Category Archives: Jobs

Slave Mentality

A new breed of labor suppliers didn’t get the memo that slavery in America is over when they trafficked and trapped overseas workers on farms across the nation. Now they’re in the crosshairs of federal agencies who can do what law enforcement can’t — punish them under civil rights laws

Modern-day Abolitionists from Jenn Stanley on Vimeo.

By Jenn Stanley

Call me.

That’s the gist of the email Chancee Martorell got from one of the U.S. attorneys working with her on a human trafficking case — the fancy way of saying modern day slavery. Standing behind her desk at the Thai Community Development Center in Hollywood, she scrambled through stacks of paper just before sitting down, pulling her chair in and trying to reach her computer mouse without knocking folders and paperwork on the floor.

Now invisible behind boxes of documents representing 20 years of work organizing and advocating for a community she felt was going unnoticed, Martorell opened the missive. The District of Columbia lawyer’s note said to call him immediately. Worried, she braced herself, taking a deep breath before picking up the phone, the space between the ringing phone and the answer tugging on Martorell’s gut.

The L.A. sun shone behind her through a barred window. Then, she recalls, Robert Moossy picked up: “Chancee, I am so sorry, but I need to tell you that despite all our efforts, and I know it’s been a long haul, and I know all of you have been working so hard, and I know the workers have been very patient,” Moossy was saying, as Martorell’s gut pulled harder. “All of us at the Department of Justice have tried our utmost best and did everything we could, but I need to tell you that we are going to ask for the judge to dismiss this case.”

She was speechless.

Staring into the hallway, she mentally checked off years, starting in 2003 when the first trafficking victim rang the buzzer at the center’s offices on Yucca Street to the present, the summer of 2012. “How is this possible?” she said to herself, as she thought of the hundreds of Thai workers who had been brought to the United States under false pretenses, then held captive by the labor supplying giant known as Global Horizons Manpower, Inc. Criminal charges against owner and CEO Mordechai Orian and six others, three of whom pleaded guilty, were to be dropped.

Martorell, 46, wanted to scream, but she pulled it together, reminding herself that the more than 400 men who only wanted a honest day’s work still had the option of filing civil charges. Besides, her longtime civil rights ally, Anna Park, a regional attorney for the Equal Employment Opportunity Commission, would not rest until some justice was served. The case, EEOC v. Global Horizons, actually came to the commission through the Thai Community Development Center. Park and her team of EEOC lawyers had already been working on a civil case against Global Horizons and the farms that used their services when the Department of Justice decided to pursue criminal charges.

When the Federal Bureau of Investigation was conducting interviews with the victims, the EEOC stepped back. Now that the DOJ was dropping the charges, it was full steam ahead. Even at the EEOC, they had seen cases like this before but never to this magnitude.

“In typical harassment cases, you don’t hear terms like, ‘I had to escape from work, I had to escape from being held, being deprived of basic necessities like food and water. Being forced to work and not being able to leave,” Park says. “Those kinds of allegations really speak to servitude and slavery as opposed to a regular employment. So it was one of those situations where it disturbed the agency quite a bit that these types of violations or allegations were occurring.”

The phrase “human trafficking” tends to evoke images of sex workers, but the definition of human trafficking encompasses all instances in which humans are commoditized and sold against their will. Labor trafficking is a global issue just starting to enter the public discourse. Human trafficking charges are typically pursued as criminal cases, making the EEOC’s claims under Title VII of the Civil Rights Act of 1964 monumental. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

After years of preparation, suits were filed in Hawaii and Washington in 2011 against Global Horizons and eight farms, citing the pattern and practice of discrimination based on national origin and race. It is still the largest human trafficking case in agriculture ever. Workers from Thailand were brought over legally on H-2A visas for temporary agricultural work. But the nature of the recruitment was suspicious at best. Global Horizons charged workers high fees for job placement, saying the workers would quickly pay off their debts with high American wages. It is now illegal under U.S. law for employers or recruiters to charge workers fees for job placement.

No such law existed in the early 2000s. Orian, who currently lives in the Los Angeles area, maintains his innocence, claiming Global Horizons did not get any money from workers’ fees. He said if the workers were asked to pay any fees, they were not to his company.

“We worked hard, we had a beautiful company, but some crazy people in D.C., and the new administration came in and put a target on my back,” Orian says in his own defense. “I’d rather rot in jail and know I did nothing wrong than admit to something that never happened.”

Though the workers were given visas, the documents were immediately confiscated upon arrival, along with their passports. Global Horizons was then able to threaten deportation if workers complained or spoke to anyone outside the confines of the company. These workers had leveraged everything they had — and didn’t have — back home in Thailand to pay these fees, banking on the promise that money earned and sent back home would change the trajectory of the impoverished families. High debts back home made it dangerous to return.

‘I was so afraid.’

Patiphan Homon, 39, who signed on with Global Horizons in 2004, said within his first few weeks in the United States, he witnessed two workers who had been deported for communicating with outsiders. Homon had left his pregnant wife, stepson and father; and because he had already incurred so much debt, he was at risk of losing his ancestral farm in Phitsanulok in northern Thailand. As a rice farmer, Homon’s livelihood was tied to the seasons. Where he is from, growing season only lasts July through October, not long or lucrative enough for Homon to support his family.

According to Martorell and others on the case, this made him a prime candidate for recruitment by a labor supplier. Homon took out more debt to pay Global Horizons’ recruitment fees because it seemed like his only choice. He needed the work in America, and he couldn’t risk deportation.

“I was so afraid,” Homon says though a translator. “Afraid they wouldn’t bring me back. They would always threaten me, ‘Do not contact outsiders,’ they said. And the reason I was so afraid was that they always carried out their threats.”

From 2004 to 2007, Homon worked at about seven farms throughout the United States. He met his own daughter for the first time at 2 months old, when he was sent back to Thailand around November of 2004. Thai workers were often sent back home with the threat of not being able to return. Though the working conditions were poor, being in debt in Thailand posed a larger threat.

The lawsuit outlines one instance in 2005 in which Global Horizons employees Sam Wongesanit and Shane Germann, who pleaded guilty to criminal human trafficking charges, installed bells on string lines in the woods around the workers’ living quarters of Maui Pineapple Company in Kahului to alert guards of escape attempts. The lawsuit claims that Wongesanit “threatened Maui Pineapple claimants with a gun and routinely carried a baseball bat during meetings and at the claimants’ housing facility to enforce the curfew.”

According to court documents, by mid-September, some workers were brought to the airport where hired guards ensured they boarded their flight back to Thailand. Workers who subsequently paid higher fees were sent back to American farms to work. Instances like this made Homon and other workers increasingly afraid to speak up against their conditions because they did not want to be sent back for good.

Even now, years later, Homon can’t hold back tears while talking about his debts and fear of retaliation. He had his family to worry about. He was exhausted. At one farm, Homon recalls being asked to pick more and more produce every day, until the load became unmanageable. He and other Thai workers claim that while farmers of different national origins were being paid by the amount they picked, Thai workers were paid by the hour. At Green Acre Farms in Washington, supervisors would often send them home after just an hour or so.

At this rate, it would be impossible to make enough money to send to his family. When Homon was sent back to the house, an hour ride on an overcrowded bus that forced some workers to stand or sit on ice buckets in the aisles, he would just lay in a bunk bed in the room he shared with nine other workers, waiting for the next day to come. There was nothing for him to do but worry.

Homon couldn’t leave because his supervisors from Global Horizons told them if they left, they would be arrested and deported and the company would do nothing to stop it. The workers were always being watched by supervisors who would yell at them, threaten physical force and use other intimidation techniques to keep the workers in line. Workers brought in from other countries, such as the Philippines, did not face the same conditions, allegedly because Global Horizons believed those workers wouldn’t put up with such treatment and try to escape.

According to the court records, a representative from Global Horizons admitted, “Micronesian and Filipino workers were not subjected to security measures, daily head counts or roll calls and were not held as a captive workforce.”

Homon has considered why the Thai workers were treated so poorly compared with others: “I think it’s because we were easier to control. I don’t know if they looked upon us as slaves or not. But they could order us around.” Homon’s is just one of hundreds of stories like this. Martorell suspects Global Horizons preyed on workers with the most to lose—those with families and ancestral farms to use as collateral, who had little education — and a lot of fear.

“What ultimately drove this case was stereotyping,” the EEOC’s Park says. “Stereotyping that uneducated Thai workers, mainly from northern Thailand who came from farms and who maybe were lacking in levels of education, were vulnerable and could be controlled. That’s what drove this. That people could be forced to do work at Global Horizon’s bidding without regard for their well-being, essentially in violation of what we believe was Title VII. Our agency said that’s wrong.”

So did Judge Leslie Kobayashi of Hawaii District Court in March of 2014, when she found Global Horizons guilty of workplace abuse and discrimination based on national origin. One of the farms in the lawsuit, Del Monte Fresh Produce, settled for $1.2 million in November 2013. Four of the farms (Captain Cook Coffee Company, Kauai Coffee Company, Kelena Farms and MacFarms of Hawaii) are still finalizing settlements with the EEOC, and the case with Maui Pineapple Company is still in litigation.

Global Horizons’ case in Washington state is ongoing; however,  the court ruled against Title VII claims against the two farms: Green Acre Farms Inc. and Valley Fruit Orchards. The scope of the Global Horizons’ Title VII case and the fact that criminal charges were dropped make it that much more significant to future cases like this, as the broad scale of human trafficking and enslavement suggest there will be.

“This case was a national issue because the workers were on farms across the U.S.,” Martorell says. “Workers were also in the state of Washington, in Florida, in the Carolinas, in the Virginias, Utah, in New York, in Pennsylvania.”

‘It’s close to slavery …’

The H-2A visa program is expanding rapidly throughout the country, according to Ruben Lugo, a U.S.  Department  of Labor agriculture enforcement coordinator. Because of limited staffing  the agency often relies on H-2A users to self-police, putting pressure on other companies to remain compliant.

While Lugo couldn’t provide an exact number of available Department of Labor investigators, he explains, “There are more police officers in Los Angeles area than there are investigators on the entire West Coast, so we try to do our enforcement very strategically.”

Some critics argue the nature of the guest worker visa is problematic, even if compliance is met. To apply for H-2A visas with the labor department, a company needs to show they’ve actively tried to recruit and hire American workers, and that there aren’t enough American workers willing to do the work.

“We’ve always known that the guest worker program has been problematic, historically, because it really does not protect the rights of workers,” says Martorell, explaining the scenario. “They have to be working under that employer who applied for the visa and sponsored them. Let’s say that the employer was abusive: They have no right to go with another employer. If they leave that employer, they’ll immediately get their H-2A visas revoked. It’s close to slavery is my thought.”

It’s hard to quantify whether human trafficking is increasing, or awareness and action are, but many labor experts say it’s a little bit of both. Even though the criminal charges were dismissed against Orian and the six other Global Horizons employees, they were dismissed without prejudice, which bodes well for the victims. This means the government isn’t denying these workers are victims of human trafficking, but that there isn’t sufficient evidence to prove guilt beyond a reasonable doubt. Even to this day, none of the lawyers or advocates on the side of the Thai workers understands what happened with the criminal charges, and the U.S. Department of Justice has not been forthcoming with answers. DOJ officials were contacted for this story but did not respond as of this writing. Homon now works as an auto-mechanic, gets vacation time and health benefits, and is on his way to paying off his debts.

“My boss is a good person,” Homon says. “I’m still learning some things, but I do everything they ask me to do.”

He has been reunited with his wife and kids in the Los Angeles area. His father died while he was still working for Global Horizons, and he was unable to return to Thailand to pay his respects. Homon says at first his wife lied to him saying all the debts were paid, as a way of protecting him because he was so overwhelmed.

For her agency’s part, Park says though human trafficking cases have historically been thought of in the criminal paradigm, more government agencies are starting to apply their authority to combat the problem of modern day slavery.

“Discrimination is not stagnant. It is ever-evolving,” Park says. “To combat it, we have to be flexible, visible and make sure that people are aware.”

View types of visas here.

Work it: Visa Types

H-2A: Temporary agricultural workers

These visas are specific to agriculture and are the visas relevant to the Global Horizons case. H-2A allows compliant U.S. employers or agents to bring foreign nationals to the U.S. for temporary agricultural work.

H-2B: Temporary non-agricultural workers

Allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. This could include nannies, restaurant workers, janitors, etc.

H-1A: Temporary visas for registered nurses

H-1B: Specialty occupations

H-1B visas are for workers with a bachelor’s degree or higher, such as computer programming. This is also applicable to artists or those in the entertainment industry.

T non-immigrant status: Victims of human trafficking

“T” visas are for victims of human trafficking. This visa protects victims of trafficking and their families and allows them to stay in the United States.

United States Citizenship and Immigration Services

Workplace Rewind

By Caroline Cataldo

After the ’64 Civil Rights Act, women retrofitted their schedules and family lives to fit in at work. Today, a movement is afoot to makeover work so it fits the needs of America’s one true majority — women.

Each morning, J. Vega and her three boys wake up, eat breakfast and are out the door by 7:15 to make their way by bus, and foot, to school.

Then Vega, a 37-year-old single mother, takes the subway from their home in Brooklyn to the sports club in downtown Manhattan where she works as a customer service manager.

A few months into her job, Vega’s schedule became increasingly unpredictable for unexplained reasons.  When Vega addressed this with her supervisors, they waved her away, saying her hours “were not up for discussion.”

“The changing hours didn’t matter much to some, but even an hour made a difference to me and my family,” says Vega, who asked that her first name not be used to protect her job.

Her 10 a.m. to  7 p.m. schedule allowed her to help her kids with homework, make them dinner and make sure that they got to and from school safely.  Earlier starts or later finishes meant her kids, two of whom are autistic, would miss therapy.

Even though the 1964 Civil Rights Act banned overt workplace discrimination against women, 50 years later there are still subtle practices that hold women back.

Census reports show that on average women earn only 77 cents for every dollar a man earns — the obvious evidence of gender discrimination.  Experts like Cornell University economists Francine Blau and Lawrence Kahn say 60 percent of the wage gap can be attributed to things easily measured like a woman’s time out of the workforce due to pregnancy and childcare, and the different occupations and industries in which women tend to find careers compared with men.

But the other 40 percent of the wage gap, experts say, cannot be explained with data and statistics.

Martha Burk at her house outside of Albuquerque, N.M., explains the New Mexico Pay Equity Initiative. (Caroline Cataldo/MEDILL)
Martha Burk at her house outside of Albuquerque, N.M., explains the New Mexico Pay Equity Initiative. (Caroline Cataldo/MEDILL)

The Equal Employment Opportunity Commission, or EEOC,  which monitors discrimination of all kinds in the workplace, points to gender stereotyping during the hiring process and inflexible workplace policies as two major obstacles facing women, like Vega, attempting to balance their roles as mothers and employees.

Sarah Jane Glynn, the associate director of women’s economic policy at the Center for American Progress, says the unexplained percentage points are the side effects of centuries-old understandings of a women’s place in the family.

In 1964, 11 percent of women held dual roles as breadwinners and caregivers.  Over the past 50 years, that percentage has steadily increased to 40 percent, bringing women out of their homes and into the workforce.

Gender Stereotypes and Inflexible workplaces

In 2007, the EEOC issued enforcement guidelines outlining unlawful treatment of workers with caregiving responsibilities.  Though there are no specific federal laws protecting workers with caregiving responsibilities from discrimination, many claims that women make fall under Title VII of the Civil Rights Act.  When caregiving responsibilities collide with gender biases and stereotypes, the EEOC says “employment decisions based on stereotypes about working mothers are unlawful.”

Quoting the opinion of Justice William Brennan in the Supreme Court case Price Waterhouse v.. Hopkins, a famous sex discrimination case in which the court ruled the plaintiff was not promoted to partner in a law firm because she was a woman, the EEOC states that individual workers must not be evaluated by employers based on stereotypes but by their own merit.

“Any time an employer is making assumptions about their workers without actually checking in on them, that’s a problem.  When those things add up, they have really negative impacts,” Glynn says in similar studies she has conducted at the Center for American Progress.

The EEOC outlines those gender stereotyping assumptions, consciously or unconsciously made during the hiring process and throughout employment:

  • Caretaking responsibilities interfere with work;
  • Caring for a child makes women less dependable than male employees, regardless if they are or will become pregnant;
  • Women with young children should not work long hours ;
  • Women are less committed to their jobs as compared to before they had children;
  • Part-time workers care less about their work than those who work full time;
  • Women with children do not want to relocate to a new city, even when a promotion is involved for fear of disrupting their children’s lives.

In addition, the EEOC identifies what it calls the “double bind” that women face as they try to survive in the workforce.

Pamelya Herndon, executive director at the Southwest Women’s Law Center, talks about the issues facing women today. (Jillian Turner/MEDILL)
Pamelya Herndon, executive director at the Southwest Women’s Law Center, talks about the issues facing women today. (Jillian Turner/MEDILL)

According to the EEOC report: “Once female workers have children, they may be perceived by employers as being less capable and skilled than their childless female counterparts or their male counterparts, regardless of whether the male employees have children. These gender-based stereotypes may even place some working mothers in a “double bind,” in which they are simultaneously viewed by their employers as “bad mothers” for investing time and resources into their careers and “bad workers” for devoting time and attention to their families.” 

Joan Williams, a professor at the University of California, Hastings College of the Law in San Francisco and nationally known expert on work-family issues, emphasizes that asking a woman if she can “have it all” directs work-life balance away from employers’ responsibility to their workers and toward a mother’s ability to be both an employee and a mother.

“Framing this issue as ‘women have to make hard choices’ glosses over the reason why women have to make hard choices,” Williams said.  “If you design the good jobs around a man married to a homemaker, then of course it makes life difficult, not only for women but also for men who are married to homemakers.”

When Vega’s work hours began to shift, she was forced to make hard decisions.  Even taking an hour off to go to her son’s parent-teacher conference put her at risk of losing her job.   She felt stuck, helpless and uncertain about why her employers were unwilling to accommodate her.

Vega says employers should embrace working mothers just as much as any other employee.

“We take our work personally,” she says.  “We embrace our jobs because we know we are working for a greater goal— our families.”

Williams backed Vega’s assertion that employers should be more flexible with  mothers in the workplace.

“The fact that the adult has other important commitments does not mean the adult is not committed to their job,” Williams says, who founded the Center for WorkLife Law at the University of California Hastings College of the Law.

The remaining 60 percent

The Institute for Women’s Policy Research in Washington,  says occupational segregation, which is a major factor in the pay gap, occurs when men work in occupations normally held by men and women work in jobs usually held by women.

In an analysis of the 2013 gender wage gap, the institute compared the 20 most common occupations for women and for men.  The data show how the intersection of gender, race and ethnicity affects the wage gap.

The researchers found that for the 20 most common occupations for men and women, a woman’s median earnings per week were lower than the earnings of a man — $706 and $860, respectively.  The report states those numbers have a lot to do with the kind of jobs women tend to hold— the top five most common professions for women, including nursing maids, waitresses, cashiers, and personal care aides earn average salaries that place women at or barely above the poverty  line.  That means 6.8 million women earn full-time wages and are still at the poverty level while 3.7 million men fall into that category.

The Institute for Women’s Policy and Research also compared the average earnings of men and women in two highly specialized fields, requiring a certain level of skill — software developing, a male-dominated field and registered nurses, a field dominated by women.

In both professions, men earned more.  Male software developers earned an average of $1,737 per week versus women at $1,370.  Women earned an average of $1,086 as registered nurses, while men earned an average of $1,236.

Mentors and advocates

When Amy Williams, a consultant physician at Mayo Clinic in Rochester, Minnesota, sat down as a guest lecturer with young female leaders at an annual conference, she asked them what they thought they needed to succeed.

“They told us they don’t particularly want academic mentors, they want career mentors helping them navigate their career and private practice,” Williams said.

“So often, women with education create their own glass ceiling,” Williams says.  “We take ourselves out of the running for jobs and promotions, because we give up too early.  There is an unconscious bias and we have to be attuned to it, encouraging our male colleagues to call it out.”

It is through female mentors and leaders who are willing to help women get a leg up that Williams believes women, especially in her field, will be able to close the gap.

For Vega, change did not come until she was close to reaching her breaking point.  One day, in a “fit of rage,” she combed through Internet searches for an answer to her problem.  There, she found A Better Balance, a New York-based legal center dedicated to helping caregivers balance family life and work without losing their economic security.

Under the Family Medical Leave Act, Phoebe Taubman, the lawyer assigned to Vega’s case, said Vega would be able to apply for leave at the beginning and end of the work day — covering the hours she had to miss so she could get her children to and from school without fear of losing her job.

Changing leave policies

The Family Medical Leave Act, signed by President Bill Clinton in 1993, requires employers to provide up to 12 workweeks of unpaid leave for employees to take care of a new child, a seriously ill family member, or to recover from their own serious health or medical issue. Because two of her children suffer from autism, Vega qualified for these benefits.

At first, Vega found it difficult to get her employers to assemble the necessary paperwork to apply for the program.  But, after Taubman and Vega explained to them her home life situation, they were much more eager to accommodate her.

Only about 60 percent of caregivers meet the requirements to qualify for the Family Medical Leave Act; and those who do often cannot afford to take unpaid leave, according to the National Partnership for Women and Families, a non-profit organization that has advocated for women’s rights for four decdes .

According to a report prepared for the United Nations in 2012, the United States and just five other  countries — Liberia, Sierra Leone, Samoa, Papua New Guinea and Swaziland — do not have some type of federal paid leave system for new mothers. At the state level, only three states, California, New Jersey and Rhode Island, have paid family leave laws.

And for this reason, paid leave is a hot topic for Glynn and her colleagues at the Center for American Progress.  Without access to paid leave, women are forced to quit their jobs or are fired, she says.

“[Unpaid leave] creates this system that forces women out of the labor force and keeps them out for extended periods of time,” Glynn says.

And this problem is particularly relevant to women who are pregnant or recently gave birth, she says.

  • The Center for American Progress estimates that between child care, pregnancy and subtle forms of discrimination the amount of earnings lost over a woman’s lifetime could be as much as 37 years of groceries for a family of four or seven four-year degrees at a public university.

Working with Equal Employment Opportunity Commission guidelines 

To remedy this, the EEOC has published multiple reports establishing guidelines and recommendations aimed at protecting pregnant women and female federal employees from discrimination.

In 2011, there were 5,797 charges filed with the EEOC and state and local Fair Employment Practice agencies around the country alleging pregnancy discrimination under Title VII of the Civil Rights Act of 1964.

For the first time in 30 years, the EEOC in July issued new guidelines clearly spelling out that mistreatment of women for current pregnancies, past pregnancies and future pregnancies is illegal under federal law.  According to the EEOC, an employer must accommodate a pregnant woman as much as an employee who is similarly unable to complete a task because of a disability.   This covers everything from providing a woman a place to sit to creating spaces for pumping breast milk.

The guidelines were written in response to increasing numbers of pregnancy discrimination allegations and in an effort to clarify terms of federal discrimination laws, according to the EEOC.

Similarly, in December 2013, the EEOC created a report looking at the obstacles women faced in the federal workplace.

Specifically, the report highlighted inflexible workplace policies, wage disparity between men and women, unconscious gender bias and stereotyping, as well as how women are unable to obtain high level management positions in the workplace.

What’s next?

New Mexico began research in 2010 to monitor and remedy the gender wage gap for state government contract workers.  Though the initiative is still in early stages of implementation, it is the hope of pay equity advocate groups that their salary, gender and job reporting template and analysis techniques can be replicated in other states and cities around the country.

Martha Burk, lead consultant of the New Mexico initiative, says the only way women will find equal footing with men is by requiring state and local governments as well as private businesses to hold themselves accountable for nondiscriminatory hiring and pay practices.

Burk believes the government made some “serious mistakes” with civil rights, pay equity and pregnancy laws in the ’60s and ’70s.

“All of our civil rights laws were incorrectly conceived, in my opinion,” she says.  “Every civil rights statute that we have is complaint driven.”

According to Burk,  that means the plaintiff, in this case a woman, needs to prove she was discriminated against while the employer just has to “sit back and wait to get sued.”

“Instead of being complaint driven, we need to write laws so there is an affirmative obligation to do something,” says Burk, a women’s issues expert  who co-founded the Center for Advancement of Public Policy in Washington.  “Instead of saying, we are prohibiting pay discrimination, we need to say, ‘You must pay women and men equally for comparable work and skill.’ ”

The EEOC, Center for American Progress, Institute for Women’s Policy Research and a variety of other women advocacy groups have outlined recommendations for employers as well as local, state and federal governments to better meet the needs of the more than 66 million women in the workforce.

“I just want laws to start changing,” Vega says.  “We live in a diverse world— all benefits shouldn’t be impossible to fill for mothers, especially as the number of working families increases.

“At the end of the day I’m a mom.  A career cannot deny me that right.”

Locked out

“It is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion of jury service — are suddenly legal … . We have not ended racial caste in America, we merely redesigned it.” —Michelle Alexander, ‘The New Jim Crow’

Latinos and African-Americans involved in the criminal justice system — from arrests that led nowhere to serving time — are often denied for jobs when employers commit a crime under what the ’64 Civil Rights Act calls “disparate impact”

By Maurico Pena

Back in 2010, Precious Daniels kept seeing ads on buses and the Internet seeking to fill temp summer positions for the U.S. Census.

The 39-year-old black Detroiter was between jobs, so she figured she would apply — for the work and the opportunity to help the federal government figure out how to spend tax dollars, one of the main goals of the decennial census. Looking at the state of her beleaguered city, she often felt money was misallocated, anyway.

“There was a struggle for tax dollars for citizens who really needed it,” recalls Daniels, who called an 800 number, scheduled her test and filled out an application right away.

A few weeks after the test, Daniels got a letter stating her background check yielded a positive ID for a criminal record. The letter gave Daniels 30 days to provide fingerprints or court documentation. She did.

Antoine Day, who was exonerated for a murder he didn’t commit, speaks to a group of people with  criminal records.  Howard Area Community Center.  Day is the outreach  coordinator for the Overcomers Group, a  program designed to help former prisoners cope with barriers, such as employment,  after their release.. (Mauricio Peña/MEDILL)
Antoine Day, 52, who was exonerated for a murder he didn’t commit, speaks to a group of people with criminal records. Howard Area Community Center. Day is the outreach coordinator for the Overcomers Group, a program designed to help former prisoners cope with barriers, such as employment, after their release.. (Mauricio Peña/MEDILL)

Daniels, indeed, has an arrest record: A year prior, on Nov. 4, 2009, Daniels says was arrested on a misdemeanor charge of disturbing the peace, while advocating for national health care reform during a protest at Blue Cross Blue Shield of Michigan in downtown Detroit. However, Daniels was never formally charged. So after submitting fingerprints, Daniels got a rejection letter.

She ripped up the letter.

“I was angry and really confused,” Daniels says.

Although Daniels was never formally charged she knew of people who had misdemeanor convictions and were able “to get jobs with other branches of the government without a misdemeanor holding them back.” If her hunch was true, Daniels could unknowingly be affected by “disparate impact,” a measurement used by those enforcing the Civil Rights Act of 1964 to protect women, racial and ethnic minorities and people of faith and different national origins in access to —  and at — work.

Similarly, then-Harvard student Ignacio Riesco, a Latino applicant, sought a summer job with the U.S. Census Bureau in Boston. He submitted his application, took the written test and scored a 93. The high-scorer was told by Census officials his additional language skills, Spanish and Portuguese, were “languages they needed.”

A few weeks later, like Daniels, Riesco got a 30-day letter identifying a positive result in his criminal background check.

 “The letter didn’t explain exactly what I had to do,” says Riesco. “It just said there was a positive result on my background check. The only thing I could think of was the arrest, but even that did not make sense because I had not been convicted and the charges had been dropped.”

Riesco tried to figure out exactly what census officials needed: “I called them back and forth. It was difficult to get an answer,” says Riesco, noting with each call, he got a different answer.

Arnold Julien, 47, listens to Day speak during an Overcomers meeting.  The former inmate worked with One Northside, a social justice neighborhood organization, to help advance  “ban the box” legislation in Illinois. “When I was released from prison, no one wanted to give me an opportunity because I had been convicted,” Julien says. (Mauricio Peña/MEDILL)
Arnold Julien, 47, listens to Day speak during an Overcomers meeting. The former inmate worked with One Northside, a social justice neighborhood organization, to help advance “ban the box” legislation in Illinois. “When I was released from prison, no one wanted to give me an opportunity because I had been convicted,” Julien says. (Mauricio Peña/MEDILL)

Within days, Riesco, 33, submitted a deposition showing the February 2006 arrest and that resulting charges for larceny and scheming to defraud had been dropped in June of the same year.

Riesco says he never got a complete answer.

“It did scare me,” Riesco says. “I never thought that this was going to hurt me, and it hasn’t so far in any other scenarios, so the idea that an arrest that never turned out to be a conviction could somehow come up and ruin my chances of employment. I did worry.

“I felt uneasy that I could be punished for a crime I did not commit, for a crime I was not convicted for,” he says.

Daniels and Riesco are among more than 450,000 applicants in a 2010 class-action suit (Houser et al  v. Pritzker), claiming the U.S. Census Bureau’s screening process was racially discriminatory, weeding out applicants by using criminal background checks that included arrests not leading to convictions, as well as misdemeanor and felony convictions. Although on its face, the screening practice is racially neutral, because of the racial and ethnic disparities in arrest and conviction rates for African-Americans and Latinos, in practice, these candidates were disproportionately eliminated from consideration.

The lawsuit alleges the 30-day letter and follow-up process had a disparate impact on African-American and Latino applicants because of the disproportionate interactions these groups have with the criminal justice system.

On July 1,  New York-based U.S. Magistrate Judge Frank Maas granted class certification for African-American class members but fell short of certifying the Latino members in the 2010 suit filed by Outten & Golden LLP, with other nonprofit and civil rights organizations.

“There are about 250,000 African-American class members who were currently recognized as part of the class,” says Sally Abrahamson, a lawyer at Outten & Golden, who notes this is an “enormous case” with about 500,000 people who could be added to the class action if Latinos successfully join the suit.

When a door closes, another … stays closed

According to the suit, Census Bureau screening practices created employment barriers that violated Title VII of the 1964 Civil Rights Act. Under Title VII, the act prohibits employment discrimination based on race, sex, color, religion and national origin. The lawsuit alleges the hiring practices employed by the Census Bureau fell more harshly on African-American and Latino applicants.

As part of the hiring process, after job seekers submitted applications and took a written test, the bureau conducted FBI criminal background checks. Applicants whose background checks returned a criminal history were mailed a letter requiring “official court documentation or fingerprints to dispute any arrest and/or convictions” within 30 days.

Then the bureau followed up to determine employment eligibility. However, the lengthy process eliminated eligible applicants because once cleared, the temporary jobs were filled.

The lawsuit states that the process did not even consider the “deposition of the applicants’ cases, the amount of time that had passed since the offense and the nature of the applicants’ offenses and whether the position the applicant sought involved interaction with the public.”

“I believe a lot of people were surprised,” says Brendan Lynch, a staff attorney at Community Legal Services of Philadelphia. “I know the Census Bureau were looking at people’s criminal records in ways they had not before.”

Turns out, a lot of people were complaining they were rejected for a census position, although their criminal records would not have prevented them from completing the job task of a census worker such as conducting a door-to-door surveys, phone surveys or data collection, Lynch says.

“We were seeing people whose record predated the last census for which they worked,” Lynch says.  “If they were working for the census in 2000, why on earth would there be a problem with it 10 years later?”

Prior to the lawsuit filing, Stuart Ishimaru, then acting chairman of the Equal Employment Opportunity Commission, submitted a letter to U.S.  Department of Commerce and the Census Bureau on July 10, 2009, alerting the agencies that their hiring practices were “overbroad and may run afoul of Title VII of the Civil Rights Act of 1964.”

The letter particularly identified a portion of the 2010 Census application stating: “If you have had a conviction of a violation of the law since age 18 for something other than a minor traffic violation, it could be the basis for non-selection.”

When asked about the 30-day letter and specifics of the case, Census Bureau officials, via email, declined to comment on pending litigation.

Hunting a more subtle bias

Make no mistake, the New York judge’s decision to grant class status is a big deal, according to those who follow disparate impact cases. The suit opens the door for other disparate impact suits, while shedding light on long-debated discriminatory practices, such as unlawful background checks for people with criminal records.

“Everyone knows what disparate treatment is; it’s intentional discrimination on the basis of race, national origin, sex or a protected characteristic,” says Michael Kirkpatrick, formerly of the Public Citizen Litigation Group where he worked on   Houser v. Pritzker in its early stages. “Everyone knows what that is when they see it.

For the most part, companies have moved past the forms of overt discrimination, not hiring someone because of the color of their skin, sex or national origin, Kirkpatrick says.

“But there’s another form of discrimination, which is more subtle and more structural, but it creates extreme problems for people in protected groups — and that’s disparate impact,” says Kirkpatrick, who notes while employers don’t mean to intentionally discriminate, patterns emerge to work as a barrier to employment for certain groups. “So where essentially you have a rule or test, a minimum qualification, it disproportionately eliminates minority candidates for the job.”

In the precedent-setting disparate impact case, Griggs v. Duke Power Co. (1971), plaintiffs alleged the hiring practices by the Duke Power Co. disproportionately blocked African-Americans from being hired or getting promotions. Before the Civil Rights Act of 1964, the North Carolina-based company overtly discriminated against African-Americans, limiting them to jobs as laborers.

After the law passed, Duke Power changed its hiring practices, requiring applicants to have high school diplomas and satisfactory scores on IQ tests. These requirements, too, created barriers, the Griggs suit said, and was in violation of Title VII of the ’64 law.

The U.S. Supreme Court acknowledged that because of segregation, blacks had gotten a substandard education, so the test created a disparate impact on African-American communities. The court established the principle of “business necessity,” where a discriminatory result in hiring had to be job-related. The court said Duke Power’s IQ tests did not measure any job-related skill at all.

Attempt to regulate workplace discrimination 

 Title VII of the ’64 act aimed to eliminate workplace bias by prohibiting employers from discriminating based on race, sex, color, religion and national origin. The act created the EEOC to enforce the law, allowing citizens to file complaints for alleged discriminatory practices.

“Title VII was written in very general terms,” says Marcia McCormick, a law professor at Saint Louis University Law School who specializes in labor, gender and the federal courts. “It says it is a violation to discriminate against on the basis of race, sex, national origin, color or religion but doesn’t define what discrimination is.”

McCormick continues: “It sort of gives some examples of refusing to hire, discharging, classifying, segregating, those kinds of things but it’s not an exhaustive list.”

In 2012, the EEOC issued the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions,” insisting employers weigh several factors for people with criminal records.

“The guidance tries to define the terms a little bit, give some examples when Title VII will be violated and when it won’t be violated,” McCormick says of the policy clarification that acts as a stern suggestion.

The EEOC’s work is twofold. In the private sector, the EEOC serves as an investigator looking into claims to determine whether Title VII was violated. But it also serves as a judicial body, defining what discrimination is in the federal sector.

Although the guidance itself is nonbinding, the courts consider the policy to be a “persuasive interpretation of the law,” McCormick says. “ The EEOC makes it particularly clear this guidance is based on federal court decisions of when it’s OK and when it’s not OK to consider criminal records in the hiring process and what special safeguards an employer should put in place in order to not violate Title VII.”

EEOC spokesman Joseph Olivares says: “Currently, the EEOC does not have authority to ban or force an employer to hire someone with a criminal record.  It is the use of the information that might constitute an illegal employment decision, in the form of disparate treatment and disparate impact.”

In 2010, the U.S. Bureau of Justice Statistics released its Prison Inmates at Midyear 2009 statistical tables. Accordingly, African-Americans made up 40 percent of the prison population but less than13 percent of the United States population. Latinos made up 21 percent of the prison population while making up 17 percent of the United States population.

As argued in Houser v. Pritzker, because of these ethnic and racial disparities in arrests and convictions, the background checks and 30-day letter practice disproportionately barred African-American and Latinos from temporary positions with the agency.

As part of the guidance, if a person with a criminal record is eliminated from consideration, the employer must prove the criminal conviction would  have interfered with business necessity: the relationship between the job sought and the criminal record or criminal conviction.

“Businesses have a burden to prove that it is a business necessity if they are going to bar someone for an arrest or conviction, especially an arrest, says Outten & Golden’s Abrahamson.

Baked-in bias

Policing strategies adopted after the federal government’s declaration of the “war on drugs” in 1971 have resulted in a disproportionate number of minorities, particularly African-Americans and Latinos, who have come in contact with the criminal justice system.

The 1986 Anti-Drug Abuse Act introduced sentencing disparities for crack cocaine versus powder cocaine. People convicted for cases involving 5 grams of crack cocaine or more got the same five-year mandatory sentence as those associated with 500 grams or more of powder cocaine, a 100 to 1 ratio. African-Americans made up 85 percent of crack cocaine arrests, but only 13 percent of the American population.

“One in three AfricanAmerican men will be convicted of some crime at some point in his life,” McCormick says, who has 21 years of experience in civil rights and constitutional law. “That means 33 percent of AfricanAmerican men will be unemployable; that’s a huge impact on those men and the AfricanAmerican community more broadly. Similarly, for Latinos, the most recent numbers I’ve seen are one in six: 16 percent of Latino men will be unemployable.”

This wildly unbalanced conviction rate among blacks and Latinos fosters stereotypes to the extent employers generally makes assumptions based on race and national origin, instead of an actual convictions.

“Title VII is relatively narrow,” McCormick says. “It really only protects based on identity characteristics. But, she says, there are so many things linked to identity, so it’s easy for people to say conviction is not at all related to person of color because as an analytical matter it’s not: In a practical matter it turns out it is.

“The fact that Title VII only deals with employment makes it more complicated, too, because really discrimination or disparity in income, wealth, employability, job success are not just linked to decisions by employers but also to disparity in police practices, disparity in judicial practices, disparities to access to wealth, which is related to housing discrimination and education.

“So the fact that education, employment, housing and everything is all interrelated makes it very difficult for one part of the statute to really make a tangible change.”

Ban the box efforts grow

With 700,000 people being released from prison every year and more than 70 million people with criminal records, exclusionary hiring policies and practices against people with criminal records make it difficult for returning citizens to find jobs, despite the law, according to Michelle Rodriguez at the New York-based National Employment Law Project, also known as NELP.

 “Employment discrimination against people with criminal records results in lifelong collateral consequences,” says Rodriguez, senior staff attorney at the organization that works to remove unfair barriers to work. . “There’s statistical evidence that shows employment is significant in reducing chances of reoffending,”

State-level legislation known as “ban the box” that stops employers from asking about an applicant’s criminal history until final stages of hiring, is being enforced in 13 states, including Hawaii, New Mexico, Colorado and 70 cities.

 “Some of the opposition, we hear in different cities or counties is, ‘We don’t want you to tell us how to do our process,’ ” Rodriguez says. “In the private sector, similar arguments have been made, but some outright say, they don’t want to hire people with records. The stereotype and stigma is carried with them for years after time is served.”

Although Elizabeth Milito, senior executive counsel at the National Federation of Independent Business in Nashville, Tennessee, advises businesses to follow the EEOC 2012 guidance, she doesn’t think “ban the box” is good “policy for all businesses and industries.”

Smaller businesses “should be able to know sooner rather than later whether someone has a conviction,” Milito says. “Not knowing upfront wastes time and resources of these businesses with no human resource departments.”

On July 1, California’s “ban the box” law went into effect, prohibiting state and local agencies from asking about   convictions until applicants meet minimum job requirements. The law aims to thwart potential reoffenders by giving ex-cons a chance to find and keep gainful employment, and it builds on existing state law prohibiting public and private employers from asking applicants about arrests that didn’t lead to a conviction.

Most recently, Illinois passed “ban the box” for private employers and employment agencies, scheduled to take effect Jan. 1, 2015.  Employers cannot ask about criminal records or history until after an job seeker is selected for an interview.

 “After being released from prison,” said Illinois Attorney General Lisa Madigan, “people need to have the ability to reintegrate into society successfully and find legitimate employment, rather than relying on criminal activity to make a living.”

Elise Houren, a Chicagoland Chamber of Commerce spokeswoman, says, “The chamber remained neutral and did not take a position on the HB5701 legislation.”

Other measures, such as the 1995 amendment to the Illinois Human Rights Act have been used in an attempt to reduce barriers to work. Under Illinois law, employers or prospective employers cannot use arrest records in employment decisions, says Beth Johnson, director of the criminal records at Cabrini Green Legal Aid.

“There’s the law and then there’s reality,” Johnson says “Employers will still use that information and, Human Rights Act claims are brought against them for doing so.

 “We’re putting certain segments of our communities in a perpetual cycle of unemployment and the inability to rise out of their situation.”

We need to look at men and women with criminal records as who they are, men and women,” Johnson said.

Precious puts the pieces together

Houser et al  v. Pritzker could have implications beyond federal government hiring but also in the private sector on how criminal records screening are used or misused in the hiring process, according to Kirkpatrick, who specializes in constitutional law and civil rights law. 

 “Certainly private corporations are going to be watching,” Kirkpatrick says. “They aren’t going to want to do the same thing the government did and have that exposure if this case is successful.”

Kirkpatrick acknowledges there are certain times a person’s criminal history has a bearing on the job performed:  “There are particular times, places and sensitive jobs and certain crimes that should be a disqualifier for certain applicants right off the bat. But that’s where lines have to be drawn. Are we painting with way too broad a brush to where we are capturing people who for no good reason are being eliminated for the job?”

Ironically, the Census Bureau should be particularly concerned about unfairly eliminating black and brown candidates, Kirkpatrick says.

He adds, “They should be out there striving to get people into the jobs that are from these communities who are best equipped to get census participation.”

Precious Daniels and Ignacio Riesco won’t let this mark on their “records” change their minds about what they have to offer as workers – or Americans.

“You are punishing people once for crimes that were never proven,” Riesco says, a law student at the University of California, Davis. “Even if some cases did find fault, I find it true draconian to think we are going to punish someone for something that may have been minor and happened 10 or 20 years ago.”

Since her rejection, Daniels got a job.

“I worked for a Healthcare IT firm where security is paramount,” Daniels says. “I worked there for a year. For the current position I have now, they did a thorough background check, and there was no issue.”

And what about that ripped up rejection letter?

When she went online and realized so many others didn’t get the temp job for the same reason, she yanked it out of the trash, and, like her life, taped it back together.