Monday, November 29, 2021

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 Abstract

Excerpted From: Alexandra Cotroneo, Sí, Se Puede: Why the Agricultural Industry's “Mujeres Imparables” Fight for Adequate Legal Remedies for Survivors of Sexual Assault Matters, 61 Santa Clara Law Review 627 (2021) (210 Footnotes) (Full Document)

AlexandraCotroneoSexual harassment affects all people in every industry. Women, however, endure higher rates of sexual harassment in the workplace. Between thirty-five to fifty percent of working women experience sexual harassment within the course of their career. Prior to the '#metoo’ movement, the magnitude of sexual harassment remained largely hidden. But as individuals stepped forward to share their “me too” stories, the stigma that often submits survivors into silence dissipated. While the entertainment industry amplified the “me too” conversation, the dialogue increased across industries. In solidarity with the Hollywood actors who exposed the sexual harassment within their industry, farmworkers in California penned their public support and illuminated the rampant sexual harassment within the agricultural industry:

Like you, there are few positions available to us and reporting any kind of harm or injustice committed against us doesn't seem like a viable option. Complaining about anything--even sexual harassment--seems unthinkable because too much is at risk, including the ability to feed our families and preserve our reputations. We understand the hurt, confusion, isolation and betrayal that you might feel. We also carry shame and fear resulting from this violence. It sits on our backs like oppressive weights. But, deep in our hearts we know that it is not our fault.

The farmworkers' open letter reflects the reality in which agricultural workers are uniquely susceptible to sexual harassment within the fields they work. Eighty percent of female immigrant farmworkers attested to encountering sexual harassment. The lack of adequate employment protections coupled with immigrant fieldworkers' unique vulnerabilities account for the high rate of sexual assault within this population.

This Note examines the limited federal remedies under the Civil Rights Act of 1991. First, the background section traces the development of labor protections, or lack thereof, for agricultural workers in the United States. Next, this Note identifies the legal problem at hand; specifically, the statutory cap on compensatory and punitive damages. Thereafter, this Note engages in a statutory analysis of the Civil Rights Act of 1991. This analysis addresses how the statutory cap aggravates certain vulnerabilities of fieldworkers, increasing the risk for sexual assault and decreasing the rate of reporting. Lastly, the proposal section discusses the removal of the statutory cap to eliminate the burden placed on survivors and to motivate agricultural employers to implement adequate protections for fieldworkers; this section also proposes the enactment of a federal compensation board to financially aid survivors whose available relief fails to assuage the economic loss resulting from their injuries.

[. . .]

Almost thirty years have passed since the passage of the Civil Rights Act of 1991. In nearly three decades, the availability of damages expanded for survivors of sexual assault; the 'me too’ movement sparked international, cross-industry dialogue on the issue of sexual harassment in the workplace; and, 144 women now hold office within the 117th Congress.

Amidst progressive change, the statutory cap on compensatory and punitive damages of the Civil Rights of 1991 remains unchanged--even with basic price inflation. In preserving the statutory caps, Congress devalues sex discrimination claims which severely harms survivors of sexual harassment; moreover, such caps disincentivize employers from implementing and enforcing employee protections in the workplace. Historically, Congress neglected labor protections, especially protections for women of color. The statutory cap of the Civil Rights Act of 1991 follows suit, particularly affecting female fieldworkers within the agricultural industry. Fieldworkers stand highly susceptible to sexual harassment in the workplace because unique vulnerabilities heighten their risk for discrimination. These vulnerabilities preclude survivors from seeking legal action, especially when the statutory cap fails to adequately provide relief. Thus, if Congress continues to deny proposals of reform, the injuries of sexual harassment survivors will continually fail to be redressed.


Senior Managing Editor, Santa Clara Law Review, Volume 61. B.S., Psychology and English, Santa Clara University, 2017; J.D. Candidate, Santa Clara University School of Law, 2021.


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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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