What Are the Potential Employment Claims/Remedies?

When farmworkers are sexually assaulted— regardless of whether the sexual assault is work-related—there are many ways in which victims’ employment may be adversely affected. Victims may need modified work schedules, changes in job duties, transfer or termination of the perpetrator, and/or time away from work to participate in legal proceedings or to seek medical care, mental health care or a protection order. However, employers are often unwilling to make such accommodations for farmworkers.

Federal and state employment laws and related laws can provide various remedies to victims of sexual assault. If the sexual assault occurred during work hours or if the supervisor or a co-worker was the perpetrator, for instance, the sexual assault will likely be a form of sex discrimination that may be protected by Title VII of the Civil Rights Act or state antidiscrimination laws. Discrimination claims offer remedies such as protection against further harassment and retaliation, financial recovery for lost wages and emotional harm, reinstatement of employment if the victim has been fired, and protected leave time to access services.

Some laws require that employees file claims with administrative agencies like the U.S. Equal Employment Opportunity Commission (EEOC) before proceeding in court. Other times, a collective bargaining agreement might impact how an employee should proceed. Very few farmworkers are unionized however, in part because farmworkers are excluded from coverage under the National Labor Relations Act. It is important to note that most of the laws mentioned below apply to both documented and undocumented workers, though the remedies may vary.

While many laws exist to protect employee victims from retaliation for exercising their rights, retaliation is a very real problem. For example, over 30% of all recent sexual harassment claims made to the EEOC incorporated a retaliation claim.19 Given the reality of retaliation, many farmworkers are afraid to exercise rights afforded them by law. Lawyers must educate themselves about retaliation and be prepared to defend farmworker victims who suffer adverse effects of retaliation.

The following are some of the potential employment law claims if the sexual assault arose in an employment context:
Title VII of the Civil Rights Act of 1964 or similar state anti-discrimination laws: Onthe- job sexual harassment—including sexual assault—is a form of sex discrimination. Such a claim can be filed in either state or federal court, but victims may be required to first exhaust the administrative remedies with the EEOC or similar local or state agencies. The agency will conduct an investigation and/or will give you a “right to sue” letter which allows you to file the claim in court. Farmworkers are protected from sex discrimination regardless of whether the harasser/assailant is the owner of the company, co-worker, supervisor, customer or subcontractor. Among other remedies, a court or the EEOC can order the employer: a) to take immediate steps to protect the farmworker from additional harassment; b) pay the employee lost wages; c) reinstate the worker if s/he has been fired; and d) train supervisors and other personnel regarding sexual harassment. Title VII applies when the employer has 15 or more employees; state laws may cover smaller employers.

Form good working relationships with your local EEOC and state agency offices. Offer to train agency staff on issues related to the unique needs of farmworker victims of sexual assault.

Wrongful Termination in Violation of Public Policy and Other Torts: These state laws provide protection from being terminated for a reason contrary to public policy, even in an at-will employment situation. Examples of activities protected by public policy may include an employee opposing or complaining about sexual harassment or an employee taking time off work to obtain a protective order. Other state torts that may apply are intentional infliction of emotion distress, assault and battery, false imprisonment, and negligent hiring or retention. Tort laws vary by state and their application is very fact specific; some tort laws are applicable regardless of whether the assault occurred on or off the job. If your organization is restricted from pursuing tort claims, for example as a recipient of OVW funding, make an appropriate referral.

Workers’ Compensation: The vast majority of states have laws that provide an employee with medical treatment, compensation and other benefits if employees are injured in the scope of their employment. In some states, these laws cover physical and emotional injuries caused by violence at the workplace or during the course of the employment. These laws vary widely by state.

Occupational Safety and Health Laws: Though infrequently used in the sexual harassment and sexual assault context, employers may be liable if they failed to take proper measures to maintain a safe workplace. This may include when an employee or other person commits an act of violence at work and the employer takes no action to prevent the dangerous condition. Complaints may be made to the Occupational Safety and Health Administration of the U.S. Department of Labor or similar state agencies; in some states, claims can be filed directly in the courts.

Other laws protect the employment rights of employees regardless of where the sexual harassment or assault occurred:
Family Medical Leave Act and similar state leave laws: The Family Medical Leave Act (FMLA) provides workers up to 12 weeks of leave if they or an immediate family member suffer from a “serious health condition,” including both physical and mental health conditions. FMLA permits employees time away from work to recover and to receive treatment for mental and physical injuries stemming from the violence. FMLA applies when employees have held their job for at least one year, have worked at least 1,250 hours during the last year, and the employer has at least 50 employees within a 75- mile radius of the workplace.

Americans with Disabilities Act (ADA) and similar state disability laws: The ADA provides protections to those individuals who have a “disability,” which is defined, in part, as an impairment that substantially limits one or more major life activity. A disability does not have to be permanent for the ADA to provide protection. An employee with a qualifying disability is entitled to reasonable accommodations. This may include changes in work schedule, tasks and conditions that enable the employee to remain employed. These accommodations can be helpful to a victim of sexual violence who has a physical disability or mental disability such as post-traumatic stress disorder. Additionally, an employee with a qualified disability cannot be harassed, fired or discriminated against as a result of the disability. If there is a violation of the ADA, a charge must be filed with the EEOC in order to exhaust administrative remedies before filing a claim in civil court. Be sure to check your state law, which may provide greater protections regarding disabilities.

Leave for Victims of Crimes: Many states provide job-protected leave to: a) victims or witnesses to crimes who must appear in criminal court; b) victims of sexual assault or domestic violence who need time off work to seek a restraining or protection order; and/or c) victims of sexual assault or domestic violence who need time off work to seek medical, psychological or other treatment or counseling. Laws vary widely, so be familiar with the laws in your jurisdiction.

Workplace Protection Orders: While not available in all states, some states have laws that allow sexual violence victims to request restraining or protection orders against the harasser. This prevents the harasser from coming within a particular distance of the victim’s person, home, family, place of employment and vehicle.

State Anti-Discrimination Laws Protecting Victims: A promising example to other states, a few states now have laws that prohibit discrimination and retaliation against an employee who is a victim of sexual assault.

Other sources of compensation for victims of sexual violence may include:
Unemployment Benefits: If a worker is terminated without cause, a documented employee has the right to claim unemployment benefits. Your state employment office or its website can provide information regarding the process and qualifications required to apply for such benefits.

Social Security Disability Insurance (SSDI): SSDI pays benefits to individuals who cannot work because they have a medical condition that is expected to last at least one year or result in death. Similar state laws may provide broader protections.

Supplemental Security Income (SSI): SSI is a federal income supplement program that is designed to help aged, blind, and/or disabled people who have little or no income. The program is designed to provide cash to assist documented individuals with basic needs of food, shelter and clothing.

Crime Victim Compensation: Most states have a crime victim compensation fund or program that can be used to pay for expenses related to the crime, including medical bills, counseling expenses, travel reimbursement and, in some cases, even lost wages. Some states require recipients to be legally present in the United States, while others do not.

Conduct careful intakes. Organizations that routinely assist farmworkers with employment issues should carefully screen farmworkers for sexual harassment and sexual assault. Victims may be seeking assistance because they were fired and are wondering what legal recourse they have. Only through careful questioning will you discover the underlying reason for the termination was, for example, refusal to exchange sex for work. Again, if sexual assault or harassment is revealed, refer victims to employment law and/or farmworker attorneys.

Exercise

  • What laws exist in my state that protect farmworker clients, such as anti-discrimination, disability, workers’ compensation, medical leave, leave for victims of crime, and workplace protection orders?
  • What training is available regarding employment rights of sexual assault survivors?
  • How can my state’s crime victim compensation fund/program be used by farmworker victims of sexual assault?
  • Which employment remedies require that my client be documented?