In Regulating Marginalized Labor, Professor Mary Hoopes discusses the Equal Employment Opportunity Commission’s (EEOC) innovative approach to protecting farmworkers. She focuses on two key factors – a decentralized, entrepreneurial structure of enforcement and aggressive collaboration with advocacy organizations – in explaining the EEOC’s success. Professor Hoopes then suggests the broader implementation of those ideas could help lead to the “robust enforcement of civil rights within [other] administrative agencies.” (P. 1045.) That is a story worth telling and worth reading.
Professor Hoopes explores the special difficulties inherent in protecting the rights of farmworkers before detailing how an under-resourced EEOC helped bring justice to many farmworkers. She notes our history of agricultural exceptionalism – the exclusion of farmworkers from the protections of specific labor and employment laws – is a prime barrier to justice. For example, the National Labor Relations Act (NLRA) excludes agricultural workers from protections provided to workers who attempt to unionize, and the Fair Labor Standards Act (FLSA) exempts farmworkers from its overtime provisions.
Professor Hoopes explains the employment rights farmworkers do have can often be violated by employers, with workers having little practical resort. Farmworkers are susceptible to wage theft, harassment (sexual and otherwise), and generally poor working conditions. Many farmworkers are undocumented workers, who generally have difficulty enforcing employment laws against their employers. Farmworkers who are allowed to work in the United States through the guest worker program may be especially vulnerable given they work for a single employer who may be in control of their immigration status. When coupled with isolated workplaces and the transience of the work, farmworkers can be poorly situated to protect themselves physically or legally.
Professor Hoopes notes that given the legal landscape and the EEOC’s reputation for tepid employment discrimination enforcement, the EEOC is a surprising venue for a success story about protecting farmworkers. Early in its existence, the EEOC was considered a “toothless tiger,” with little enforcement power to address discrimination in workplaces and few tools to compel employers to run appropriate workplaces free of discrimination. In the 1970s, the EEOC’s prosecutorial powers expanded, allowing it to bring suits against private employers. However, even now, the Commission primarily focuses on resolving problems between employees and employers through conciliation, litigating only as a last resort. Some scholars suggest the EEOC’s approach, coupled with resources insufficient to fully investigate complaints, has led the EEOC to not be considered “a meaningful force in combatting systemic discrimination.” (P. 1053.)
However, Professor Hoopes looked beyond the EEOC’s reputation. She analyzed the EEOC’s work protecting farmworkers by creating a database of sixty-four cases the EEOC brought on behalf of farmworkers over the last two decades, speaking to EEOC employees, and interviewing staff from farmworker advocacy groups. (P. 1047.) She uncovered consent decrees utilizing innovative terms to protect employees specifically and workplaces more generally. The consent decrees appeared to be tailored to the farmworker context or specific employers. Some included “very specific goals and metrics by which to judge the defendant’s compliance.” (P. 1071.) Others included provisions related to working conditions and the monitoring of the housing and transportation of workers that would appear to be outside of the EEOC’s enforcement authority. (P. 1072.)
Professor Hoopes linked the EEOC’s creative and effective results to its bottom-up approach to litigation and conciliation in protecting farmworkers, and its work with farmworker advocacy organizations. Rather than control litigation decisions from Washington, the EEOC allowed its regional attorneys to make litigation decisions from their local offices. That structure allowed each district office to control its litigation efforts under the EOOC’s broad mandate presented in a National Enforcement Plan adopted by EEOC leadership. As part of controlling litigation, regional attorneys directed staff to meet with advocacy organizations and create education and outreach programs what would inform workers and others in farmworker communities of their employment rights. That resulted in a flow of information that spurred and sustained cases in the area.
Professor Hoopes is balanced in her praise of the EEOC’s approach. She could only analyze the several dozen cases the EEOC has brought in this area. Consequently, how broadly successful the EEOC has been in changing behavior in a broad swath of the industry is not clear. Some growers may have acted differently and more proactively as a result of EEOC efforts. However, whether the EEOC’s actions touch the bulk of worksites or farmworkers is unclear. The inability to monitor workplaces after decrees were in place likely limits the EEOC’s ability to drive systemic change. (P. 1095.) Additional resources could be significant.
Nonetheless, Professor Hoopes notes the expansion of the EEOC’s approach to other agencies could lead to the improvement of more workplaces and the protection of more workers. The work of the Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) in particular could be helped by the adoption of the EEOC’s innovative approach. Of course, unseen limitations may blunt the effect of the EEOC’s approach in the DOL, OSHA, and other agencies, but the article suggests the approach is worth trying.
The article is a “thing we like lots” because it finds a measure of justice in an unexpected place. This article is an in-depth investigation and analysis of the EEOC’s efforts to provide justice to farmworkers. Rather than writing another article suggesting the EEOC is broadly ineffectual, Professor Hoopes finds an area in which the agency appears to be surprisingly effective and forward-thinking in its approach to protecting workers and workplaces. She suggests expanding an innovative approach in a small corner of American workplaces could lead to good outcomes in other American workplaces that have been difficult to regulate. The article is hopeful and optimistic. That is a “thing we (should) like lots.”
