By Reema Kapur and Abigail Cahak
The Equal Employment Opportunity Commission (EEOC) is stretching Title VII jurisprudence to fight modern human trafficking. While the Commission’s goal is laudable, its legal theories are not grounded in existing law. This post addresses whether the EEOC’s novel expansion of federal employment discrimination statutes to address trafficking is necessary or desirable, especially in light of the existing civil and criminal statutory schemes already on the books.
Understanding “Human Trafficking”
The term “human trafficking” encompasses “labor” and “sex” trafficking. Federal law defines sex and labor trafficking respectively as “the recruitment, harboring, transportation, provision, or obtaining of a person” for either “the purposes of commercial sex act” or “for labor or services” which is induced or obtained “through the use of force, fraud, or coercion.” Although conceptually distinct, the line between these two types of trafficking does often blur.
According to the Justice Department’s Bureau of Justice Statistics, 14% of human trafficking incidents between 2008 and 2010 fell into the latter group of labor trafficking, with 82% deemed as sex trafficking. While sex trafficking most commonly occurs in the context of brothels, “hostess” clubs, and other sex industry settings, labor trafficking can be more varied.
Efforts To Counteract Human Trafficking
Anti-trafficking laws exist at the federal level and in all 50 states as well as the District of Columbia. Traditional methods of counteracting human trafficking have largely focused on criminal prosecution and targeting organized crime.
Recently, the Obama Administration has made a concerted effort to raise awareness of human trafficking. In conjunction with public awareness campaigns, the White House has overseen a push across many federal agencies to tackle human trafficking from all angles. Among other things, this initiative has included the proposed adoption of rules to prevent the use of forced labor in conjunction with government contracts and creation of the National Human Trafficking Resource Center (NHTRC). The NHTRC is spotlighted on various federal agency websites, including the EEOC website. While the NHTRC is not a law enforcement or immigration agency, it may forward tips it receives to local, state, and/or federal law enforcement authorities if deemed appropriate.
Human Trafficking In The EEOC’s Crosshairs
According to the EEOC, employment discrimination laws are the “new frontier” in the war against human labor trafficking. The EEOC’s position is not without controversy because Congress has limited the EEOC’s authority to enforce particular statutes, none of which specifically address human trafficking. As an end-run around this limitation, the EEOC has pushed courts to analyze human trafficking under the rubric of Title VII race or national origin discrimination claims. It has argued that “[a]nti-discrimination laws — particularly those prohibiting race and national origin discrimination as well as sexual harassment — are an integral part of the national fight against human labor trafficking.”
The EEOC foreshadowed its focus on human trafficking and forced labor as early as January 19, 2011 when, at a public hearing, it held a panel on the topic. In the Spring of 2011, the EEOC flexed its litigation muscles when it filed lawsuits against two employers purportedly on behalf of hundreds of workers. In both lawsuits, the EEOC alleged that the employers had engaged in race and national origin discrimination when they trafficked foreign workers into the United States. In the first, the EEOC sued a marine services company alleging that it had subjected a class of approximately 500 Indian employees to human labor trafficking and a hostile work environment. Discovery in that case is ongoing. In the second case, the EEOC sued a manpower agency alleging that it engaged in a pattern or practice of national origin and race discrimination, harassment, and retaliation, when it trafficked over 200 Thai male victims to agricultural farms in the United States. That case is also ongoing. (To read more about that case read our previous posts here and here). Finally, the most current version of the EEOC’s Strategic Enforcement Plan (SEP), identifies as a national priority “Protecting Immigrant, Migrant and Other Vulnerable Workers.” Under this priority, the EEOC has vowed to “target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.”
Preventing Human Trafficking While Ensuring The Legal Integrity Of Those Efforts
Without a doubt, vulnerable workers deserve protection and it is a societal responsibility to push for legal — and ethical — labor practices. However, the question remains: how do we best prevent human trafficking while ensuring the legal integrity of those efforts? Although human exploitation should be attacked using all available means, the EEOC is not well-equipped to do so.
The plain language of Title VII prohibits discrimination based on race, color, religion, national origin, or sex. And the EEOC is only authorized to enforce Title VII as written. Although the EEOC seemingly accepts as obvious that Title VII covers “human trafficking,” this argument is in fact a novel extension of Title VII, well beyond statutory language and the EEOC’s enforcement authority as defined by Congress. Because the EEOC can only bring suit under its limited statutory authority, human trafficking claims must be shoehorned into one of Title VII’s protected categories.
To do this, the EEOC must draw unsupported inferences to tie human trafficking allegations to discrimination on the basis of race, sex or national origin. This forces the EEOC to litigate human trafficking by proxy — it must convince a court that individuals targeted for their economic vulnerability are necessarily targeted for their national origin, race, or sex. Although the two often coincide, a correlation is not necessary and having to make this connection in each instance would dilute the force of the EEOC’s arguments. In sum, the unintended consequence of the EEOC’s tactics is to direct the parties’ and courts’ attention away from human trafficking to address whether the facts support a claim for discrimination under a recognized protected category.
In addition to lacking a legal mandate to pursue human trafficking cases, the EEOC also lacks the necessary resources. The EEOC plainly admits that it is a cash-strapped organization. For example, in a September 23, 2013 open letter, P. David Lopez, EEOC General Counsel, acknowledges that the EEOC only brings suit in less than 1% of cases. Furthermore, the continued efficacy of the agency — as cautioned by the union representing EEOC employees — has been repeatedly called into question in the face of continuing budget cuts. The EEOC, employers, and workers are better served if the EEOC focuses its resources while staying within its legal mandate.
How the EEOC will fare financially after the recent government shutdown remains to be seen, however, it is clear that it continues to see itself as on the front line in the war against human labor trafficking.
Readers can also find this post on our Workplace Class Action blog here.