eeo laws: a too eeo laws: a tool to protect victims of trafficking tracy edward smith enforcement...

EEO LAWS: A Too

EEO Laws:A tool to Protect Victims of Trafficking

Tracy Edward Smith Enforcement Supervisor

Equal Employment Opportunity Commission (EEOC), Tampa Field Office

The Equal Employment Opportunity Commission

Federal agency charged with enforcing the laws that prohibit discrimination in the workplace.

EEOC does this through:Development of PolicyOutreach and public educationInvestigation of complaints of discriminationLitigation, when necessary

color

race

religion

sex+ pregnancy

national origin

Laws Enforced by EEOC

Equal Pay Act of 1963, as

amended (EPA)

Title VII of Civil Rights Act of 1964

age (>40)

genetic information

Laws Enforced by EEOC

disability

Title I of the Americans with Disabilities Act of

1990 and ADA Amendments Act of 2008

(ADAAA)

Genetic Information Nondiscrimination Act of

2008 (GINA) Age Discrimination in Employment Act of 1967, as amended

(ADEA)

Time Limitations

Title VII, ADEA and ADAMust file a charge with EEOC or FEPA

before going to court.

180 days to file with EEOCextended to 300 days in most states.

Summary of EEOC’s Charge Processing

First, Charging Party files complaint of discrimination against private employer:▫Within 10 days EEOC notifies employer and

requests position statement.EEOC begins investigation (or can refer to

mediation)▫Obtains evidence, interviews witnesses, etc.▫At any time can attempt to settle case.

If finding of discrimination, then conciliation process begins▫ If no conciliation, legal unit may consider

litigation.

EEOC and Trafficking Cases:Since passage of Trafficking in Victims

Protection Act of 2000 (TVPA), EEOC has taken a pioneering role in human trafficking litigation.

Chellen and EEOC v. John Pickle (filed 2002)EEOC v. Trans Bay Steel (filed 2006)

Other EEOC cases, especially farmworker cases, have elements of trafficking: EEOC v. Iowa, AG, LLC and DeCoster Farms of Iowa (N.D. Iowa)(2002) settled for $1.525 million for 11 women.

Legal Theories under EEO Laws

Disparate Treatment: employee (victim) is treated differently than another employee because of a protected basis (i.e., national origin or race).Difference in wages, job assignments, hours/shiftsRestraint, deprivation of freedom of movement

Hostile work environment: employee (victim) subjected to severe and pervasive harassment because of a protected basis (i.e., national origin or race).

Retaliation: threats of harm, termination, prosecution or deportation.

Chellen and EEOC v. John Pickle Co. (N.D. Okla.) (2002)

52 Indian skilled workers (welders, fitters, electricians, engineers) paid less than min. wage ($1 – $3.17 hr).

Restrained in substandard living conditions. Passports confiscated.

Subjected to harsher conditions than Caucasian, U.S. born workers.

Claims brought under Title VII (national origin) and FLSA.

$1.3 million court award.

Significance of John Pickle Co. case:

First EEOC case involving human trafficking.

Court applied Title VII and other civil laws to case of foreign worker exploitation which are typically criminal matters of human trafficking and involuntary servitude.

Company tried to shortcut immigration laws by use of wrong visas for highly-skilled steel workers.Got B1 “Visitors Visas” for alleged “training” and lied to US Consulates that no work for pay was involved.

Company profited and displaced its American workers.

EEOC v. Trans Bay Steel, Inc. (C.D. Cal.)(2006)

48 welders brought from Thailand on H-2B visas.

Held against will, threatened, passports confiscated, movement restricted.

Forced to work 14 hour days/6 days a week w/o pay & confined to cramped apartments w/o any electricity, water or gas.

Escaped and sought help at Thai Temple.

U.S. born were not treated the same way.

Settlement of Trans Bay caseThree year consent decreeRecovered over $1 million for 48

weldersHousing stipendRelocation moneyTraining at a local college“T” visa certification(s) Guaranteed wages and positions

including supervisors for someMonitoring, reporting, training

EEOC v. Global Horizons, Inc. et. al.(E.D. Wash.) and (D. Haw.) (2011)

Largest trafficking case brought by the EEOC in agriculture.

300 to 600 Thai agricultural workers (H2-A visas)Brought as a pattern and practice case against placement agency and farm employersAllegations: harassment, terms & conditions, pay, and constructive discharge because of their national origin (Thai) and race (Asian).

Employees were also retaliated against, threatened with deportation, prohibited from leaving farms, etc.

Two cases in federal court: Hawaii and Washington.

Remedies for Trafficking Victims

Back Pay = for wages earned and/or lost wages

Compensatory Damages = emotional distress

Punitive Damages = intended to punish employer for actions

Injunctive relief = to correct unlawful employment practices by establishing changes (policy) in the workplace

Reinstatement and Front Pay may be options also.

Trafficking Victims May Be Eligible for Visas

Immigration Relief:

U Nonimmigrant Status (U visa)

T Nonimmigrant Status (T visa)

Continued Presence (CP)

Victim applies directly with USCIS.

“Nonimmigrant” means visa is not permanent.

U visasEligibility Requirements:

Victim of “qualifying” crime Suffered mental or physical abuse Has information regarding criminal

activity andWilling to assist government officials in

the investigation.

Criminal activity violates U.S. laws or occurred in U.S. (or territories).

Requires certification from law enforcement agency: EEOC is certifying agency.

U visa – examples of “Qualifying Crime”

Includes murder, rape, torture, sexual exploitation, extortion, witness tampering, false imprisonment, obstruction of justice, sexual abuse, trafficking, etc.

Often allegations in harassment cases include conduct that is considered a “qualifying crime” such as sexual assault, rape, sexual exploitation.

EEOC’s U visa Protocol:EEOC can certify U visas:

Field offices, through Regional Attorney, will interview victim and determine if:victim of "qualifying criminal activity" and victim is being, has been, or is likely to be helpful to the

investigation of that activity.

Qualifying criminal activity must be related to the unlawful employment discrimination alleged in charge or otherwise covered by EEOC statutes.

If RA determines victim eligible, then submits to HQs for Chair approval.

T visasEligibility:

Person is or was a victim of trafficking.

Person is in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking.

Person complies with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or person is under the age of 18, or is

unable to cooperate due to physical or psychological trauma)

T visas (Cont’d)Person shall demonstrate that she would suffer extreme hardship involving unusual and severe harm if was removed from U.S.

Person is admissible to the United States. If not admissible, may apply for a waiver.

No agency certification is required but can be helpful.

EEOC currently does not have a protocol for T visas.

Continued Presence

Allows victim to stay in U.S. during pendency of law enforcement’s case

Victim not placed in deportation proceedings

Can get benefits during the granting of Continued Presence

See www.uscis.gov for additional info.

Benefits of Visas

Visas can last up to four years.

Individual can stay in U.S., is authorized to work and travel.

May be eligible for public benefits.

After 3 years of continuous presence, can apply for permanent residency (green card).

Family members who accompany the individual may also be eligible for visas.

EEOC’s Current EffortsEEOC’s Immigrant Worker Team is building on prior efforts to develop and strengthen ties with:

Grassroots organizations/Non-Governmental Agencies (NGO’s) Federal agencies such as DOL, DOJ, Dept. of State, USCIS and ICE andExpanding training to staff

EEOC staff participates in anti-trafficking task forces nationwide.

EEOC is member of White House Interagency Taskforce to Monitor and Combat Trafficking in Persons and Senior Policy Operating Group (SPOG).

QUESTIONS?