Growers need a plan for preventing workplace discrimination

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GOOD FRUIT GROWER – MIKE FAULK – Attorney Sarah Wixson was impressed with her client, a Washington grower, for already having complex systems in place for understanding food safety, water conservation, insurance and taxes when they sought her counsel. But for all that good housekeeping, there was one glaring omission.

“The first thing I ask is if they have a handbook that explicitly says what sexual harassment is and how to report it,” said Wixson, who practices employment law at Stokes Lawrence Velikanje Moore & Shore in Yakima. “People learn too late that they need to have a system in place.”

It’s not just sexual harassment: Workers with illnesses or disabilities also need to be protected from discrimination and allowed to do their jobs effectively. Sometimes discrimination isn’t always obvious; sometimes it happens when people think they are doing the right thing.

Take, for example, a pregnant woman picking tree fruit on a ladder. Some employers might tell her not to use the ladder as a precaution for her own well-being, but the laws don’t let employers simply prevent people from doing the duties of their job unless it’s the employee’s choice.

“It’s up to her doctor to say what she can and can’t do,” Wixson said.

Establishing what topics or language are inappropriate for the workplace can also help avoid sexual harassment complaints, whether or not the perceived harassment was intentional. Even standing behind someone on a ladder could be interpreted as sexual harassment if it makes that person uncomfortable, and it’s on supervisors to avoid actions, however harmless the intent, from being construed as something else.

And if someone chooses to resign because of how their complaint was handled or how they were treated for raising the issue, that amounts to a “constructive discharge,” essentially an illegal firing, Wixson said.

“It means the environment is so intolerable they can’t work there anymore, and the standard for what’s intolerable has fluctuated over time,” she said.

No discrimination policy will protect employers from every claim they might face, Wixson said, but it establishes a system for dealing with issues before they spin out of control and potentially land in court. That means it needs to be written clearly and provide realistic options for employees to file complaints and feel protected from retribution.

The policy should set the tone for open communication between employees and management, Roy Farms human resources director Alicia Gagne said. That can be difficult when employees spend all of their time in the field, Gagne said.

“For example, requiring all employees to come to the office and make complaints in writing will deter a large number of employees on a farm from filing complaints,” Gagne said. “You may have employees who are not comfortable expressing themselves in writing or they may be intimidated by coming to an office when they work in the field.

“Following up on verbal complaints and spending time in the field are very important to opening up lines of communication.”
Navigating the laws on discrimination can be complex and time consuming. Businesses need to be up to speed on state laws and major federal statutes such as the Fair Labor Standards Act, Occupational Safety and Health Act, Migrant and Seasonal Agricultural Worker Protection Act and the Portal-to-Portal Pay Act, as well as regulations, case law and administrative law decisions.

And for employers who are worried about how to investigate complaints or treat the employees involved, Wixson advises calling your attorney.
“It’s much easier to course correct early in the process,” she said. “Once the issue has reached a critical mass and people are talking about suing, facts can’t be changed, only managed.”

But it takes more than business acumen for growers to keep their employees safe and healthy on the job. Again, experts say it takes a good listener.
“The skills that make good managers do not necessarily make for great listeners or the best people to take an HR complaint,” Wixson said. “Good managers get things done, and some things aren’t things you can just check off.”

The landscape of employment discrimination has shifted dramatically in the last few decades. The labor market alone is much more competitive in agriculture, which gives workers more options and greater expectations from their employers.

And, as Wixson notes, protecting workers from discrimination and harassment isn’t just good for business, it’s also the right thing to do.

“It’s a really tight labor market and people talk,” she said. “You want to be a good place to work.” •

Resources

Government agencies offer employers resources on employment discrimination policies.

In Washington state, cases are investigated by the state Human Rights Commission (www.hum.wa.gov/employment), which also provides helpful materials for employers on its website. The Washington State Department of Labor & Industries also provides tools and information on workplace rights in agriculture (www.lni.wa.gov/WorkplaceRights/Agriculture).

Federally, the Equal Employment Opportunity Commission enforces laws and helps employers (www.eeoc.gov/employers).

Here are additional links to anti-discrimination resources in a few other major U.S. growing regions:

—New York State Division of Human Rights (dhr.ny.gov/).

—Michigan Department of Civil Rights (www.michigan.gov/mdcr/).

—California Department of Fair Employment and Housing (www.dfeh.ca.gov/).

Posted by: Mike Faulk, Good Fruit Grower, Dec 27, 2018

Picture: TJ Mullinax Good Fruit Grower

Workers harvest Early Robin cherries at Roy Farms in Moxee, Washington, in 2014.