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Idaho’s farmers should prepare to be targeted

The U.S. Equal Employment Opportunity Commission is targeting the Northwest’s farmers.

For the uninitiated, the EEOC is a federal agency that enforces federal laws against workplace discrimination. The commission receives and investigates thousands of charges of discrimination brought by employees throughout the United States, but only brings suit upon a small percentage of those charges.

Over the past five years, the commission received an average of 97,592 charges per year but filed an average of 273 lawsuits per year. If you like statistics, your odds of being sued by the EEOC once a charge has been filed are 0.28 percent, or about 1 out of every 357 charges.

But Idaho farmers should not take comfort in these statistics. The EEOC has made “systemic enforcement and targeted outreach” a national priority. According to the EEOC, a systemic case is a “pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” In plain English, a systemic case is an “example-setting” case; they are costly to defend, time consuming and often involve publicity.

In the past five years, the commission has focused on the agriculture industry. It has filed suit against many Northwest farmers, from an onion farm in Nyssa, Ore., to a vineyard in Othello, Wash., asserting claims of sexual harassment on behalf of female farmworkers. And the commission’s focus on farmers is likely to continue for the foreseeable future. Among the EEOC’s six enumerated national priorities for 2013-2016 is “to target harassment … and discriminatory policies affecting vulnerable workers” including immigrant and migrant workers.

The commission has broad authority and often uses aggressive litigation tactics that can have a devastating affect on employers. Most employers settle with the EEOC, but not all. In 2010, the EEOC sued Evans Fruit Company, an apple grower in Cowiche, Wash., claiming that a ranch foreman and several ranch hands had sexually harassed female farmworkers. The EEOC’s suit began with the claims of three women. By the end of 2011 and after a coordinated publicity effort by the EEOC, which included newspaper articles, radio announcements and a town hall meeting, there were 26 women alleging sexual harassment.

Bill and Jeannette Evans started Evans Fruit in 1949 with the purchase of 10 acres. Over the years they worked every aspect of their business side-by-side, and the business grew to 7,500 acres. Now, well into what should be their retirement years, they still work six days a week. Bill Evans runs the farming side of the business, and Jeannette Evans runs the office and sales desk. Like most farmers, their company is more than their business; it is their life.

From the very beginning the Evanses fostered a company culture parallel to their own family values: a culture of responsibility, respect and common sense. That common-sense culture was embodied in their workplace policies that encouraged workers to take their complaints not satisfactorily resolved at lower levels in the company directly to Bill and Jeannette Evans. Notably, before the EEOC brought suit on their behalf, not one of the 26 women complained about sexual harassment. The Evans did not believe the allegations were credible and refused the EEOC’s multi-million dollar settlement demands. The EEOC promised they would make defending the lawsuit extremely expensive, and they did.

A jury trial began on March 18, 2013, in Federal Court in Yakima, Wash. Evans Fruit was able to have 11 of the claims dismissed prior to trial, and one claimant was dismissed when she failed to appear at trial. On April 3, 2013, after a two-and-a-half week trial, a jury returned a complete defense verdict in favor of Evans Fruit. A nine-member jury, seven men and two women, unanimously found in favor of Evans Fruit, finding none of the claimants had proved that she was subjected to a hostile work environment.

Brendan Monahan, Evans Fruit’s lead attorney, criticized the EEOC for what he called its “unreasonable investment in a narrative that was built on demonstrably false claims.”

Every case has its unique facts, and the Evans Fruit case is no exception, but the case also provides some general guidance to other agricultural employers.

First, employers should have written workplace and sexual harassment policies that provide a clear explanation of prohibited conduct and an accessible complaint process. Each employee should receive a copy of the policy in a language they understand, and copies of the policy should be posted where employees can see them.

Second, employers should make sure that they are actually implementing their policies. Any complaints from employees should result in a prompt, impartial and confidential but well-documented investigation that protects the employee’s identity to the extent possible. Prompt remedial action should be taken if harassment is found to have occurred.

Finally, regardless of the outcome of any complaint, the employer must ensure that the complaining employee is not subjected to retaliation for making a complaint.

So far, the EEOC has not filed any lawsuits in Idaho. For the last four years, the EEOC has received an average of 84 charges per year from Idaho compared to 276 charges received from Oregon and 1,271 charges received from Washington. However, the case against Evans Fruit was brought by the EEOC’s Seattle Field Office, which also has jurisdiction over Idaho. It’s no secret that the EEOC is targeting agricultural employers. Idaho’s farmers should be prepared.

Stokes Lawrence’s trial team of Brendan Monahan, Carolyn Cairns, Sarah Wixson and Justo Gonzalez argued the case for Evans Fruit. Wixson, who practices in Yakima, Wash., is a University of Idaho College of Law graduate and a member of the Idaho Bar.

About Sarah L. Wixson