Question:

I know that retaliation claims by employees are on the rise. I also heard that the Fair Employment and Housing Commission recently issued a precedential decision regarding retaliation in the workplace. Could you please explain this new decision on retaliation?

Answer:

In December 2008, the Commission decided the case of Department of Fair Employment and Housing (DFEH) v. Terra Linda Farms. The case involved Terra Linda Farms, a Fresno, California onion grower who used farm labor contract workers from Green Valley Ag. Two such workers, Maribel Rivas and Maria Santillan, graded, sorted, and bagged onions as part of Terra Linda Farms’ packing operation every season for eleven straight years.

The packing shed manager, Alvaro Juarez, was in charge of the packing operation. The evidence showed that one day during the 2005 season, Mr. Juarez grabbed Ms. Rivas’s waist, pulling and twisting her skin, and he told her that if she did not behave, he would fire her. The Commission found that before her work at Terra Linda Farms began, Mr. Juarez had been violent with Ms. Rivas, and that after Ms. Rivas expressed that she was not interested in Mr. Juarez, he had slapped her, pointed a gun at her, and told her she would be sorry. After the 2005 incident, Ms. Rivas obtained a temporary restraining order against Mr. Juarez.

Ms. Rivas then asked Ms. Santillan to give the temporary restraining order documents to Mr. Juarez. Ms. Santillan presented the documents to Mr. Juarez, who threw them back at her. A few days later, the owners of Terra Linda Farms and Green Valley Ag called Ms. Rivas and Ms. Santillan to a meeting. The owner of Terra Linda Farms presented Ms. Rivas with a document stating that Mr. Juarez would no longer supervise her activities. The document also included a general release and waiver. Unable to read the document but in fear of losing her job, Ms. Rivas signed the document. The Commission held that despite their knowledge of Mr. Juarez’s behavior, the owners of Terra Linda Farms and Green Valley Ag did nothing to prevent Mr. Juarez from continuing to taunt and threaten Ms. Rivas and Ms. Santillan. After the 2005 season, Ms. Rivas filed a sexual harassment complaint with the DFEH against Terra Linda Farms, alleging that Mr. Juarez subjected her to a hostile work environment.
Shortly before the 2006 season, Ms. Santillan and Ms. Rivas inquired about their future employment. Representatives of Green Valley Ag, the labor contractor, refused to hire them back. As a result, Ms. Santillan and Ms. Rivas filed separate DFEH complaints against Green Valley Ag, alleging that they were retaliated against in violation of the Fair Employment and Housing Act. Thereafter, Ms. Santillan and Ms. Rivas entered into monetary settlement agreements with Green Valley Ag in exchange for withdrawing their complaints.

Months later, Ms. Rivas and Ms. Santillan filed complaints against Terra Linda Farms. Despite Terra Linda Farms’ arguments that they did not employ the complainants, the Commission held that Terra Linda Farms was liable as a joint employer for purposes of the Fair Employment and Housing Act. The Commission reasoned that Terra Linda Farms had input into hiring and firing decisions, and that they had control over the terms and conditions of the complainants’ employment. Therefore, they were joint employers with Green Valley Ag.

The Commission ruled that Terra Linda Farms illegally retaliated against Ms. Rivas and Ms. Santillan. Additionally, the Commission held that Terra Linda Farms failed to adequately investigate Mr. Juarez’s conduct and failed to take all reasonable steps to provide a discrimination-free workplace. The Commission ordered Terra Linda Farms to pay a total of over $111,000 for lost wages, emotional distress, and an administrative fine. Terra Linda Farms was also ordered to cease and desist its illegal retaliatory practices and to train its supervisors and managers about the prevention of unlawful employment practices.

This precedential decision highlights the fact that growers who use farm labor contract workers may be considered employers for purposes of the Fair Employment and Housing Act in certain instances. There are also other situations in which a joint employment relationship may exist. It also serves to remind employers of their obligation to promptly investigate claims of workplace harassment, and that it is illegal to retaliate against employees who engage in protected activity like reporting sexual harassment.
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