This is not intended in any way, shape, or form as a political statement. It is
intended to help awaken a part of an industry that seems, at times, to have
turned a blind eye to problems—in packing plants, in fields, and among all
types of agricultural employees.
Sexual Abuse and Insurance in the Agriculture Industry
Consider the following.
- The "#MeToo" movement is gaining strength.
- Time magazine names as its 2017 "Person of the Year"
the "Silence Breakers."
- The Alianza Nacional de Campesinas (an organization comprised of current
and former farmworker women along with women who are from farmworker
families) sent a letter to Hollywood actors in the wake of the Harvey
Weinstein scandal (and others). That letter purports to represent some
700,000 female farmworkers who are said to "suffer in silence"
because of the widespread sexual harassment they face in their work on a
regular basis.
Most of these women (it is estimated some 50 to 75 percent of US farmworkers
immigrated to the United States illegally) work in very low paying,
service-focused jobs that most American workers have little interest in
pursuing. In response to that letter, on January 1, 2018, over 300
women who work in television, film, the theater, and related arts wrote a
letter expressing their solidarity with the farmworker women.
In addition, a GoFundMe campaign was launched by the National Women's
Law Center announcing the launch of their "TIME'S UP" legal
defense fund to help those faced with sexual harassment with representation.
Launched in 2018, the fund has raised some $24 million and continues to
grow.
Why Insurance and Agriculture? Why Now?
"So Casey," you ask, "what does this have to do with
insurance and agriculture?" "Just about everything," I respond.
Those of you who know me realize the following.
- I have a deep love for our insurance industry.
- I have a deep love for agriculture, farming, and helping that industry
properly manage their risks and exposures.
- I have a passion for teaching.
- I am not the most politically liberal person you will ever meet.
Based on that knowledge, I believe that a discussion regarding sexual
harassment issues, farming and agriculture, and managing the risks inherent
with all of this is well past due.
A Brief Look at a High-Profile Case
In January 2016, the Equal Employment Opportunity Commission (EEOC) and
Evans Fruit Company finally settled a lawsuit brought by the EEOC on behalf of
some 20 farmworkers back in 2010. Depending on your viewpoint, this was either
a "colossal failure," as defined by the attorney working on behalf of
Evans Fruit Company, or a "victory," as claimed by an EEOC
spokesperson.
The final settlement? $272,000 payable to 20 claimants. In addition, Evans
Fruit Company avoided paying any further court costs. Quite frankly, given the
allegations against Evans Fruit Company and the length of time this case had in
the courts in multiple iterations, Evans received a proverbial "slap on
the wrist" in my opinion.
I won't trouble you with the allegations in this case. You can readily
find them out by searching on the Web. It is a case that was considered
extremely high profile given the allegations as well as the defendant to those
allegations. It was the second significant case that the EEOC had brought
against Yakima Valley growers in the past few years. Some would say it is the
second significant case that the EEOC in that area has lost in the last few
years (the other being the EEOC's human trafficking case against Valley
Fruit and Green Acre Farms that was dismissed by the court as
"frivolous").
Regardless, just think of how well-situated your client farmer is to such a
lawsuit. Who would defend them, pay for that defense, and help them manage
their loss of reputation? After all, we are all aware (or should be) that there
is no coverage provided for an insured under a farm liability policy,
commercial general liability policy, workers compensation policy, or just about
any other policy sold except for a properly constructed employment practices
liability insurance (EPLI) policy.
Multiple Cases of Sexual Abuse Reported
It just takes a little bit of research to discover multiple allegations of
sexual abuse in the farm and agricultural community. The belief is that because
of the type of work, the location of the workers, and their reliance upon
others for transportation and housing, as well as the knowledge that the vast
majority of supervisors are men and wield great power over the workers in their
charge, sexual harassment (and worse) is more frequent than is reported in the
agricultural community. Consider the following three cases.
- A case in Molalla, Oregon, settled in 2011 for $150,000 because of
alleged rape and death threats.
- A Lind, Washington, egg company settled for $650,000 in 2013 as one woman
and four other workers alleged retaliation for their complaints of
assault.
- A Salinas-based lettuce farm settled in 2010 for an undisclosed amount as
the manager was accused of raping a female farmworker.
There are undoubtedly many others—silent settlements keep them out of the
news.
Harassment Occurs in All Types of Work, Not Just Ag
I am not trying to paint farm or agricultural work as the sole area where
this sort of egregious behavior, harassment, or assault occurs. It happens in
multiple workplaces. In fact, I am not aware of any statistics that show that
it occurs more or less frequently in agriculture. I just am aware that it does
occur and that many farm/ag operators are ill prepared to address it on behalf
of their workers or themselves.
When I am privileged enough to teach at Agribusiness Conferences (AgriCon) on
behalf of IRMI, I have addressed the issue of EPLI policies for farm/ag
clients. I am amazed that so very few agents and brokers seem to address the
issue with their customers. I think a wake-up call is needed.
One Legislative Response
One response to this issue recently came from the state of California's
legislature. Governor Jerry Brown signed into law in October 2017 a requirement
that California farmworkers will have to undergo sexual harassment prevention
training commencing in 2018. Specifically pointing to Farm Labor Contractors
(FLCs), the new law, SB 295, requires that FLCs provide sexual harassment
training to each agricultural employee in "the language understood by that
employee."
It requires the labor commissioner of California to be in receipt of a
complete set of materials and resources used by FLCs in their training as well
as a count of the number of employees that underwent the training during the
calendar year preceding the FLC's license application.
Further, the new legislation authorizes the labor commissioner to levy civil
penalties against any FLC who fails to do the following.
- Provide sexual harassment training to an agricultural employee at the
time of hiring
- Provide sexual harassment training in the language understood by the
employee
- Provide an agricultural employee with sexual harassment training
satisfying certain minimum requirements
- Keep a record of training for each agricultural employee who receives
training
- Penalties may also be enforced for providing false records of completion
up to $100 per violation
Will this Solve the Issue?
Doubtful, this is but one of the first steps that this very heavily involved
state will take to address the sexual harassment issue in the farm/ag sector.
Will this solve the issue? Oh heavens no … at least not in my mind. I believe
it will take a concerted effort by all involved in the farm/ag sector to stop
the harassment.
So, what form can a raising of consciousness regarding sexual harassment in
the farm/ag sector take?
- Discussions need to be held with each farmer, processor, packer, etc.,
regarding their responsibilities—and risk exposures too—to the sexual
harassment issue.
- A defined risk management approach in these discussions will further
raise the consciousness of the participants.
- The offering of EPLI coverage is a paramount part of these
discussions.
- Employers need to ensure that their employees have a safe manner in which
to report harassment. Reporting to their direct supervisor is not a good
option, especially if it is the only option. Another direct line of
communication needs to be available to them. This is not only true in the
farm/ag sector—but virtually in all employments.
- Employers need to make certain that all in their employ realize that
there is a zero tolerance for harassment of employees.
- A proactive approach by all of us is needed.
Why Is this Important?
The farmer and/or ag operator has large swaths of land that are difficult to
oversee on a regular basis. Often, the laborers in the fields are spread out
over these large parts of land with minimal supervision. Farmworkers
(especially female farmworkers, which are estimated to be approximately 30
percent of the farmworker labor force) often see themselves as powerless
against a supervisor who has the ability to reward or punish them with the type
of work and/or work assignments they may receive. The farmworker is many times
not well educated in the ways in which they are protected by the law. More
often than not, there is a distinct imbalance in power between the supervisor
and the farmworker. An immigrant—especially one who may believe that their
worker status will be exploited—is not willing to risk their employment over a
complaint, regardless of how well-based it may be.
Despite all of that, there is a belief that farmworker lawsuits may increase
in the coming years. There is a belief that the "TIME'S UP"
movement will increase in its growth and influence going forward. In addition,
there continues to be a heightened awareness of harassment issues and their
prosecution among the general public.
There have been multiple news stories over the years of farmworkers being
taken advantage of. Regardless of one's beliefs, political persuasion, or
gender, the timeliness and importance of this issue is too great to ignore.
Given the groundswell of interest in gender equality, sexual harassment, and
multiple-related issues, to attempt to ignore this is, I believe, ignoring the
inevitable.
Can you—or your farm/ag client—afford to do so?