Written Testimony of Victoria Mesa-Estrada Partner, Mesa & Coe Law, P.A.

Meeting of April 15, 2015 - EEOC at 50: Confronting Racial and Ethnic Discrimination In the 21st Century Workplace

Good morning Madam Chair, Commissioners and General Counsel, it is a great honor to be here today. Thank you for the opportunity to address you regarding the very important topic of combating Racial and Ethnic Discrimination in the 21st Century Workplace.

My name is Victoria Mesa-Estrada. I am a partner with the law firm of Mesa & Coe Law, P.A. located in Palm Beach County, FL. Our firm represents low-wage workers in employment matters, including discrimination and wage theft. Prior to my recent private bar involvement, I worked for 5 years as staff attorney for the Migrant Farmworker Justice Project at Florida Legal Services, providing legal representation to migrant farmworkers and guestworkers through individual and class action litigation in federal and state courts.

First, I will like to address some general perceptions and current experiences of discrimination among Hispanics and how these are reflected in today's workplace:

As you know, Hispanics are the nation's largest minority group and among its fastest growing populations. At nearly 23 million, people of Hispanic or Latino ethnicity represented 15 percent of the U.S. labor force in 2011. By 2020, Latinos are expected to comprise 19 percent of the U.S. labor force.¹ However, according to a Pew research poll, Latinos are the 2nd most discriminated against ethnic group after African-Americans.²

Some national polls have indicated perceptions of discrimination among Hispanics are related to their national origin, to language usage patterns and to socio-economic status. A separate national survey by PEW Research Center revealed that 58% of Latinos say that discrimination in the workplace is a major problem, an increase from 41% in 2002. Here, too, the concern is even larger for the foreign-born, 65% of whom describe it as a major problem.³

In the workplace, discrimination is more likely to be seen as recurrent problem by Hispanics who have less than a college education, compared with those who have more education, and by those who are unemployed, compared with those who are employed. Hispanics who were born in the United States, and especially those whose parents also are native born, are less likely to perceive a problem than are foreign-born Hispanics.⁴ Similarly, 16% of Latinos report that at some time in their lives they were not hired for a job or were denied a promotion because of their race or ethnicity.⁵

BARRIERS TO COMBAT EMPLOYMENT DISCRIMINATION AMONG THE HISPANIC COMMUNITY

My experiences as a legal services attorney and a foreign-born Latina have exposed me to many situations where workers were undoubtedly mistreated and discriminated against because of their race or ethnicity. Certainly, representing vulnerable populations such as farmworkers has raised my awareness about the challenges in identifying Title VII violations, and when these are found, the difficulty in bringing charges forward to the EEOC or state agencies.

Agricultural workers-

Hispanic workers continue to be the majority of the agricultural workforce. Since the 1990s, Indigenous groups from Mexico have been migrating to California, Florida and other states in large numbers as many of the traditional monolingual Spanish-speaking agricultural workers have transitioned into other industries such as construction and hospitality. In a survey that tracked the most common complaints filed by indigenous farmworker employees, results showed that 28.8% of the indigenous farmworkers polled were underpaid or unpaid and 25.4% felt discriminated against and unable to complain due to language barriers.⁶ A study conducted in California concluded that indigenous farmworkers, when compared to mestizo or Latino farmworkers, often have lower wages, more dangerous working conditions and speak less English (and Spanish).⁷ In terms of wages, the indigenous farmworker earns significantly less than non-indigenous farmworkers. A community survey of 225 individuals concluded that after working 9+ years in the United States, the indigenous farmworker still earns only on average $8.25 an hour.⁸

Changes in migration patterns in the U.S. have also resulted in an increase in the number of workers recruited overseas to peform agricultural jobs. Through the U.S. Department of Labor H-2A foreign temporary program, agricultural employers are allowed to hire workers from certain foreign countries on temporary work permits for agricultural jobs that last ten months or less. As the EEOC is aware from past litigation involving H-2A workers in Hawaii, workers under the H-2A program are very vulnerable to workplace abuse and discrimination, including claims of denial or delay of pay; human and civil trafficking; disparate treatment policies such as production quotas that U.S. domestic workers need not adhere to; lack of access to adequate food and water; and unsanitary, overcrowded living conditions.⁹

Sexual Harassment-

A 2009 Southern Poverty Law Center report revealed that Latina women in the South face the same workplace challenges that other Latinos face. However, in addition to the other difficulties - wage theft, injuries, discrimination on the basis of race and ethnicity, and retaliation - they suffer high rates of sexual harassment and crime victimization.¹⁰  Women were far more likely to report they believe women are the victims of discrimination at work - 72 percent versus 48 percent of men and 77 percent of women said sexual harassment was a major workplace problem.¹¹ For indigenous farmworker women, this problem is exacerbated by their inability to communicate in a language in which they can be understood, in addition to the cultural shame they feel for discussing these issues with men or someone from outside their own culture.¹²

Case jurisprudence undoubtedly confirm that there is a climate of rampant verbal sexual harassment, rape, stalking, unwanted touching, exhibitionism, or vulgar and obscene language by supervisors, employers, and others in positions of power in agriculture. Most female farmworkers do not report these or other workplace abuses, fearing reprisals against themselves of other family members. Those who had filed sexual harassment claims or reported sexual assault to the police had done so with the encouragement and assistance of survivor advocates or attorneys in the face of difficult challenges. For example, in a 2014 case filed by the EEOC Regional office in Miam in 2014- EEOC vs. Moreno Farms- five women who were victims of sexual harassment and/or rape by the packinghouse's manager and supervisor reported these events to local law enforcement agencies identifying by name their perpetrators. To this day, no criminal action against these men has been taken. In addition, the delays in the EEOC investigation which lasted over two years and 3 months resulted in the defendant's closure of the company, leaving the charging parties with limited possibility of receiving civil damages for what they suffered.

When employers do in fact receive complaints by female farmworkers related to sexual harassment, many of these claims are treated as "horseplay" or dismissed as meritless claims where the harasser is not reprimanded in anyway.

Interethnic discrimination-

As an Hispanic woman who grew up in south Florida and who shares common characteristics such language, accent and the "immigration" experience with a large segment of the South Florida population, I have personally witnessed how Latinos have become the victims or agents of individual disparate treatment discrimination in the workplace. This potpourri of hispanic cultures, with socio-economic and ethnic experiences so particular of Latin America and the Caribbean have clearly impacted our way we conduct business in the U.S. and how we interact with other individuals in the workplace. No matter how hard we try to keep our personal racial and ethnic biases outside the workplace, interethnic discrimination is more pervasive than ever in our jobs. Unfortunately, courts and juries lack the understanding of these paradigms resulting in serious legal and factual errors when faced with cases involving discrimination of Hispanics against Hispanics.¹³ Typical scenarios that cause confusion are:

• Situations involving racial discrimination among white Hispanics against afro and/or indigenous Hispanics. i.e. White Hispanics perceived as European and viewed as "more advanced" than those more populated with people of indigenous or African descent.
• Situations involving national origin discrimination. i.e. Cubans v. Mexicans, South Americans vs. Central Americans and Caribbean, South Americans v. Cubans, etc. It is important to note that the biases associated with national origin are not necessarily attached to the nativity but to social and cultural standards and the manner in which language expression or cultural behaviors are perceived.
• Situations involving socio-economic hierarchical structures where foreign-born latinos are accustomed to class tiers in their countries back home and carry many of the social prejudices to the U.S. workplace i.e. Delegating certain job duties to one group of latino workers over other latino workers because of their social expressions and demeanor, skin appearance, accent.

Actual Barriers That Hispanics Or Specific Hispanic Groups Face With Respect To Hiring, Pay, Promotion (Advancement) And/Or Retention-

While antidiscrimination policies come a long way in promoting fairness in the work place, these measures tend to only focus on the minimum requirements of the law. In this regard, hispanics still face several barriers with respect to hiring, pay, promotion and/or retention. Among some of the most common barriers are:

• Accents- As a job applicant, having a Spanish accent can be a barrier to being considered for certain types of executive positions such as management and supervisory positions. It can be interpreted by a bias decision maker as lacking competency. For example, in the diverse South Florida workplace, accents showing you speak Cuban Spanish as opposed to more refined Spanish can be used to discriminate against Hispanics by Hispanics.
• Color- As stated before, within Hispanic communities, skin color can be a barrier to employment opportunities beyond being Latino. If a worker is of afro or indigenous descent, he/she might be denied a job or promotion opportunities because of his/her physical appearance. i.e. In a case I litigated representing guest workers at a country club in Palm Beach county, the employer would only offer server positions to the H-2B white European workers and not the Latino and Asian workers as it was imperative for the employer to maintain a " white look" with their country club members.
• In general, Hispanics may be steered from or otherwise denied management or supervisory positions based on their being Hispanic. A company may not want to have a Latino with a Spanish last name supervising Smith, Johnson and Williams.  To achieve the higher level position, the Hispanic employee is expected to be that much better. If he is a white blue eye Argentinean, the odds he would be offered an executive position would increase.
• Stereotypes persist. For example, in Central Florida where many Puerto Ricans reside and work they often have to endure the negative stereotypes about Puerto Ricans i.e. knife carrying, slimy etc.  Mexicans for example tend to be only associated with low-skilled jobs and as having no manners. Cuban Americans who migrated after the 1980s tend to be associated with criminal activity or as communists and are often resented by their own nationals because of their socio-economic status.
• Biases- Hispanics in many industries face biases also shown by commonplace use of terms like "spic" and "wetback" in reference to Latinos.  These references to immigration status and ethnicity continue everyday in many industries. For example, Mexicans and Central-Americans in the construction or restaurant industries are regarded as "humbled" individuals. Many of them- because of the economic necessity would not stand up to workplace abuses and would remain in the same position for years. In the other hand, Latinos in professional arenas recognize the lack of diversity and inclusion in the workplace, but instead of challenging any discriminatory policies, they would prefer to find another job or become self-employed.

At this time, I will like to commend the EEOC for having made one of the Commission's priority to "Protect Immigrant, Migrant and Other Vulnerable Workers" as part of its December 2012 Strategic Enforcement Plan. Under the leadership of General Counsel David Lopez, efforts to combat ethnic and racial discrimination in these communities has resulted in significant strides for the immigrant and migrant community in targeting disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them. In our experience in Florida, our regional office in Miami under the leadership of District Director Malcolm Medley and Regional Attorney Robert Weisberg have been instrumental in investigating and prosecuting these cases in support of these vulnerable populations and in sending a clear message to employers that these discriminatory policies and actions will no longer be tolerated. We are very thankful for these efforts.

Recommendations:

EEOC Investigations and community outreach-

• the length of time EEOC investigations currently take is problematic and prejudicial to many charging parties as a result of their migrant status. Furthermore, these delays often result in employer reprisals and intimidation causing great fear in migrant communities to proceed with the investigations.
• The EEOC needs to respond quicker when charges are received by the agency to interview victims and witnesses. Delayed investigations further a climate of distrust with immigrant and migrant communities who are already frightened and intimidated with the process in filing a charge. District offices need to respond immediately to charges that are made by immigrant and migrant workers and initiate their investigation. To the extent that the EEOC Commission has the ability to develop guidelines for district offices to respond to charges filed by migrant workers, a policy that establishes a time requirement to interview charging parties and/or witnesses will be crucial in combating discrimination and retaliation cases.
• EEOC district offices must improve their investigative techniques as to not expose any witnesses' collaboration and become more sensitive to workers' fears and concerns when cooperating in these investigations. This might require investigators to conduct "door-to-door" interviews of workers, and/or the use of subpoenas to protect charging parties and/or witnesses from retaliation and intimidation.
• Investigators need to move away from this "open interview model" where they attempt to interview witnesses at their workplace during working hours. This may require the involvement of more than one investigator in order to effectively gather the necessary information to properly investigate a charge.
• More bilingual and culturally competent investigators need to be recruited by the EEOC and these individuals should be trained on cultural competency and be required to take courses on how to work with victims of sexual assault/ harassment.
• The EEOC should expand outreach targeted to vulnerable populations such as farmworkers- The farmworker community's frustration and disappointment with the way Title VII charges are handled by the agency only intensify the Hispanic community's lack of credibility in the effectiveness of the EEOC and other agencies in redressing these violations of the law. The EEOC should consider expanding their outreach to these vulnerable communities to effectively encourage workers to pursue charges when violations of Title VII are encountered with no fear of reprisals, including deportation.
• EEOC regional offices need to develop closer relationships with local consulates who often serve as the first responders to hispanic workers' complaints in this area and can be instrumental in encouraging immigrant and migrant workers in reporting these violations to the EEOC.
• EEOC staff need to receive proper training to identify trafficking victims, to ensure that the needs of trafficking victims - including access to legal counsel - are adequately met by the NGO community, and to make appropriate referrals for criminal prosecution.

Communication with charging parties' counsel-

• EEOC Regional offices should work to establish better relationships and better communication with charging parties and their counsel throughout the course of an investigation. 
• Faster and more streamlined U-visa certification process- The EEOC as a law enforcement "certifying "agency should develop a more effective processing system to insure needs to hire regional U-visa coordinators like other federal departments maintain to expedite the U-visa process and prevent the intimidation of witnesses crucial to Title VII cases. The delays in obtaining U.S. visa certification cause tremendous harship on charging parties and/or witnesses given that they might find themselves in situations where they are unable to find immediate employment to survive the long-awaited months before trial. Securing employment authorization while the U Visa application is processed allows the worker the ability to obtain employment in an environment that is free of abuses and exploitation and access to social and medical services that he/she might need while they await their trial dates.

Thank you again for your important work and continued support in this area and for the opportunity to speak today.

Footnotes

¹http://www.dol.gov/_Sec/media/reports/hispaniclaborforce/ (accessed April 1, 2015)

² "Hispanics: Targets of Discrimination." Pew Research Center RSS. http://www.pewresearch.org/daily-number/hispanics-targets-of-discrimination/ (accessed March 15, 2015).

³http://www.pewhispanic.org/2007/12/13/2007-national-survey-of-latinos-as-illegal-immigration-issue-heats-up-hispanics-feel-a-chill/ (accessed March 22, 2015)

⁴Id.

⁵Id.

⁶ Mines, R., Nichols, S., and Runsten, D. California's Indigenous Farmworkers. Available online: www.indigenousfarmworkers.org; See also Samples, J. et al. Pesticide Exposure and Occupational Safety Training of Indigenous Farmworkers in Oregon. 2009.

⁷Id.

⁸Id.

⁹EEOC v. Global Horizons, Inc. d/b/a Global Horizons Manpower, Inc., et al., Case No. CV-11-00257-LEK-RLP); EEOC v. Global Horizons, Inc. d/b/a Global Horizons Manpower, Inc., et al, Case No. 2:11-cv-03045-EFS).  

¹⁰http://www.splcenter.org/get-informed/publications/under-siege-life-for-low-income-latinos-in-the-south (accessed March 31, 2015)

¹¹Id.

¹² A study conducted in 2007 involving focus groups with indigenous farmworker, found that women discussed instances of sexual harassment by co-workers and supervisors, but only felt comfortable doing so among a group of women. See Farqhuar, Stephanie et. al. Promoting the Occupational Health of Indigenous Farmworkers. 2007.

¹³See Tanya Kateri Hernandez, Latino Inter-Ethnic Employment Discrimination and the "Diversity" Defense, 42 Harv. Civ. R. Civ. Lib. L. Rev. 259 (2007).