Written Testimony of Joshua Stehlik National Immigration Law Center

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Since its inception in 1979, the National Immigration Law Center (NILC) has earned a national reputation as a leading expert on the intersection of immigration law and the employment rights of low-income immigrants. NILC's extensive knowledge of the complex interplay between immigrants' legal status and their rights under U.S. employment laws is an important resource for immigrant rights coalitions and community groups, as well as policymakers, attorneys, workers' rights advocates, labor unions, government agencies, and the media. NILC has long collaborated with an array of immigrant and worker advocacy organizations throughout the United States to combat the wide-spread workplace abuse and unlawful employment discrimination faced by low-wage immigrant workers. NILC is a nonpartisan national legal advocacy organization that works to protect and promote the rights of low-income immigrants and their families.

Mr. Ramirez's story: Drawn to the U.S.—as are most immigrant workers—by the possibility of better employment opportunities, Mr. Ramirez endured illegal, discriminatory working conditions in a series of underpaid jobs across several low-wage industries.

Mr. Ramirez¹ came to the United States from a small town in Honduras, knowing no one, accompanied by his younger brother. Almost immediately, he began working in the fields performing agricultural labor in the Southeast. He endured long days full of hard work and although his employers changed as he migrated, illegally low pay was a constant. When he wasn't working fast enough to suit one of his employers, the farmer would curse at him and use racial slurs. Despite this the verbal abuse, Mr. Ramirez felt lucky. His brother faced much worse treatment. His brother had a cognitive disability, making him prey for racial slurs from his employer and sexual harassment from his coworkers.

After several years, the brothers decided to make their way to the Northeast, in search of better pay and working conditions. Soon, Mr. Ramirez found work in a restaurant, washing dishes and helping prepare food. The pay was better (although still under the legally-mandated minimum wage), but his new employer, Mr. Smith, was manipulative and abusive. For example, when Mr. Ramirez sliced his hand during food preparation, Mr. Smith made him work through the injury, despite substantial pain. Additionally, during Mr. Ramirez's employment, Mr. Smith referred to him exclusively as "The Wetback," and refused to address him any other way. On the rare occasions when Mr. Ramirez expressed frustration or anger at the slurs, Mr. Smith threatened to call immigration authorities, once forcing Mr. Ramirez into a truck at knifepoint and driving him by a building he claimed housed a local immigration police station. Mr. Ramirez was clear on the message: If he complained about his workplace treatment, his employer would call immigration authorities. Terrified, Mr. Ramirez stayed quiet about his abuse until he met a social worker at a local church and found much-needed emotional and legal support.

Immigrant workers are particularly vulnerable to employment discrimination and other workplace abuses.

Mr. Ramirez's story, unfortunately, reflects the unique vulnerabilities of immigrant workers in the workplace and the particularly pernicious forms of workplace discrimination such workers all-too-frequently face. Now more than ever, the EEOC's strategic priorities should reflect the needs of low-income immigrant workers living in the United States. Immigrant workers play a critical role in the United States economy, and represent an estimated 36.7 million workers in the United States,² comprising nearly 15 percent of the nation's work force.³ Although estimates vary, nearly 11.2 million of these workers are unauthorized to work in the United States.⁴ Whether documented or not, immigrant workers are particularly vulnerable to workplace abuse, including unlawful discrimination based on race, ethnicity, or national origin, sexual harassment, and retaliation.

Compounding the vulnerability of immigrant workers, most labor in low-wage occupations such as agriculture, construction, manufacturing, and service industries, where they face the greatest risk for exploitation.⁵

The vigorous enforcement of anti-discrimination statutes is of crucial importance to immigrant workers, particularly to women, who are especially vulnerable to sexual harassment, abuse, and violence on the job. Sexual violence against immigrant women in industries such as agricultural labor, domestic work, and food manufacturing and processing is widespread.⁶ An EEOC study of female agricultural workers 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."⁷ Another survey of farmworker women in California found that 80 percent had experienced some form of sexual harassment.⁸

These statistics paint a stark picture: immigrant workers are concentrated in jobs offering the lowest pay, but posing the greatest risk of discrimination and harassment. The ability of unscrupulous employers to use immigration status and threats of immigration enforcement to further undermine workplace protections for immigrant workers only compounds the problem.

Harsh state immigration enforcement laws like Arizona's Senate Bill 1070 and similar legislation in five other states reflects a growing anti-immigrant sentiment which can infect the workplace and exacerbate the vulnerability of immigrant workers.

The passage of Arizona Senate Bill (SB) 1070 and copycat state immigration legislation in five other states reflects an anti-immigrant sentiment that can all-too-easily manifest as unlawful employment discrimination in the workplace.⁹ Although the U.S. Supreme Court recently struck down three out of four provisions of SB 1070—including its attempt to criminalize unauthorized work—as preempted by federal law,¹⁰ the very existence of the laws themselves and the "attrition through enforcement" policies that they embody have created a pervasive climate of fear in Latino and other communities of color in these six states.¹¹ The spillover effects of the laws have already pervaded the workplace, resulting in increased employment discrimination against any workers perceived to be immigrants, citizen and non-citizen alike, as employers leverage the law to divide and to intimidate workers and to threaten immigration-based retaliation for workers' assertion of workplace rights.¹² The state laws will thus chill immigrant workers from pursuing claims of workplace discrimination.

Since these laws were enacted, NILC has received numerous complaints of workplace harassment and discrimination from residents of these six states which manifest in a myriad of ways. Specific examples of workplace discrimination from the Arizona and Alabama hotlines that NILC and other allied organizations implemented in the wake of these laws' passage include: harassment by co-workers based on ethnicity and national origin; threats by employers to call immigration enforcement in the face of workers' assertion of labor and employment rights; differential treatment of non-white workers; and differential treatment of workers perceived to be undocumented compared to workers perceived to have legal status.

The EEOC is well positioned to play a lead role in combating the potentially discriminatory consequences of these state laws and the Strategic Enforcement Plan (SEP) should reflect that. In particular, EEOC Headquarters should work closely with field offices in the six affected states to ensure that they trained and adequately resourced to respond effectively to the adverse effects of the six anti-immigrant laws. Consistent with the Strategic Plan's general prioritization of systemic investigations and litigation (as articulated in Strategy I.A.3), the agency should screen for and prioritize pattern or practice, policy, and class cases that arise in the six affected states, particularly if they involve immigrant worker claimants or discrimination based on race, ethnicity, or national origin. Such cases would send a message to employers about the federal government's interest in guarding against discrimination against immigrant workers or those perceived to be immigrants. Such cases could thus result in a broader deterrent effect, while reducing the overall climate of fear that pervades communities of color in the six affected states and chills immigrant workers from challenging workplace discrimination.

The EEOC should monitor for employers' misuse of the E-Verify program, particularly in the 18 states that have mandated its use by some or all of its employers, and pursue cases in which such misuse constitutes actionable discrimination.

The growing state mandate for employers to use the E-Verify program to confirm the work authorization of newly-hired workers increases the possibility for its misuse in discriminatory ways.¹³ The E-Verify program relies upon databases with inaccurate and outdated information. In turn, too often, the program incorrectly identifies eligible workers as unauthorized to work. For example, a government-commissioned report estimated the inaccuracy rate to be 4.1%.¹⁴ Compounding this problem is the fact that, in 2008, error rates were 30 times higher for naturalized citizens and 50 times higher for legal non-immigrants (e.g. temporary workers) than for native-born citizens.¹⁵ The substantially higher error rate for foreign-born individuals puts immigrant workers at significantly greater risk of being victims of E-Verify misuse by employers.

The EEOC should monitor for misuse of the E-Verify program by employers who misuse it in ways that constitute actionable discrimination, particularly since the program's significantly higher error rates for foreign-born individuals exacerbate its potentially discriminatory misuse by employers against any workers perceived to be immigrants. In general, this discrimination will take the form of differential application of the E-Verify process to groups of workers based on race, ethnicity, or national origin, and could happen at any point in the recruitment, hiring and employment process.

During the recruitment and hiring phase, employers may misuse E-Verify to screen only certain classes of workers, based on their race, ethnicity or national origin, either before making a job offer (which also violates the terms of the E-Verify program) or after an offer is made.¹⁶ During the employment relationship, employers may misuse E-Verify in a discriminatory manner by subjecting only certain classes of workers, based on their race, ethnicity, or national origin, to reverification through E-Verify¹⁷ or by applying differential policies or engaging in differential practices of responding to Tentative Nonconfirmation notices (TNCs) depending on the race, ethnicity, or national origin of the worker.¹⁸

In light of the growing use of E-Verify and it potentially discriminatory misuse by employers, the EEOC should ensure that field offices are properly trained to identify such cases and should prioritize agency representation in those instances.

Conclusion

NILC strongly supports the EEOC's vision of justice and equality in the workplace and its mission to stop and remedy unlawful employment discrimination.¹⁹ The unique vulnerabilities of low-wage, immigrant workers and the myriad ways that immigration enforcement can be used to undermine their federal civil rights render them particularly in need of EEOC's enforcement efforts. The recent passage of state immigration enforcement laws and the growing mandated use of the E-Verify program amplify this need. NILC therefore urges the EEOC to incorporate the suggestions above into the final version of the SEP and looks forward to working together to make the promise of the SEP a reality.

Footnotes

¹ Although the names of the parties have been changed to protect their confidentiality, the facts of this scenario are based on a real-life situation that was identified for NILC by a local legal aid program in the Northeast.

² Jeffrey Passel and D'Vera Cohn, U.S. Foreign-Born Population: How Much Change from 2009 to 2010? 1 (2012), http://www.pewhispanic.org/files/2012/01/Foreign-Born-Population.pdf.

³ Press Release, U.S. Bureau of Labor Statistics, Labor Force Characteristics of Foreign-Born Workers Summary (May 25, 2012), http://www.bls.gov/news.release/forbrn.nr0.htm.

⁴ Jeffrey S. Passel, Unauthorized Immigrant Population: National and State Trends, 2010 (2011), http://pewresearch.org/pubs/1876/unauthorized-immigrant-population-united-states-national-state-trends-2010.

⁵ Public Policy Institute of California, At Issue: Illegal Immigration 9 (2011), http://www.ppic.org/content/pubs/atissue/AI_711HJAI.pdf.

⁶ Monica Ramirez and Mary Bauer, Injustice on Our Plates: Immigrant Women in the U.S. Food Industry 45-48 (2010); Amanda Clark, A Hometown Dilemma: Addressing the Sexual Harassment of Undocumented Women in Meatpacking Plants in Iowa and Nebraska, 16 Hastings Women's L.J. 139 (2004); Maria Ontiveros, Lessons from the Fields: Female Farmworkers and the Law, 55 Maine L. Rev. 157 (2003); Diana Vellos, Immigrant Latina Domestic Workers and Sexual Harassment, 432 J. Gender & L. 407 (1997).

⁷ Ontiveros, at 169 (citing William R. Tamayo, The Role of the EEOC in Protecting the Civil Rights of Farm Workers, 33 U.C. Davis L. Rev. 1075, 1080 (2000)).

⁸ Id.

⁹ These six states that have passed harsh immigration enforcement bills are: Arizona (SB 1070), Alabama (HB 56), Georgia (HB 87), Indiana (SB 590), South Carolina (S 20), and Utah (HB 498 and HB 116).

¹⁰ On June 25, 2012, the U.S. Supreme Court issued its decision in Arizona v. U.S., the case in which the federal government challenged four provisions of SB 1070 as preempted by federal law. See Arizona v. U.S., 132 S.Ct. 2492 (2012). In its decision, the Court struck down three of the four challenged provisions as preempted by federal law, but upheld § 2(B), which requires local law enforcement to determine the immigration status of any individual stopped if the officer has a "reasonable suspicion" that he is unlawfully present in the U.S.

¹¹ SB 1070 establishes a state immigration enforcement policy of "attrition through enforcement" aimed at driving unauthorized immigrants from the state. SB 1070, § 1. The text of SB 1070, as amended by HB 2162, can be viewed at http://www.azleg.gov/alispdfs/council/sb1070-hb2162.pdf.

¹² For example, from 2009 to 2011, the total number of EEOC charges filed in Arizona, which passed SB 1070 in 2010, increased by 31%, with a nearly 20% percent increase in the number of those claims that were based on national origin discrimination. See EEOC FY 2009-2011 Charge Receipts for Arizona, http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm?renderforprint=1 (select "Arizona" from drop-down menu). The increase during the same time period of total charges in Utah, which passed its anti-immigrant bill in 2011, is even greater: total charges increased by 101%, while the number of those based on national origin grew by 127%. See EEOC FY 2009-2011 Charge Receipts for Utah, http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm?renderforprint=1 (select "Utah" from drop-down menu).

¹³ For a list of the 18 states with laws mandating the use of E-Verify by some or all of the employers within the state, see: http://www.nilc.org/stateev.html (click on "E-Verify: State Bills Mandating or Clarifying Its Use"). Use of E-Verify is also mandatory for some federal contractors.

¹⁴ See Findings of the E-Verify Program Evaluation (prepared by Westat and submitted to the U.S. Dept. of Homeland Security, Dec. 2009) [hereinafter Westat], available at http://www.uscis.gov/USCIS/E-Verify/E-Verify/Final%20E-Verify%20Report%2012-16-09_2.pdf

¹⁵ Id.

¹⁶ The Westat study found that between 20 and 40 percent of employers had impermissibly used E-Verify to prescreen job candidates before an offer to hire was made. Westat, at 149.

¹⁷ Reverification of current employees through E-Verify is only allowed in certain narrow circumstances. The Westat study showed that 34% of participating employers had used E-Verify for at least some existing employees. Id. at 153.

¹⁸ According to the Westat report, 37 percent of employers reported taking adverse action against workers receiving TNCs before the worker had an opportunity to contest the TNC. Id. at 157.

¹⁹ "EEOC Vision" and "EEOC Mission" available at http://www.eeoc.gov/eeoc/