By Veronica Gassert | Head Notes Editor

November 16, 2023

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Migrant farmworkers populate remote areas when they work for corporate farms in the United States.[1] The isolated nature of farmwork is conducive to the occurrence of sexual harassment.[2] So is the physical nature of farmwork because it involves putting one’s body in vulnerable positions that perpetrators of sexual harassment may take advantage of.[3] These elements, combined with the unique challenges that immigrants face, blend to create a precarious situation for farmworkers.[4] Just one woman’s story can illustrate the pains of many who experience sexual harassment when working for a corporate farm in America.[5]

Olivia Tamayo was a farmworker for Harris Farms in the 1990s and early 2000s.[6] Her supervisor raped her multiple times, threatening her into silence at gunpoint.[7] Ms. Tamayo’s bravery brought her to court, where she was awarded nearly $1 million in damages at the outset.[8] While on the surface, this seems like a win for the migrant-farmworker community, the benefits of compensation cannot outweigh the moments of her life lost to fear, instability, and suffering. To varying degrees, the majority of women migrant farmworkers can relate to Ms. Tamayo’s narrative—nearly 80 percent of female migrant farmworkers experience sexual harassment on the job.[9]

Despite the extreme nature of Ms. Tamayo’s personal experience with sexual harassment, there is a silver lining to the outcome of her case. Ms. Tamayo’s request for relief articulated a remedy that looks very similar to the requirements under Title IX,[10] which governs the prohibition on sexual harassment in educational settings. Title IX is probably best known for requiring the designation of at least one Title IX Coordinator on campuses of federally funded educational institutions.[11] This means that if a school receives federal funds, they must use those funds to maintain compliance with Title IX.[12] The underlying policies here are to prevent federal funds from being used for discriminatory purposes and to ensure access to effective measures that will protect students from sexual harassment.[13]

Farm labor is increasingly unregulated, and the informal setting places farmworkers in a very vulnerable circumstance not only with regard to experiencing sexual harassment, but also with regard to their livelihood.[14] However, Ms. Tamayo’s request illustrates what could be an effective means of preventing sexual harassment in the workplace, especially on corporate farms that receive direct government subsidies.[15] Corporate farms, like all employers, must follow requirements provided by Title VII of the Civil Rights Act, which prohibits sexual harassment as a form of discrimination on the basis of sex.[16] Although employers can be held vicariously liable for the misconduct of supervisors,[17] as was the case in Ms. Tamayo’s lawsuit, it is difficult to pursue litigation in most instances of sexual harassment because of the high barriers to reporting.[18]

There are several ways to deepen the negligence standard that corporate farm employers must abide by in sexual harassment cases. First, the definition of sexual harassment should be clarified and aligned with other statutes, such as Title IX and the Violence Against Women Act.[19] Second, the requirement that victims must take reasonable steps to abate the danger of sexual harassment should be eliminated.[20] Third, as part of employers’ requirement to prevent sexual harassment under Title VII, corporate farms should designate a Title VII Coordinator, identify and implement supportive measures, and develop a grievance procedure that preserves the due process rights of the involved parties.[21] The amended final rule of Title IX, promulgated in 2020, ensures fairness due to both victims and the accused and also requires institutions to think proactively about the measures that can be taken to promote a safe environment.[22] The role of the Title IX Coordinator creates the presence of a neutral party who can work to shift the workplace culture by ensuring a safe environment is maintained for all.[23]

By adopting these requirements, Title VII could be developed into a much more effective rule. As Ms. Tamayo’s case demonstrated, farmworkers need greater accessibility to a reliable source of help, and this is exactly what these improvements would accomplish. Such changes would work to prevent sexual harassment from occurring in the first place, both reducing liability for corporate farms and, most importantly, eliminating the normalized injustices done to farmworkers on a regular basis.

[1] Julie Solis-Alvarado, From Fields of Opportunity to Fields de Calzones: Workplace Sexual Violence in America’s Agricultural Industry, 25 Drake J. Agric. L. 293, 303 (2020).

[2] Id. at 295.

[3] Sara Kominers, Working in Fear: Sexual Violence Against Women Farmworkers in the United States  17–18 (2015).

[4] Id. at 27–29.

[5] See generally EEOC v. Harris Farms, Inc., No. CIVF02-6199 AWI LJO, 2005 WL 3039204 (E.D. Cal. Sept. 30, 2005) (detailing the incidences of sexual harassment Ms. Tamayo faced while working at Harris Farms).

[6] Appellant’s Opening Brief at 15–16, EEOC v. Harris Farms, Inc., 274 F. App’x 511 (9th Cir. 2008) (Nos. 05-16945, 06-16317).

[7] Id.

[8] EEOC, 2005 WL 3039204, at *1.

[9] Solis-Alvarado, supra note 1, at 299.

[10] EEOC, 2005 WL 3039204, at *1.

[11] 34 C.F.R. § 106.8(a).

[12] Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979).

[13] Id.

[14] Daniel Rothenberg, With These Hands: The Hidden World of Migrant Farmworkers Today 117 (1998).

[15] See 7 U.S.C. § 612c-4 (authorizing $200 million in annual spending for the purchase of specialty crops, including fruits and vegetables).

[16] 29 C.F.R. § 1604.11(a).

[17] Ida L. Castro, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999) https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

[18] Hum. Rts. Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 67 (2012).

[19] 20 U.S.C. § 1681(a); 34 U.S.C. §§ 12291(a).

[20] Castro, supra note 17.

[21] 29 C.F.R. § 1604.11(f).

[22] See generally 34 C.F.R. § 106 (detailing how educational institutions receiving federal financial aid can comply with requirements regarding unlawful sex discrimination).

[23] See 34 C.F.R. § 106.44(a) (detailing the steps the Title IX Coordinator must take when he or she receives notice of sexual harassment).