Sexual Abuse and Insurance in the Agriculture Industry

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?