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Farmers advised to be vigilant against sexual harassment

Farmers were advised to be proactive in implementing sexual harassment policies during the Dunn Carney law firm’s annual Ag Summit in Salem, Ore.
Mateusz Perkowski

Capital Press

Published on January 30, 2018 9:16AM

Melina Mendoza, a human resources consultant, left, speaks about sexual harassment with Tim Bernasek, an attorney with Dunn Carney, at the law firm’s Jan. 26 Ag Summit in Salem, Ore.

Mateusz Perkowski/Capital Press

Melina Mendoza, a human resources consultant, left, speaks about sexual harassment with Tim Bernasek, an attorney with Dunn Carney, at the law firm’s Jan. 26 Ag Summit in Salem, Ore.

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SALEM — Long before the misadventures of Hollywood big shots made the headlines, sexual harassment claims were a problem in agriculture, according to attorney Tim Bernasek.

While the cases haven’t attracted as much publicity as the allegations against movie mogul Harvey Weinstein or actor Kevin Spacey, the federal government recently filed sexual harassment lawsuits against three farms, he said.

In another case, the U.S. Equal Employment Opportunity Commission won a jury verdict of more than $17 million on behalf on several female farmworkers in Florida who claimed they were fired for opposing sexual misconduct, Bernasek said.

“Folks, we need to be ready. These issues are serious,” he told farmers during the Jan. 26 Ag Summit in Salem, Ore., an annual event organized by the Dunn Carney law firm.

While sexual harassment claims are often brought by women, same-sex complaints by male workers have also been reported, he said.

Sexual harassment claims against companies often have common themes: An employee’s sense of being trapped and isolated, not knowing who to ask for help and a fear of retaliation, among others, Bernasek said.

Farmers don’t necessarily have a way to avoid sexual harassment claims entirely, but they can adopt strategies to prevent them from escalating, he said.

Companies must be upfront with a “zero tolerance” policy for any harassment or discrimination, which should be visibly posted on bulletin boards for workers, Bernasek said.

Ideally, employers should strive to prohibit intimate relationships between supervisors and workers — or even between workers altogether — but this isn’t realistic in agriculture, where migrant workers are often from the same families, he said.

Sexual harassment policies should provide employees with a designated person to receive complaints who is not a supervisor, since supervisors are often the alleged source of the problem, Bernasek said.

The policies should also be drilled into the owners and managers of the company, as well as the supervisors.

“You have to do repeated trainings on this issue,” he said.

There are several grounds for opening a sexual harassment investigation, including hearing complaints or rumors, witnessing problem behavior, or receiving an inquiry from a government labor regulator, said Melina Mendoza, a human resources consultant.

Such inquiries should focus on the facts — what occurred, when, where and who else witnessed it — rather than opinions, Mendoza said.

“Be open-minded about what’s being conveyed to you,” she said.

Growers should be prepared for sexual harassment problems to arise during the most inconvenient times, said Bernasek. “Don’t shrug it off. Listen.”

When interviewing a worker who reports sexual harassment, the employer must disclose that accusations cannot remain confidential, said Mendoza. In some cases, it’s better to hire an attorney or another outside party to conduct investigations.

If a farmer agreed to keep quiet about an allegation, the company could later be accused of willfully failing to take action, she said.

“You need to let that employee know, ‘I cannot just do nothing about it,’” Mendoza said. “You must act. You don’t have a choice to just listen.”

For this reason, it’s important the employer communicate the company’s anti-retaliation policy and follow through on it, Bernasek said.

An employee alleging sexual harassment should be separated from the accused perpetrator, but the worker needs to understand why the change is occurring, he said.

“Creative lawyers on the other side have made this into retaliation,” Bernasek said.

The subject of retaliation is sensitive, since it’s not limited to severe measures, such as a demotion or termination, he said.

Reassignments to less desirable tasks, exclusion from activities and a lack of communication can also be seen as vindictive, Bernasek said. Dealing with sexual harassment is tricky, since a “farm is not a convent,” and some coarse language will inevitably be used, he said.

Even so, supervisors need to avoid creating a problematic culture by telling the crudest jokes and using the coarsest language, Bernasek said.

The reality of employing workers is that sexual harassment claims will arise, so farmers need to use their best judgment, he said. “There is no free pass in any of this. It’s risk management.”


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