-income-latinos-in-the-south

69 Richard A. Serrano and Kate Linthicum, “Justice Department Poised to Challenge Arizona Immigration Law,” Los Angeles Times, May 27, 2010.

70 Anna Gorman, “Victims’ U-Visa Program Falters; Illegal Immigrants Who Help Law Enforcement Officials Are Eligible, But Few Receive Them,” Los Angeles Times, Jan. 26, 2008.

71 Suzanne Gamboa, “All 10,000 Crime Victim Visas Issued for This Year,” The Associated Press, July 15, 2010.