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Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace

Written Testimony of Rebecca Smith
Deputy Director, National Employment Law Project (NELP)

NELP applauds the Equal Employment Opportunity Commission (EEOC) for hosting this hearing on national origin discrimination. The hearing comes at an important time in our nation's history: Our country is becoming more and more diverse, with immigrants comprising a growing part of the United States labor force. Immigrant workers labor in many industries where demand is expected to increase dramatically in the next decade. The potential for Comprehensive Immigration Reform at the federal level will bring with it both new opportunities for immigrant workers and new challenges, including the growth of temporary worker programs and the further marginalization of those unable to access the road to citizenship. In an increasingly globalized economy and despite our best efforts, desperate workers will continue to be trafficked into our country.

Under Title VII and Commission rules, "national origin" discrimination encompasses not only the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin, but also the physical, cultural or linguistic characteristics of a national origin group. Since the focus of my practice is on immigrant workers, I address more narrowly the policies that particularly affect first-generation immigrants, rather than this entire spectrum.

The EEOC has aggressively pursued cases of national origin discrimination, including in the temporary worker or "guestworker" programs. It has also been uncompromising about its approach to abusive discovery practices and retaliation against immigrant workers who stand up against discrimination of all kinds. It has led federal agencies in the adoption of a U visa protocol. NELP applauds the Commission for this focus. In this testimony, I offer some suggestions for improvement in the Commission's enforcement of Title VII's national origin discrimination provisions. I also include references to other policies that apply more generally, but where the impact of illegal practices falls more heavily on immigrant workers.

IMMIGRANT WORKERS IN THE UNITED STATES

Immigrants comprise a growing part of the United States labor force. The nation's total immigrant population reached a record 40.4 million in 2011, according to an analysis of Census Bureau data by the Pew Hispanic Center.1 The foreign-born share of the population in the 100 largest metropolitan areas climbed from 10.4 to 16.3 percent between 1990 and 2008.2

Traditional immigration destinations like Los Angeles, New York, Miami, and Chicago continue to attract big shares of the foreign-born newcomers.3 The immigrant share of Los Angeles County's population is near its highest point since 1870. But Southern and Midwestern metropolitan areas like Atlanta, Greensboro, Indianapolis, and Minneapolis that had relatively few immigrant residents 20 years ago have seen their immigrant populations double and triple since.4

In 2010, 23.1 million foreign-born persons participated in the civilian labor force.5 Of these workers, some eight million undocumented workers form 5.2 percent of the U.S. labor force.6

Immigrant workers are present in every occupation in the United States, with more than 25 percent of the foreign-born work in service occupations.7 Immigrant workers are also over-represented in a majority of the largest and fastest-growing occupations in the United States. For example, between 2010 and 2020, we will need more home health aides, nursing aides, personal care aides, food preparation and serving workers, heavy tractor trailer truck drivers, freight stock and material movers, childcare workers, and cashiers-all industries that employ a large number of immigrant workers.8

Title VII of the Civil Rights Act was passed at a time when animus, particularly toward racial and ethnic minorities resulted in blatant discrimination in employment. This so-called "first-generation discrimination" has been more successfully addressed than what is known as "second-generation discrimination." Second-generation discrimination is characterized by practices that do not on their face discriminate against the statuses afforded protection by Title VII. In the context of national origin discrimination, this second-generation discrimination targets cultural attributes (language, accent) and, often, stereotypes associated with a particular national origin or ethnic group.9 Discriminatory recruitment practices and occupational segregation by ethnicity or national origin are two particular manifestations of this form of discrimination.

As victims of national origin (and often race, gender and religious) discrimination, immigrant workers face nearly insurmountable barriers to enforcement of their rights. Many of the industries in which immigrant workers labor are characterized by fractured employment relationships, in which labor recruiters and staffing agencies provide labor to a worksite employer, and workers face extraordinary challenges in identifying - let alone pursuing - entities responsible for discriminatory practices. Further, like other victims of discrimination, immigrant workers face high levels of retaliation for speaking up. And the retaliation they face is devastating. Unscrupulous employers hold the "deportation card" -- they threaten workers with deportation and routinely call immigration authorities when workers assert their workplace rights -- and many are willing and able to use it. This is true even for workers who are lawfully present in the United States, like those here on temporary work visas.

RECRUITMENT ABUSES

Jose Perez-Farias went to work for Valley Fruit Orchards in Washington State in 2004. Within a few months, a contingent of Thai workers came to the farm. "They kept them shut up in houses while we were working," Mr. Perez-Farias said. "The houses didn't have beds or windows. They kept them like animals. They didn't have toilets, so they had to come out and use the portable toilets that we had in the fields." Mr. Perez-Farias and an entire crew of local Latino workers were fired and replaced by workers from Thailand. Local crews at a second farm were also replaced.10

Posing as prospective employers in the H-2B temporary guestworker program, undercover investigators from the U.S. Government Accountability Office captured labor recruiters suggesting how to circumvent program rules that United States workers be preferred over workers from other countries. This advice included discouraging U.S. workers from accepting landscaping positions by requiring applicants to run with a 50 pound bag to determine if they were fit to work; conducting interviews before 7 a.m. in order to "weed out" U.S. worker applicants; and offering to provide "good excuses" (not specified in the GAO report) that employers could use to help reject U.S. workers who were applying for housekeeping positions.11

"You bring them in, pay them two or three dollars an hour, give them a little food, give them a place to stay. That's cheap labor. And they're the hardest-working sons of bitches you'll find - harder than any white man you can find around here."12

--------Employer John Pickle describing Indian workers recruited for welder jobs at his company.

Numerous studies, reports, and court cases have shown that United States temporary worker programs are frequently manipulated and abused.13 That abuse begins at recruitment. Experts say that the lack of supervision over foreign recruitment practices allows employers to escape liability for discrimination in recruitment.14 Employers who wish to bypass U.S.-based workers often do so. Those who wish to hire Thai, or Indian, or Mexican workers can hire internationally for the workers they believe most suitable for the work they have to offer, often based on offensive stereotypes about national origin groups. One report found that after the advent of the H-2B guestworker program in 1986, jobs traditionally performed by African American women were completely transformed into H-2B guestworkers jobs ,, with one employer arguing that domestic workers were rejecting crab-processing work because they could "receive welfare benefits instead."15

Title VII prohibits employers from engaging in recruitment practices that discriminate on the basis of national origin. Thus, an employer may not recruit individuals belonging to some national origin groups while deliberately ignoring members of other national origin groups. Nor may an employer adopt certain recruitment practices, such as word-of-mouth recruitment, where such practices have the purpose or effect of discriminating against particular national origin groups.16

EEOC has recently focused its work on discrimination in the guestworker programs, through its litigation in EEOC v. Global Horizons, Inc., No. 11-00257, 2011 U.S. Dist. LEXIS 127734, at *47 (D. Haw. Nov. 2, 2011). EEOC v. Signal International, No. 12-557 (E.D. La.); (protective order granted at 2013 WL 4854136 (E.D. La. Sept. 10, 2013), Chellen v. John Pickle Co., Inc., 446 F.Supp.2d 1247, (N.D. Ok. 2006) and other cases. In keeping with its SEP, it should continue to do so, in partnership with community and legal groups that can offer individualized support to charging parties. EEOC should continue to meet with advocates to discuss Title VII's application to discrimination in recruitment in the guestworker programs.

IMMIGRANT WORKERS AND JOINT EMPLOYMENT

Employers in the guestworker programs rely on an army of labor recruiters who operate in source countries and provide them with the workers they choose. These recruiters are notorious for discrimination, defrauding workers, and blacklisting those who complain. At the same time, U.S. based companies argue that they are not responsible for labor violations committed by their recruiters.17

But subcontracting of work is an old phenomenon, in no way confined to guestworker programs. It is characterized by the passing off of certain core functions of an enterprise to a labor intermediary, such as a labor broker or a temporary staffing agency. Some businesses engage in subcontracting because it allows them to focus on their core competencies and achieve efficiencies that are unattainable without contracting out. Others do so because they can shift labor costs and liabilities to this smaller entity, frequently an undercapitalized firm that cannot satisfy potential judgments against it.18

While subcontracting, and the related practice of classifying employees as independent contractors, is a common practice in all sectors, it is particularly common in many occupations in which immigrant workers are overrepresented, like janitorial, warehousing, home health care, landscaping and agriculture.

The EEOC joint employment test is derived from law under the National Labor Relations Act (NLRA).19 Title VII explicitly assigns liability for temporary employment agencies for discriminatory practices including discrimination in referrals.20 EEOC has enforcement guidance both on the classification of workers as "employees" and on contingent work, including the doctrine of joint employment. EEOC guidance on employee status has not been revisited since 2000.doctrine of joint employment. EEOC guidance on employee status has not been revisited since 2000.21 Its Guidance on contingent work has not been revisited since 1997.22

In view of the growth of contingent work in the past decade, EEOC should undertake a review of its principles and of the developing case law to ensure that the Guidance represents the most robust view of joint employment consistent with Title VII.23 It should examine case law developed under the NLRA and consult with the National Labor Relations Board in development of this policy.24 EEOC should ensure that all litigation staff is well-trained in liability theories of joint employment, interference with employment opportunities25 and other principles in order to protect potential recoveries of all victims of discrimination.

IMMIGRANT WORKERS AND OCCUPATIONAL SEGREGATION

In a matched pair study of 138 fine dining restaurants in New York, testers of color were only just over half as likely as white workers to get a job offer. White testers with slight European accents were 23.1% preferred over white testers with no accent. While businesses cited English as one of the most important qualifications for the front of the house, the "wrong" accent affected workers' job opportunities.26

A group of indigenous Triqui workers are employed by a mestizo (Mexican of mixed ancestry) Farm Labor Contractor harvesting peas for piece-rate wages. After they were subjected to taunts and offensive comments based on their status, several Triqui crew members requested assignment to jobs that entailed greater responsibility and higher pay. Although openings were available and the Triqui workers who requested these assignments were qualified for the positions, all of their requests were denied. The defendant hired only other mestizos for these jobs.27

Due to the large number of immigrants added to the American workforce in recent years, some experts find that more workplaces are segregated than ever in our history.28 Social science research shows that the more segregated an occupation, the more its employees experience wage disparities, less desirable work tasks and assignments, and deteriorating pay over time.29 Segregation is harmful to both the workers locked out of certain positions and to those locked into inferior positions.

On its face, and separately from its provisions on discrimination in terms and conditions of employment, Title VII prohibits the "classification or segregation" of positions.30 Traditional disparate impact and disparate treatment analyses have developed in a way that segregation is viewed simply as a symptom of discrimination, but not discrimination itself. Case law has often required proof of segregation plus a lack of opportunity in order to show a violation of the law.31

Given the separate treatment of segregation and the persistence of segregation in the American labor force, EEOC should re-examine its policies on segregation and create a framework that deals directly with segregation. (Of course such a framework would apply to segregation on the basis of race, color, religion and sex as well).

Professor Leticia Saucedo has written extensively on segregation and the brown collar economy.32 She notes that there is support in case law for treatment of segregation as a per se violation of Title VII. The U.S. Supreme Court has looked to the "inexorable zero," to apply to segregation cases in which workers in protected categories are wholly absent from a particular job, as is exemplified by the example above and often the case in immigrant dominated industries like agriculture.33 In these cases, the zero supports a presumption of discrimination, without need of statistical proof.34 Professor Saucedo proposes a corollary rule of the "inexorable 100," to apply to jobs entirely filled with members of a protected category of workers. She explains, "Just as the inexorable zero addresses the effects of extreme imbalance by remedying the structures that cause a complete absence of a protected category in a targeted job, the mirror image inexorable 100 would remedy the structures that create an overrepresentation of a protected group in a particular job category."35

To address the physical segregation that is often present in agriculture and at workplaces dominated by guestworkers, EEOC should create a separate section in its national origin compliance manual on workplace segregation. This section should include a provision that Title VII is violated where employees are segregated by physically isolating them from other employees or from customer contact. EEOC should also adopt a policy that near total absence or presence of a protected class in a particular job category makes out a prima facie case of discrimination.

HOSTILE WORK ENVIRONMENT

Immigrant welders from India came to the United States on guestworker visas. Once here, they were the targets of multiple derogatory remarks based on their national origin. They worked under continual threat of deportation.36

It is black letter law that Title VII does not tolerate a discriminatory work environment "that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)

Harassment and threats of deportation are almost standard operating procedure in some guestworker-dominated worksites. In David v. Signal International, Inc., 588 F. Supp. 2d 718, 721 (E.D. La. 2008) H-2B workers from India alleged that their employer maintained a hostile and abusive work environment based on race, national origin, and alienage. The workers complained that Signal's agents promised them long term legal residency in the United States in order to lure them to work. When workers complained about abusive conditions, including their housing in guarded, segregated labor camps, Signal made more promises about green cards and threatened them with deportation. Besides enduring offensive language and insults, the Indian workers said they were relegated to doing all of the dangerous and dirty work inside of the ships and that the American workers were not required to do such work.

In the Chellen case noted above, the court found that threats to send the workers back to India were coercive because plaintiffs feared the possible harm that awaited themselves and their families upon their return, including the potential for financial ruin.

As one commentator has noted, in sex discrimination cases, courts regularly consider the "totality of the circumstances" in evaluating whether the harms are sufficiently severe or pervasive to create a hostile work environment.37 Therefore, as one commentator has noted, "room has been cleared for fact finders to consider the background social identities of the actors and power dynamics at the workplace before they decide whether actionable harm has occurred."38 The EEOC's Guidance should ensure that this contextual analysis is employed in national origin discrimination cases involving guestworkers, where abuses are rampant and often focused on the fear of deportation or of harm to workers' families back home.

RETALIATION

Title VII protects undocumented workers, guestworkers and other immigrants just as it does any other worker.39 Title VII prohibits employers from retaliating when workers engage in protected workplace activity, also regardless of the worker's immigration status.40 Though retaliation occurs in all types of discrimination claims, retaliation against certain immigrant workers is inextricably linked to their national origin. If workers are too afraid to come forward with complaints of any kind, EEOC will not be able to enforce Title VII where victims of discrimination - be it based on race, gender, religion - are immigrant workers in temporary status or those who lack work authorization. Under Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), retaliation could also affect U.S. citizens and work authorized immigrants with close family members who are vulnerable.

Retaliation is common against all workers who speak up about discrimination on the job. In fiscal year 2012, the EEOC received more than 37,800 complaints that included retaliation claims.41 One recent study found that, among some 4,000 low wage workers in New York, Chicago and Los Angeles, 43 percent of those that made complaints about wages or working conditions suffered retaliation in some form.42

An analysis of more than 1,000 NLRB certification elections between 1999 and 2003 found that "[i]n 7% of all campaigns - but 50% of campaigns with a majority of undocumented workers and 41% with a majority of recent immigrants - employers make threats of referral to Immigration Customs and Enforcement (ICE)."43

When workers are too afraid to come forward with Title VII complaints, the most egregious violations are not brought to the EEOC's attention, and its ability to enforce the law is severely undermined.

While some employers retaliate against immigrant workers in unauthorized or guestworker status by calling immigration authorities, others aggressively pursue discovery of workers' immigration status in court. EEOC has been uncompromising in its efforts to keep immigration status out of Title VII cases, and has won numerous protective orders on these issues.44

However, EEOC could more aggressively pursue all remedies available to immigrant workers. In 2002, the U.S. Supreme Court ruled in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 148-52 (2002) that undocumented workers who are fired for activities protected by the National Labor Relations Act (NLRA) are covered by the Act, but cannot recover back pay (the wages they would have earned had they not been illegally fired) or be reinstated.

After the Hoffman decision, the EEOC rescinded its former favorable "Enforcement Guidance on Remedies Available to Undocumented Workers."45 EEOC reaffirmed that it will continue to enforce its statutes on behalf of all employees, including undocumented workers. In discrimination case law, the Ninth Circuit Court of Appeals has suggested that Hoffman's holding is limited to actions under the National Labor Relations Act.46

EEOC should take advantage of the developing jurisprudence and pursue back pay remedies on behalf of immigrant workers in the appropriate case. While eventual passage of a comprehensive immigration reform bill may correct the holding in Hoffman, workers should not have to give up remedies in the interim.

EEOC has taken a proactive response to retaliatory acts by defendants and should continue to do so. In EEOC v. City of Joliet, 239 F.R.D. 490 (N.D. Ill. 2006), a case brought under Title VII for harassment, hostile work environment, and retaliatory discharge, the employer, in the midst of the pending litigation, required intervener-plaintiffs and other employees to complete employment applications, including an I-9 Form, for the first time. On a motion for a protective order, the court rejected the defendant's alleged motive for a "sudden desire to be in compliance with its obligations under the immigration law." 47 The court found that "[i]t is not plausible that this employer, in business since 1989, would now discover for the first time that its employee files were deficient in regards to immigration law requirements." Id. The court concluded that "the main purpose behind this alleged new found desire to abide by the law is to effect a not so subtle intimidation of the intervener plaintiffs and all the potential class members." Id. Accordingly, the court barred the employer from seeking any information from the employees regarding their immigration status until the termination of the case.48

To ensure that the most vulnerable workers have access to legal protection, the EEOC should adopt some best practices in use by other labor agencies. First, EEOC investigators can prevent retaliation by making it a practice in every case to issue a letter to employers warning them that taking adverse action against a charging party, including discharge, threats, or making reports to immigration authorities, is illegal. Second, EEOC can alert charging parties that they should contact EEOC if any such retaliation occurs. Where retaliation is threatened, EEOC should have in place a "rapid response" plan to contact employers, warn them that retaliation is unlawful and demand reversal of any retaliatory action. In addition to protecting national origin minority workers, we believe these practices will assist the Commission in fulfilling its SEP goal of integrating efforts between investigators and legal staff.

WHEN RETALIATION OCCURS

When employers successfully retaliate against immigrant workers and cause their arrest, some remedies are available. For example, EEOC has successfully secured U visas for victims of workplace violations. It should also ensure that its staff is aware of the potential for the exercise of "prosecutorial discretion," and issue a protocol for certification of T visas.

EEOC has led federal agencies in its protection of immigrant workers. As early as 2008, EEOC published procedures for certification of U visa petitions in EEOC cases-the first of federal agencies to do so.49 On February 5, 2013, the agency released revised procedures for requesting EEOC U visa certification, greatly streamlining its certification process.50 However, while we applaud those efforts, we also encourage EEOC to comprehensively protect human trafficking victims by conclusively offering similar protection in the T visa context.

Congress created the T visa (as well as the U visa) as part of the Victims of Trafficking and Violence Protection Act in 2000. To be eligible for a T visa, an applicant must show, among other things, that he or she is a victim of a "severe form of human trafficking."51 A "severe form of human trafficking," is defined to include the crimes of involuntary servitude, peonage, and trafficking.52

The EEOC should build upon its work of protecting immigrant workers by issuing a T visa certification protocol. EEOC's statutory authority to provide certification for both T and U visa applicants is unambiguous. Signing both types of certifications falls squarely within EEOC's mission to protect some of the most vulnerable workers in the United States and ensure their availability as witnesses for criminal and civil actions.

CONCLUSION

On behalf of NELP, I thank the Commission for examining its guiding principles on national origin discrimination, as well as other policies that acutely affect immigrant workers in our country. The huge demographic shifts that we are witnessing, along with seismic changes in the organization of work in a global economy, demand a fresh look and fresh strategies if we are to live up to our nation's ideals of equality and inclusion. We are happy to assist the Commission in this effort.


Footnotes

1 Pew Hispanic Center, A Nation of Immigrants, A Portrait of the 40 Million, Including 11 Million Unauthorized, Jan 29, 2013, http://www.pewhispanic.org/2013/01/29/a-nation-of-immigrants/ , available at

2 Urban Institute, Metro Trends: Immigration brings diversity to more of metro America, available at http://www.metrotrends.org/commentary/immigration-employment.cfm.

3 Id.

4 Ibid.

5 Brookings Institute, Immigrant Workers in the U.S. Labor Force (2010), available at http://www.renewoureconomy.org/sites/all/themes/pnae/img/Immigrant_Workers_Brookings.pdf .

6 Jeffrey S. Passel & D'Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 (2011), available at http://pewhispanic.org/files/reports/133.pdf . The Department of Homeland Security's Office of Immigration Statistics's new estimates, released in March 2012, indicated that as of January 2011, 11.5 million undocumented immigrants resided in the U.S., virtually unchanged from the Pew Hispanic Center's estimates as of March 2010. See Jeanne Batalova & Alicia Lee, Frequently Requested Statistics on Immigrants and Immigration in the United States (2012), available at http://www.migrationinformation.org/USfocus/display.cfm?ID=886#5.

7 Elizabeth M. Grieco, et al., U.S. Census Bureau, The Foreign-Born Population in the United States: 2010 (2012), available at http://www.census.gov/prod/2012pubs/acs-19.pdf .

8 Audrey Singer, Immigrant Workers in the U.S. Labor Force (2012), available at http://www.brookings.edu/research/papers/2012/03/15-immigrant-workers-singer .

9 Katie Klaeren, Moving Toward A More Protective Interpretation Of National Origin Discrimination Under Title VII?: Maldonado V. City Of Altus, 433 F.3D 1294 (10th Cir. 2006), 77 U. Cin. L. Rev. 349 (2008-2009).

10 Paul Jeffrey, Employers stoke racial rifts for economic gain, UM Bulletin, September 2012, available at http://new.gbgm-umc.org/umw/response/articles/item/index.cfm?id=939

11 U.S. Gov't Accountability Office, GAO-10-1053, "H-2B Visa Program: Closed Civil and Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and Abuse (Sept. 2010), available at http://www.gao.gov/assets/320/310640.pdf.

12 John Bowe, NOBODIES: MODERN AMERICAN SLAVE LABOR AND THE DARK SIDE OF THE NEW GLOBAL ECONOMY (New York: Random House, 2007), p. 93.

13 Elizabeth Johnston, Note, The United States Guest Worker Program: The Need for Reform, 43 Vand. J. Transnat'l L. 1121, 1121 (2010) (describing abuse of workers); Maria L. Ontiveros, Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs, 38 U. Tol. L. Rev. 923, 923 (2007) (labeling immigration as a current "hot-button issue"); Rebecca Smith & Catherine Ruckelshaus, Solutions, Not Scapegoats: Abating Sweatshop Conditions for All Low-Wage Workers as a Centerpiece of Immigration Reform, 10 N.Y.U. J. Legis. & Pub. Pol'y 555 (2007); Andrew J. Elmore, Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-Subordination Approach to the Labor-Based Admission of Nonprofessional Foreign Nationals, 21 Geo. Immigr. L.J. 521(2007); and Michael Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guest Workers from Enforcing Their Rights, 18 Hofstra Lab. & Emp. L.J. 575(2001).

14 American University Washington College of Law, Centro de los Derechos del Migrante, Inc., Picked Apart: The hidden Struggles of Migrant Worker Women in the Maryland Crab Industry, available at http://www.wcl.american.edu/clinical/documents/20100714_auwcl_ihrlc_picked_apart.pdf.

15 David Griffith, New Immigrants in an Old Industry: Mexican H-2B Workers in the Mid-Atlantic Blue Crab Processing Industry, 3 CHANGING FACE (1997), available at http://migration.ucdavis.edu/cf/more.php?id=148_0_2_0.

16 U. S. Equal Employment Opportunity Commission, Compliance Manual National Origin, December, 2002, available at http://www.eeoc.gov/policy/docs/national-origin.html#N_28_

17 Some courts have held that Title VII does not protect non-citizen workers who suffer discrimination outside of the United States, even if those workers are eventually employed within the United States. See, Reyes-Gaona v. N.C. Growers Ass'n, 250 F.3d 861 (4th Cir. 2001); David v. Signal Int'l, LLC, 2013 U.S. Dist. LEXIS 138476

18 David Weil, Boston University, "Improving Workplace Conditions Through Strategic Enforcement," May 2010, available at http://www.dol.gov/whd/resources/strategicEnforcement.pdf.

19 See, e.g., National Labor Relations Board v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir.1982

20 Title VII, § 2000e-2(b).

21 U. S. Equal Employment Opportunity Commission, Compliance Manual Section 2: Threshold Issues (2000), available at http://www.eeoc.gov/policy/docs/threshold.html. The Guidance lists at least 16 factors for distinguishing between an employee and an independent contractor. These factors have been endorsed by the United States Supreme Court for use in Title VII cases. Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 449 (2003).

22 U.S. Equal Employment Opportunity Commission, Notice, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, December 1997, available at http://www.eeoc.gov/policy/docs/conting.html.

23 For example, there is inconsistency among the circuits regarding the test for joint employment: Most circuits use a four factor test to determine joint employment status, involving consideration of (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir. 1977); Lyes v. City of Riviera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir. 1998); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995); Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th Cir. 1994). But in Papa v. Katy Industries, Inc., the Seventh Circuit rejected the four-factor test and determined that the standard for applying the integrated enterprise theory should focus on the purpose of sparing small employers the "potentially crushing expense" of compliance with antidiscrimination laws. 166 F.3d 937, 940 (7th Cir. 1999), cert. denied, 120 S. Ct. 526 (1999).

24 See Board Member Liebman's concurrence in Airborne Freight Co., 338 NLRB 597 (2002), in which she invites the Board to reconsider its own joint employment policies: "the Board has focused since the mid-1980s on the putative joint employer's 'indicia of control' over another employer's employees, specifically whether the 'employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision and direction.' Laerco Transportation, 269 NLRB 324, 325 (1984). The Board's decisions, moreover, have required that the joint employer's control over these matters be direct and immediate. E.g., TLI, Inc., 271 NLRB 798 (1984), enfd. 772 F.2d 894 (3d Cir. 1985). .Given the growing practice in today's economy of contracting out essential functions, I hope that the Board soon will revisit the joint-employer doctrine, as the General Counsel has urged us to do here."

25 Under Title VII, an entity can be liable for interference with employment opportunitites, whether or not it is the direct employer of a worker, (as in the situation of a referral agency). Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir. 1973) (holding that an employer that controls access to employment opportunities can be held liable under Title VII, regardless of whether a direct employment relationship exists between the employer and the plaintiff).

26 Restaurant Opportunities Center of New York & the New York City Restaurant Industry Coalition, The Great Service Divide: Occupational Segregation & Inequality in the New York City Restaurant Industry, , March 2009, available at http://rocunited.org/the-great-service-divide/

27 E-mail exchange with Maureen Keffer, Indigenous Program Director, California Rural Legal Assistance, October 21, 2013.

28 Leticia Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 Mich. J. L.R. 447 (2008).

29 Research collected and cited in Leticia Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 Mich. J. L.R. 447 (2008).

30 Title VII, § 2000e-2(a)(2).

31 Marion v. Slaughter Co., 1999 WL 1267015 (10th Cir. 1999)(" [T]he fact, standing alone, that [the company] has all men in sheet metal positions and all women in assembly is not a per se violation of Title VII; nor is it self-proving as to the existence of a policy or practice, lawful or otherwise. The section of the statute to which the plaintiff refers . . . refers to segregation or classification that tends to deprive protected individuals of employment opportunity or otherwise adversely affect employment status. Thus, it is not the fact of separate *452 genders in departments that is prohibited, it is the deprivation of opportunity or adverse effect on status that is prohibited.")

32 See note 28, supra; Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace, 67 Ohio St. L.J. 961 (2006).

33 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).

34 As Professor Saucedo points out, the zero has been given different weight in different cases. She compares EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 879 (7th Cir. 1994) (using inexorable zero helped plaintiffs prove discrimination by a preponderance of the evidence), with Craik v. Minn. State Univ. Bd., 731 F.2d 465, 494 (8th Cir. 1984) (noting that zero is not inexorable without a showing of statistical significance).

35 Id.

36 Chellen v. John Pickle Co., 446 F. Supp. 2d 1247 (N.D. Okla. 2006).

37 Jennifer J. Lee, Private Civil Remedies: A Viable Tool For Guest Worker Empowerment, 46 Loy. L.A. L. Rev. 31 (2012).

38 Martha Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm. & Mary L. Rev. 2115, 2175 (2007).

39 EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) (undocumented workers protected under federal anti-discrimination laws).

40 29 U.S.C. § 215(a)(3); Sure-Tan, Inc. v. NRLB, 467 U.S. 883 (an employer's use of a worker's immigration status to retaliate for labor union activities is an unfair labor practice in violation of the National Labor Relations Act); Contreras v. Corinthian Vigor Insurance Brokerage, 103 F. Supp. 2d 1180 (N.D. Cal. 2000) (concluding that an employer's report to then-INS and Social Security Administration of an undocumented worker's status violated anti-retaliation provisions of the FLSA); EEOC v. City of Joliet, 239 F.R.D. 490 (N.D. Ill. 2006) (finding inquiry into employee's immigration status after filing of discrimination claim to be unlawful retaliation).

41 Scott Flaherty, Retaliation, Race Bias Top EEOC Complaints In 2012, Law 360, Jan. 29, 2013, available at http://www.law360.com/articles/410694/retaliation-race-bias-top-eeoc-complaints-in-2012.

42 Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities (Sept. 2, 2009), available at http://www.nelp.org/page/-/brokenlaws/BrokenLawsReport2009.pdf?nocdn=1.

43 Michael J. Wishnie, Introduction: The Border Crossed Us: Current Issues in Immigrant Labor, 28 N.Y.U. Rev. L. & Soc. Change 389, 391 (2004).

44 See, e.g., EEOC v. Fair Oaks Dairy Farm, L.L.C., No. 2:11 cv 265, 2012 WL 3138108 (N.D. Ind. Aug. 1, 2012); EEOC v. Kovacevich 5 Farms, No. 1:06-cv-01652007, WL 1599772 (E.D. Cal. June 4, 2007); EEOC v. The Restaurant Co., 448 F.Supp.2d 1085, 1086-88 (D. Minn. 2006); EEOC v. City of Joliet, 239 F.R.D. 490 (N.D. Ill, 2006); EEOC v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y. 2004). But see, EEOC v. Evans Fruit Co., No. CV-10-3033, 2011 WL 2471749, at *1 (E.D. Wash. June 21, 2011).

45 U.S. Equal Employment Opportunity Comm'n, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws EEOC Directives Transmittal No. 915.002, Jun. 27, 2002, available at http://www.eeoc.gov/policy/docs/undoc-rescind.html. (Jun. 27, 2002).

46 Rivera et. al. v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005).

47 City of Joliet, 239 F.R.D. at 492.

48 Id. at 493. See also, EEOC v. Evans Fruit, NO. CV-10-3033-LRS, (E.D. WA 2010) Amended Order Granting Preliminary Injunction to protect immigrant women plaintiffs from intimidation and retaliation.

49 See Naomi Earp, Chair, U.S. Equal Employment Opportunity Commission, EEOC Procedures for U Nonimmigrant Classification Certification (Jul. 3, 2008).

50 Equal Employment Opportunity Commission, EEOC Procedures: Requesting EEOC Certification for U Nonimmigrant Classification (U Visa) Petitions in EEOC Cases, (Feb. 5, 2013).

51 Pursuant to INA § 101(a)(15)(T), 8 U.S.C. § 1101(a)(15)(T), to receive a T-visa, an applicant must show that he or she: (I) is or has been a victim of severe form of trafficking in persons as defined in Section 103 of the Trafficking Victims Protection Act of 2000, (II) is physically present in the United States . . . or at a port of entry . . . on account of such trafficking, (III) (aa) has complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime; or . . . (cc) has not attained 18 years of age, and (IV) would suffer extreme hardship involving unusual and severe harm upon removal.

52 Victims of Trafficking and Violence Prevention Act of 2000 (TVPA), Pub. L 106-386, § 103(8), 114 Stat. 1464 (2000).