In a Day's Work Read online

  Employers certainly can’t be expected to single-handedly prevent all cases of sexual harassment, so standards have been established through case law about when a business is at fault and when it is not. Generally speaking, companies are liable for sexual harassment only if they fail to respond to complaints once they become aware of them. “The law is clear that you have to fix the problem,” says Stephen Hirschfeld, an attorney who represents employers in sexual harassment cases. “How you do it is up to you.”

  Employers can also avoid legal liability if they show that the victim was being unreasonable by not bringing the problem to the company’s attention. Alternately, employers can argue that the harassment didn’t happen at all, or that the offending behavior doesn’t meet the legal standard of having been “severe or pervasive.”

  That the government is suing companies and not always the perpetrators of the sexual harassment or assault is one of the limitations of civil lawsuits—these cases often turn into tussles over seemingly mundane questions about legal liability.

  Mary Schultz, the Washington employment attorney, says that these legal arguments over liability can sometimes feel divorced from the actual allegations of sexual harassment. The questions start to center on technical issues, such as whether the plaintiff is suing the right business entity or whether the company was on notice about the harassment. “In court, the arguments are, in large part, technical and perhaps less about what actually happened,” she says. “The law is the law. There are elements that have to be proven. Some of that has little to do with what actually happened.”

  Despite their inherent constraints, civil lawsuits have become one of the few ways that sexually abused workers can seek recourse. And from the government’s point of view, these cases can have systemwide or industrywide impacts. In its settlement agreements with companies, the U.S. Equal Employment Opportunity Commission generally requires that they make improvements to how sexual harassment is handled. “We seek what we call injunctive relief, relief that looks for a remedy to what we feel was a violation that led us to sue them in the first place,” says Anna Park, a regional attorney for the commission.

  Since the Alfaro case, the commission has prioritized cases on behalf of low-income and immigrant workers like farmworkers, janitors and other vulnerable and underserved laborers. When it comes to farm work, it has filed more than forty sexual harassment lawsuits against agricultural companies in the past fifteen years, and the allegations tend to involve extreme claims like rape and sexual assault.

  This docket of lawsuits hints at the severe nature of the harassment experienced by agricultural workers, and the incidents span the map. In Iowa, female workers at DeCoster Farms, an egg and poultry processing plant, reported being raped and sexually assaulted by supervisors. The case, which turned up allegations of widespread sexual abuse, was settled in 2002 for about $1.5 million.8 The company did not admit wrongdoing in the process. In Florida, five women working at a packing plant for Moreno Farms said that they had been raped or sexually harassed by three male supervisors. The owners of the farm never responded to the lawsuit so the women won their case by default. A jury later awarded the workers more than $17 million in 2015.9

  Back in California, a farmworker named Olivia Tamayo (who is not related to the federal commission’s William R. Tamayo) pressed her civil sexual harassment case to trial in 2004. She worked for Harris Farms, one of the largest agribusinesses in the country, and she said that in 1993, she was raped by a supervisor named René Rodríguez in his truck while his gun rested on the dashboard. She said the supervisor raped her a second time later that year and then again in 1994, and both times, he carried a gun. Tamayo also testified that she feared Rodríguez, so for years, she didn’t tell anyone about the rapes, not even her husband.

  After a twenty-three-day trial, a jury found in favor of Tamayo and awarded her nearly $1 million.10 The company appealed the judgment but the higher court affirmed the decision in Tamayo’s favor.11

  The lawsuit did not convince the company that it or Rodríguez had done anything wrong. Representatives of the company have also maintained that any sex between Tamayo and Rodríguez was consensual, and they allowed him to retire in 1999.

  Joe Del Bosque, a Central Valley grower and a past president of the farmworker safety organization AgSafe, says that for employers, claims like Olivia Tamayo’s are hard to sort out. “The trouble with a lot of sexual harassment cases is that it’s one person’s word against the other person’s word and who do you believe?” he says. “I know that doesn’t make any of that all right but those are always very difficult cases.”

  Nevertheless, he says the Tamayo case put everyone in the area on notice. “That caught a lot of farmers’ attention—a lot of employers’ attention—that they could be liable for huge sums of money if there was a case of sexual harassment brought against them,” Del Bosque says.

  In 2006, sexual harassment complaints about a Yakima Valley apple orchard foreman named Juan Marín began to surface. Marín was working for Evans Fruit, one of the largest apple producers in the country. The family-run business is known in Eastern Washington as a solid and steady employer that hires hundreds of seasonal workers year-round for tasks ranging from picking apples to thinning fruit trees. Built through grit and sacrifice by husband and wife Bill and Jeannette Evans, the company has an all-American creation story to match its down-to-earth owners, who met as teenagers at a local chocolate shop.

  The couple built its impressive apple empire starting with just a ten-acre parcel of land. Today, the scale of the operation is massive, and Evans Fruit harvests apples from nine thousand acres spread across eleven orchards spanning the Yakima Valley. To get from one ranch to another can take almost an hour by car.

  The Evans’s second-largest orchard is in Sunnyside, Washington, a 1,700-acre property fifty miles from the Evans Fruit headquarters in Cowiche. For decades, Juan Marín presided over the day-to-day operation in Sunnyside as orchard foreman. His Horatio Alger–style rise within Evans Fruit is something to marvel at. In the 1970s, as a teenager, he says he sneaked into the United States through Tijuana crammed in the back of a truck, where he and others were packed as tightly as cigarettes. Once he made it across the border, Marín kept heading north until he landed a job in an apple orchard in Washington, and he started his career with Evans Fruit, digging out rocks in the fields so that trees could be planted in the orchards. With a capacity for exceptional industry, he impressed Bill and Jeannette Evans with his work ethic, and he was eventually asked to manage the Sunnyside ranch in 1981.

  There he was responsible for hiring and overseeing more than five hundred seasonal farmworkers each year. He says he made himself available around the clock, whether it was to transport crates of bees for orchard pollination or to turn on the windmills on cold nights to keep warm air circulating in the orchards. He also became a crucial link between management and workers because of his good, if choppy, English. For all this work, he was paid a salary of $50,000 a year, plus a house rent-free on the orchard and two pickup trucks.

  Marín was even able to transcend the trappings of illegal immigration when he married an American citizen, and the couple had two kids together, but the relationship didn’t last. He built a new life with an apple picker he met at Evans Fruit. The couple has been together for more than three decades, and they have seven children. Together, they constructed a small real estate empire, and have owned about $2 million in apartment buildings and houses in Sunnyside. Many of their tenants are also employees whom Marín oversaw at Evans Fruit.

  Though he was trusted at headquarters, Marín was feared and despised in the orchard. To hear workers talk about it, the Sunnyside ranch had become his fiefdom. Charged with filling hundreds of seasonal jobs in a community hungry for work, he had quite a bit of power to wield.

  Workers said he abused his authority, charging kickbacks for jobs at Evans Fruit or collecting utility payments for company housing and then apparently pocketing the
cash. He also had a reputation for condoning a sexualized workplace. Some workers said that he personally harassed both the men and women who worked for him, and that there was a remote place in the orchard that he called La Joyita, or The Little Jewel, where he supposedly took women for sex.

  To the workers, Marín seemed untouchable because he gave off the impression that owners Bill and Jeannette Evans treated him like a son, which the couple has denied. But in the orchards of the Sunnyside ranch, Marín’s word held undue weight.

  The rumors about sexual harassment in the Sunnyside orchards had circulated for decades, but the silence was finally broken by seventeen-year-old Jacqueline Abundez, who took a summer job with her mother and brother at Evans Fruit in 2006.

  Abundez and her family, like many of the company’s employees, were relative newcomers to the Yakima Valley, part of the latest wave of Mexican immigrants who had come to work in the busy apple, cherry, and hop orchards. Abundez lived in a crowded house at the end of an unpaved street not far from the Sunnyside ranch, where the median household income hovers around $34,000.

  Abundez’s mother, Ángela Mendoza, supported her family through apple picking because it was work she could manage with no English and little formal education. A stout and fiery woman with blazing green eyes, Mendoza had worked at Evans Fruit for several seasons and when she brought her children with her that summer for work, she expected to pick fruit alongside them. On their first day of work that summer, however, Juan Marín separated them into different areas, which made Mendoza nervous.

  Mendoza was familiar with the rumors about Marín, so she demanded that the foreman let her daughter work near her. He agreed. Still, Mendoza says, it didn’t shield her daughter from Marín’s advances. She says she was horrified when he came up behind Abundez and snuggled up against her. When Mendoza tried to intervene by telling him to treat his workers with respect, she said the foreman laughed at her.

  Mendoza says Marín also said vulgar things to her about her daughter, such as asking her for Abundez’s hand in marriage. “Give me your daughter,” Mendoza recalls him saying. “I’ll have her give birth to a child year after year.”

  Disgusted but uncowed, Mendoza took her concerns to the U.S. Equal Employment Opportunity Commission, where both she and Abundez filed a complaint against the company based on Marín’s behavior. Neither of them had gone to the company directly with their complaints, so Evans Fruit first got notice about the problem from the federal commission. In response, Bill and Jeannette’s son, Tim Evans, paid Marín a visit. He asked the orchard foreman whether he had harassed Abundez, and Marín denied it. He also spoke to two crew leaders, who backed up Marín’s denial.12 Nevertheless, Tim Evans told Marín that he could no longer give anyone rides in his truck, and Bill Evans followed up by sending Marín a warning letter: “This is the second time this year that we have received a complaint about your conduct from the Equal Employment Opportunity Commission. We don’t have the time or energy to continue dealing with the problems you are bringing down on us. Any further incidents or complaints of sexual harassment and you will be discharged.”

  The letter was an empty warning. Less than a year later, Marín was the subject of another sexual harassment complaint when Wendy Granados, an apple picker, filed a claim with the federal government that said the foreman regularly offered women raises, cars, and houses for sexual favors.

  The complaints continued. At headquarters, the Evanses received an anonymous letter complaining about Marín, including his penchant for sexual harassment. Months later, in 2008, the company received a fourth sexual harassment complaint from the federal commission. This time, it was filed by Norma Valdez, the apple checker who said she had been attacked by Marín in his truck and then had started hiding from him.

  Marín denied all of the sexual harassment complaints against him to the company and continues to deny the allegations to anyone who asks. “I never bother nobody,” he says. “The only thing I’ve been doing in my life is work. I’m so upset because it’s a bunch of rumors, a bunch of lies. There’s nothing true.”

  Because there was no physical evidence of sexual harassment—it was numerous female workers’ complaints against the word of one longtime male employee—Evans Fruit let the foreman keep his job.

  The lawsuit that emerged from the sexual harassment complaints against Juan Marín illustrates just how difficult it can be to decide who should have done what—and when—in response to a complaint of sexual violence at work. Employers are sometimes left to parse shocking accusations against trusted employees, even as the financial risk that accompanies these claims means companies might give them extra credence. But in the breakdown of these so-called “he-said, she-said” cases, the stories of men and women don’t always carry equal weight.

  After the various complaints against Marín came in, the federal commission conducted an investigation, which turned up additional workers who said they had been sexually harassed by Marín or other crew leaders.

  One young woman told investigators that she had witnessed and lived through Juan Marín’s harassment, but she didn’t want to join the lawsuit. The experience still plagues her. On a winter afternoon a few years ago, she drove down two-lane Chaffee Road, a few miles from the Sunnyside orchard, to point out the house that she said Marín had offered her in exchange for sleeping with him. She still trembles at the thought of the foreman, and even after all of these years, she is horrified by the harassment.

  Marín had been persistent in his sexual advances, so she didn’t stay on the job for long. She found work at a Mexican restaurant, where she waited tables seven days a week and nurtured dreams of going to community college. She said she didn’t participate in the lawsuit or want her name used because she hadn’t told her family about what had happened at Evans Fruit. Maybe she never would.

  In 2010, after efforts between Evans Fruit and its employees to resolve the case privately didn’t work out, the government filed a lawsuit against the company. Other crew leaders and male workers at Evans Fruit were accused of sexual harassment, but Marín remained at the center of the claims. The Northwest Justice Project, a legal aid organization, stepped in to represent some of the women in the federal case and to help three of them file their own claims in state court.

  In court filings, the government and the workers claimed that the company failed to prevent the sexual harassment the women had experienced. The company countered that the women had unreasonably failed to complain to the company about the problem but that once it had been notified of the initial claims, it had done a prompt and thorough investigation.

  As the case moved through the legal system, Marín’s carefully constructed world collapsed. He had managed to fend off the sexual harassment accusations for a while, but in 2010, Bill Evans fired him and stripped him of his duties and his title—but not because of the sexual harassment complaints.

  In the process of fighting the lawsuit, the Evanses had started to do some digging. They discovered that Marín had stolen an unknown amount of money from the company—one estimate put it at about $500,000—by setting up fake or “ghost” employees at Evans Fruit. He’d kept for himself the money issued to these nonexistent workers. The company also found that Marín had assigned orchard employees to work on his rental apartments during company time.

  While there are suspicions that the embezzled money is what allowed Marín and his wife to buy millions of dollars in real estate on a $50,000 salary, Marín insists that he has never stolen from his employer. “I was the best foreman,” Marín says. “I send the best fruit to the warehouse. I’m so upset with Evans Fruit because they didn’t believe me.”

  Dethroned, he was forced to take odd jobs around town. In 2013, a few months before the government’s lawsuit against Evans Fruit was set to go to trial, Marín stood among a small grove of cherry trees in Zillah, Washington.

  “I’m getting blamed for something I never did,” he said from atop the ladder, shears in hand. In the filtere
d winter light, he searched expertly for the sweet spots of the branch to cut away as he talked. “So much bad stuff happened and it’s not me. The ones who did the bad stuff are still there. I didn’t do nothing.”

  Later that day, he sat at a park bench and complained that the sexual harassment and assault claims against him had been made by “nasty women” at the behest of his brother and cousin, who he says have a personal vendetta against him. “They’re a bunch of liars and a bunch of jealous peoples,” he said. “And they’re wanting something for nothing. Because I work all the time. And I got a good wife and kids and a good family. I save my money. And they don’t.”

  He went down the list of all of the lawyers involved in the cases against him and said he hoped they would all be fired. He added that he plans to take everyone who made allegations against him to court. “They gonna find out what suffer is,” he said.

  It had been a clear winter day, and earlier, when Marín had stood at the top of an aluminum ladder to make forceful cuts to the naked branches, the length of the Yakima Valley had opened up around him.

  To the north were the cities of Cowiche and Tieton, small farming towns rich with hopyards, pastures, and tightly ordered orchards. To the south was Sunnyside, pungent with animal feedlots, where apples and grapes grew up to the foot of the Rattlesnake Hills.

  The upper and lower valleys span more than fifty miles, but the distances within the population—in language, lifestyle, economics, and opportunity—is incalculable. It is a place where the ways that America misunderstands itself racially and economically play out in a kind of quotidian theater. These misconceptions would prove to be one of Marín’s greatest allies in the lawsuits filed against him.