In a Day's Work Read online

  It is up to García and her investigators to do the tough work of finding the hardest cases that no one else is looking for. “There is not a presence in these work sites of hotline numbers, of where to call if you’re in trouble, of what you can do if a right is violated or if you’re attacked,” García says. “They were almost like these lost islands just operating in the middle of the night for years and years and years. We’re actually connecting them with society and letting them know that their working conditions are wrong or that an attack on their person was wrong and there’s something that they can do about it.”

  These cases rarely come to public attention. On the rare occasions when sexual abuse at work does come to light, it is easy to bury and hide from wider view.

  On-the-job sexual assault is both a crime and an extreme form of sexual harassment, a type of workplace discrimination outlawed by the Civil Rights Act of 1964. Nevertheless, companies do not have to disclose how many sexual harassment complaints they receive internally, whether the claims were physical and violent, or how they handled them.

  Complaints made to government agencies are often kept confidential until one party decides to file a lawsuit. Less than 1 percent of the sexual harassment complaints the federal government receives result in litigation.9 The rest are processed and then stored in filing cabinets or databases.

  Even lawsuits don’t always reveal much about what is really happening. If a worker threatens to file a sexual harassment lawsuit, the company can buy the person’s silence by offering a confidential settlement before the case is filed and becomes public information. Cases that do make it to the courthouse can be kept under wraps through quick settlement agreements that include confidentiality clauses that silence the worker and sometimes their attorneys about the claims.

  Of course, some workers don’t want their personal business to be known to everyone. Meanwhile, companies argue that keeping these claims out of the public eye is necessary. They say that they settle cases as a way to end an embarrassing complaint, even when they don’t truly believe the harassment happened. As a result, they worry that these lawsuits can sometimes become a kind of extortion by disgruntled or dishonest employees.

  Worker advocates like Lilia García, however, argue that it’s difficult enough to convince janitors to come forward about non-taboo job problems like being paid less than the minimum wage. On the dozens of occasions where her organization has unearthed cases involving sexual violence, the abused workers, for the most part, haven’t wanted to move forward with formal complaints because they didn’t want anyone to know what had happened.

  “Most of the victims, it’s very internalized,” García says. “They internalize the shame and the wrongdoing, and the amount of embarrassment is just overpowering. They choose not to talk about this to any of their relatives. They really have no other support outside of whatever our organization can provide.

  “We’re talking about workers that are earning, overall, a lower wage if it’s not a poverty wage,” she adds. “We’re talking about people who tend to be in crisis. Their home lives tend to be a challenge. Their child-rearing tends to be a challenge. They’re coming to the workplace with a lot of issues. I think all of those factors combine. Unfortunately, it’s why, in the janitorial industry, we have such a tremendous amount of unreported sexual crimes.”

  It is not just night-shift janitors who are at risk for workplace sexual assault. There are other unseen low-wage industries, like farm work and domestic work, done by people who are routinely ignored in places where no one is actively looking. These jobs share similar risk factors. Workers find themselves in isolated work environments during late night or early morning hours, and because they are battling poverty, they are eager to do what it takes to keep their jobs.

  Throughout the country, labor enforcement is predicated on the idea that workers already know their rights, and thus it’s logical to expect them to make a complaint to bosses or the government if problems arise. These laws don’t take into consideration the experiences of low-wage immigrant workers and what their options really look like if they’ve been sexually assaulted at work.

  When sexual assault happens among invisible workers in industries that few are monitoring, it becomes a crime that can be denied, a problem that never receives accountability or prevention. The repercussions of ignoring the realities of vulnerable workers are clear: If on-the-job sexual violence rarely comes to light, then the problem goes unaddressed and the perpetrator is free to abuse again.

  “At this point, nine out of ten times, no one complains, or the company covers for you,” García says. “There’s no accountability. The behavior’s not going to stop.”

  The Maintenance Cooperation Trust Fund does what it can with its team of undercover investigators in California. There are groups in Minneapolis and Boston that do similar work among janitors. But given all of the buildings that are cleaned every night throughout the country, there aren’t nearly enough Vicky Márquezes looking for workers who can expose what is really going on during the night shift.

  2

  The Open Secret

  On one of the long days of Eastern Washington’s apple harvest in 2004, Norma Valdez was inspecting a bin of just-picked fruit when she heard the foreman’s pickup truck approaching. She knew she had to move quickly. She tucked herself between two apple trees, hoping that the leafy branches would obscure her as he drove past.

  Valdez had begun to hide from the foreman, Juan Marín, she says, after he attacked her in his truck. A single mother, Valdez couldn’t afford to give up her job, so as a kind of self-defense strategy, she had started to find ways to avoid him.

  On that particular fall day, she leaned against an apple tree, silent and tensed between the branches. When she was sure Marín was gone, she turned to resume her work. But she had been wrong. Marín had found her and he wanted to know why she had been hiding. Before she could answer, she says, he pinned her against a tree as he grabbed at her breasts and her body. She says he tried to kiss her, and she could feel his saliva on her face. She pushed him away and tried to fight him. Finally, at the height of her panic, he let her go and walked away.

  Valdez was not Marín’s only target. Over the years, other female farmworkers working under the orchard foreman said that he had abused his power and used the conditions of agricultural work to his advantage. Their stories of sexual harassment and assault took on a recognizable pattern.1

  Magdalena Álvarez said that in 2008 she had been attacked in Marín’s truck after he told her she was needed in another part of the orchard. She had screamed and fought him until he agreed to take her back to the main worksite.

  In 2009, a woman named Esther Abarca said that Marín had taken her to an isolated part of the orchard in his truck, where he tried to take off her pants and shirt. She screamed and cried until he relented, and then he offered her money to keep quiet about what had happened.

  Going as far back as 1993, a fifteen-year-old named María Lopes called the police to accuse Marín of assaulting her in his pickup. According to the sheriff’s report, Lopes had fallen off a ladder while picking apples, and Marín offered to drive her home. After she got in his truck, Marín reached over to touch her injured side, and then moved his hand up to her left breast and squeezed it. “She told him NO and he told her not to be afraid. Mr. Marín placed his hand on her left leg and pulled her zipper down,” the report said.

  Lopes’s case was eventually closed because there had been no witnesses. “At this point it’s his word against hers,” the deputy sheriff wrote.

  Aside from Lopes, none of the other women reported Marín’s attacks to the police or to the owners of the orchard directly. The other women said they were too embarrassed to talk about it and they figured that since Marín was their boss, no one would believe them. So for a while, they had all just gotten back to work.

  For decades, extreme sexual harassment has been an open secret in the fields. “This has been one of those hazard
s of the job of being a farmworker because the way that farmworker women are treated, they are looked at as sex objects, actually, when they are out there in the field,” says Dolores Huerta, the acclaimed civil rights and labor activist who cofounded the United Farm Workers with César Chávez.

  To navigate this reality, strategies for avoiding danger and protecting oneself are passed around among female workers, who make up about 25 percent of the agricultural labor force. Women in the fields cover their faces with bandanas and tie sweatshirts around their waists, even in the hottest weather, to thwart the male gaze. Like Norma Valdez, they avoid violent advances by hiding from problem co-workers or working near trusted ones. Because single women are considered easy targets, some female farmworkers lie about their home life and pretend to have husbands and boyfriends when they don’t.

  The fact that female farmworkers routinely suffer from extreme sexual harassment first came to wider attention when the Southern Poverty Law Center partnered with a variety of organizations in 2007 to launch the “bandana project.” Mónica Ramírez, a center staffer at the time, convened farmworker women and community organizations in dozens of cities across the country to decorate bandanas with symbols and stories related to their experiences of sexual harassment in the fields. The bandanas were then displayed in museums, libraries, community centers, and rape crisis centers. A few years later, the center interviewed 150 immigrant women workers in the agricultural industry and published a report about the “enduring near-constant sexual harassment in the fields and factories.”2

  Human Rights Watch followed with another study. The organization interviewed fifty farmworkers and found that female farmworkers “face a real and significant risk of sexual violence and sexual harassment.”3

  Both reports observed that very few women reported these crimes to bosses or law enforcement because there can be real consequences:

  Farmworkers who push back against the abuse, or report incidents to management, say they suffer retaliation, getting fewer hours, more abusive treatment, or, worst of all, losing their jobs altogether. Because many farmworkers work with family members, retaliation can mean the victim is fired along with her family, resulting in loss of income to the entire household. Those who live in employer-provided housing can even find themselves homeless. Some farmworkers who had filed sexual harassment lawsuits reported they were “blackballed” and shut out of jobs at other farms.

  The prevalence of sexual harassment and assault in the fields is incalculable, but these reports have helped elucidate how entrenched the problem has become. A 2010 study of 150 California farmworkers by a UC Santa Cruz researcher found that 40 percent of the women said they had been harassed in some way, ranging from sexual comments to rape.4 In a survey of 100 meatpacking plant workers in Iowa by ASISTA, a national advocacy group focused on helping immigrant victims of crime, 41 of the women said they had experienced unwanted touching at work and 30 said they had been on the receiving end of sexual propositions. More than a quarter said their harasser had threatened them with harder work or losing their jobs if they didn’t go along with the harassment.5

  No survey or study can offer a true tabulation of the problem. “We have not yet counted those that are not courageous enough to tell their stories, or all the women that don’t know their rights, and all the women that don’t have transportation to come here and complain,” says Jesús López, a community worker in Salinas, California.

  For more than two decades, López has worked for California Rural Legal Assistance (CRLA), an organization that has been on the front lines of representing farmworkers with almost any kind of problem, including workplace sexual assault. A man of sturdy build and jovial character, López has earned a reputation for solving the intense but prosaic problems that immigrants living in rural California can face. A native of Mexico, he knows the farmworker life because he spent nearly two decades in the fields himself.

  Most weeks, López splits his time between his office on a busy intersection of east Salinas and the farm fields of the Salinas Valley, where he makes sure workers receive enough water and shade as required by state law. When people come to his office looking for help about problems with their paycheck, their housing conditions, or issues with pesticide exposure, he is often one of the first people they meet. If they need legal help, he refers them to one of the in-house lawyers. If they need something else—an emergency loan or housing for a few days—he searches for solutions.

  López is proud of the trust he’s developed in all corners of the Latino community in Salinas, but it means his life and work often blend together. He gives out his cell phone number without hesitation, and it rings constantly, even on evenings when he is having dinner with his wife or playing guitar in the church band.

  In 1996, it was not out of the ordinary when a farmworker named Blanca Alfaro came to California Rural Legal Assistance asking specifically to see López. The first couple of times she stopped in, López was out in the fields, but Alfaro was persistent. After two weeks of trying, López and Alfaro had their first meeting in his office.

  Almost immediately, López could tell that Alfaro was upset. But when he asked her what kind of help she needed, she insisted that the only thing that was wrong was that the lettuce farm that had fired her owed her $34 in wages.

  López knew something else was bothering her.

  It was only after some patient prodding that Alfaro opened up about the other problem she had been dealing with: Her supervisor demanded sex in exchange for a job every season. Her boyfriend, who worked at the same lettuce farm, had recently been fired after he complained to management about the supervisor.

  Alfaro’s reluctance to discuss the harassment is a pattern López has seen again and again. “No one comes here to say, ‘I have been harassed,’” López says. “They always come saying, ‘I am here because I was unjustly fired. I am here because I didn’t get my pay. I am here because the mayordomo [foreman] is mistreating me.’”

  López says he’s come to understand that when workers initially come to make a sexual harassment complaint, it’s to salvage their livelihood, not necessarily to seek justice through the legal system. “I am seeing a violation of the law and they are seeing an economic situation and I did not understand that,” he says. “They knew that it was very likely that they could lose their jobs and not make the rent anymore.”

  The lawyers in his office were ready to help Alfaro, but as the community worker who would help shepherd the farmworker through the process, López knew he needed to better understand the problem. That fall, he signed up for a training program offered by the U.S. Equal Employment Opportunity Commission, the federal government entity that polices on-the-job sexual harassment.

  When he got there, he met an investigator for the commission and they got to talking. López began to tell the investigator about Alfaro’s case; she took what López had told her to her boss, William R. Tamayo, then a regional attorney for the commission based in San Francisco. After Alfaro filed a formal complaint against the company, Tamayo’s office took on the case.

  Tamayo says that when López approached the commission with the Alfaro case, farmworker sexual assault was a problem that was beginning to come to the fore in his office, which oversees much of the Western United States. A number of farmworker advocates at the time had begun to urge the agency to look into these cases. “They said farmworker women were talking about the fields as the fils de calzón, or fields of panties,” he says. “They referred to the fields as the ‘green motel.’”

  After investigating Alfaro’s case, the federal commission eventually filed a sexual harassment lawsuit against Tanimura & Antle, the lettuce grower that had employed Alfaro, for failing to protect her from her supervisor’s assaults. This became the commission’s first lawsuit against a major agricultural employer, and the case settled for more than $1.8 million in 1999.6 Though the company did not admit wrongdoing, it was required through the settlement to offer sexual harassment training to its
workers.

  The U.S. Equal Employment Opportunity Commission has the authority to tackle rape and sexual assault in the fields because it upholds Title VII, the section of the federal Civil Rights Act of 1964 that protects workers from discrimination on the job. Under the law, severe and persistent workplace sexual harassment—whether verbal or physical—is illegal because it’s considered a kind of gender-based discrimination.

  Using civil rights laws to address sexual violence at work may seem counterintuitive, but it has been the most clear-cut path to redress for many workers. The U.S. Equal Employment Opportunity Commission is charged with investigating worker complaints and then making a determination about whether there is evidence of good cause. For sexual harassment cases, the commission tends to find reasonable cause in about half of the complaints it receives.

  For cases the commission decides to take on, it often pursues reforms and financial settlements with employers by facilitating a mediation process. If the company and its employees cannot come to a solution out of court, the commission files a civil lawsuit. At that point, the complaint against the company becomes public.

  The weight of the federal commission is significant, and lawyers who represent companies big and small say that this style of government enforcement makes businesses feel strong-armed into making payouts and concessions even when it is not clear that they have done anything wrong.7

  Mary Schultz is a Washington-based lawyer who represents workers, though she once spent months defending ABM Industries, a major facility services provider, in a Minnesota sexual harassment case. She says the experience of representing a corporation helped her see firsthand why companies feel compelled to fight sexual harassment and other lawsuits related to on-the-job problems. “Do companies just start opening the wallet, paying out money to people whose circumstances they believe?” she asks. “I think that would be horribly risky for any company. You would end up getting complaints from every angle, you would end up with varying motivations for complaints. You would be overwhelmed with trying to sort out the good from the bad.”