EEOC, Hawaii Farms Settle for $2.4 Million Claims of Bias Against Thai Guest Workers

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By Kevin P. McGowan  

June 3 — The Equal Employment Opportunity Commission and four Hawaii growers that used Thai guest workers supplied by labor contractor Global Horizons Inc. have settled for $2.4 million an EEOC suit alleging the growers discriminated against the Thai workers based on race and national origin, the EEOC announced June 3.

The proposed settlements, which still must be approved by the U.S. District Court for District of Hawaii, follow that court's ruling earlier this year that Global Horizons violated Title VII of the 1964 Civil Rights Act by engaging in a “pattern or practice” of harassment and discrimination against the Thai workers.

In a high-profile human trafficking case, the EEOC in 2011 sued Global Horizons, six growers in Hawaii and two growers in Washington state, alleging Global Horizons misled impoverished Thai workers forced to pay high registration fees to come to the United States as guest workers and then subjected them to substandard housing, confiscation of passports, withholding of pay and harassment on the job by Global and the various growers.

The current settlements cover defendants Mac Farms of Hawaii LLC, Kauai Coffee Co., Kelena Farms Inc. and Captain Cook Coffee Co.

Under four separate proposed consent decrees benefiting about 500 Thai workers who worked between 2003 and 2007, Mac Farms would pay $1.6 million, Kauai Coffee would pay $425,000, Kelena Farms would pay $275,000 and Captain Cook Coffee would pay $100,000 to the alleged discrimination victims in amounts to be determined by the EEOC.

Global Horizons and Maui Pineapple are the only defendants left in the Hawaii litigation, as Del Monte Fresh Produce Inc. last year settled with the EEOC for $1.2 million.

A damages trial against Global Horizons is scheduled to begin Nov. 15 in federal district court in Hawaii, said Anna Park, the EEOC regional attorney in Los Angeles.

Pacts to Mandate Training, Accountability

The proposed consent decrees also include “sweeping injunctive relief” to ensure U.S. farms and farm labor contractors distribute anti-discrimination policies and procedures to their local workforces as well as to H2-A guest workers in languages they understand, the EEOC said.

The decrees also would require the farms to conduct audits to ensure farm labor contractor compliance with the decrees, to designate a corporate compliance officer to oversee farm labor contractor compliance with Title VII and to train managers, supervisors and employees on their obligations under Title VII, the EEOC said.

Kelena Farms would provide 37 full-time jobs with “generous benefits” for members of the Thai worker class interested in returning for work and Captain Cook would set aside 10 seasonal jobs for Thai claimants, Park said at a June 3 press conference in Honolulu announcing the settlement.

The proposed consent decrees include “sweeping injunctive relief” to ensure U.S. farms and farm labor contractors distribute anti-discrimination policies and procedures to their local workforces as well as to H2-A guest workers in languages they understand, the EEOC said.

The Thai workers entitled to share in the settlement now are scattered throughout the United States and some have returned to Thailand, Park said.

The settlements “serves as a reminder to the agricultural industry to remain ever-vigilant in hiring and monitoring farm labor contractors,” Park said in a June 3 statement. “We all have a responsibility to ensure that the most vulnerable workers are not denied basic human dignity and life-sustaining water and food. Farms and farm labor contractors—and the supervisors that represent them—must ensure workers' civil rights remain intact, no matter their race or the country they come from.”

“This resolution reflects the commission's redoubled effort to challenge discriminatory practices against the most vulnerable workers who live and work in the shadows of the economy,” EEOC General Counsel David Lopez said in a June 3 statement. “This case strikes a blow at one of the root causes of human trafficking—discrimination on prohibited bases.”

EEOC Loses Claims in Washington State

Meanwhile, a federal district court in Washington state has ruled the EEOC lacks triable Title VII race or national origin discrimination claims against two fruit growers that used Thai guest workers supplied by Global Horizons (EEOC v. Global Horizons, Inc.,2014 BL 150555, E.D. Wash., No. 11-3045, 5/28/14).

In a May 28 decision, the U.S. District Court for the Eastern District of Washington said although Green Acre Farms Inc. and Valley Fruit Orchards may be “joint employers” with Global Horizons, the EEOC can't prove Green Acre or Valley Fruit unlawfully harassed, discriminated or retaliated against the Thai employees who worked in their orchards.

Applying a multi-factor test, the court said the two growers might be joint employers with Global Horizons of the Thai guest workers who toiled in their orchards.

But the EEOC failed to raise triable issues that the growers either harassed Thai workers on an individual basis or engaged in a “pattern and practice” of race or national origin harassment, Judge Edward F. Shea ruled.

The EEOC failed to meet its burden of showing the growers, as opposed to Global Horizon representatives, harassed individual Thai claimants, the court said.

“There simply is no evidence to support a finding that any grower defendant owner or manager engaged in physical conduct toward a Thai claimant, and there is no evidence to support a finding that the grower defendants' verbal discussions with a Thai claimant, which were all done through a Thai interpreter, were either objectively or subjectively hostile and based on the Thai claimant's race or national origin,” the court said.

To the extent the growers' representatives talked with individual Thai workers about how to handle the fruit or the growers' expectations about the pace of work, the court said those discussions can't be deemed unlawful harassment.

Some Thai claimants alleged Global Horizon representatives called them derogatory terms in the Thai language, including those meaning “lizard” and “stupid,” the court recounted.

But no evidence indicates the growers' representatives spoke Thai or were present when the alleged derogatory terms were used, the court said.

“Instead, the evidence clearly shows that the grower defendants' personnel did not understand or speak Thai and that all communications with the Thai claimants and the grower defendants' personnel were through Global interpreters,” the court said.

No ‘Pattern or Practice' Claim

The EEOC also can't pursue a “pattern or practice” claim against the growers because nothing indicates race or national origin harassment was their “standard operating procedure,” the court said.

The EEOC said the growers subjected the Thai workers to abusive working conditions by setting unreasonable production quotas, inspecting the Thai employees' work and reprimanding them for not picking fruit properly or meeting production goals, and assigning easier jobs to workers of Hispanic descent.

But the court said no evidence indicates the growers' production quotas were objectively unreasonable or were based on workers' race or national origin.

Most of the Thai workers' complaints about unpleasant conditions related to their housing and transportation, matters within Global's exclusive control, the court said.

The EEOC therefore lacks sufficient evidence to pursue a “pattern or practice” claim based on alleged race or national origin harassment, the court said.

“Title VII is not aimed at eliminating all unpleasant, rude and unwelcome conduct in the workplace; rather, its aim is to prevent discrimination in the workplace based on a listed protected status,” Shea wrote. “Accordingly, even viewing the evidence in the light most favorable to the EEOC, the court grants the grower defendants' motion for summary judgment on the pattern-and-practice hostile work environment claim.”

The EEOC is considering an appeal of the district court decision to the Ninth Circuit, regional attorney Park said June 3.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the proposed settlements is available at http://www.bloomberglaw.com/public/document/Equal_Employment_Opportunity_Commission_v_Global_Horizons_Inc_et_/6; http://www.bloomberglaw.com/public/document/Equal_Employment_Opportunity_Commission_v_Global_Horizons_Inc_et_/7; http://www.bloomberglaw.com/public/document/Equal_Employment_Opportunity_Commission_v_Global_Horizons_Inc_et_/8; and http://www.bloomberglaw.com/public/document/Equal_Employment_Opportunity_Commission_v_Global_Horizons_Inc_et_/9. Text of the district court decision is avaiable at http://www.bloomberglaw.com/public/document/EEOC_v_Global_Horizons_Inc_No_CV113045EFS_2014_BL_150555_ED_Wash_.