Photo Credits: Centro de Los Derechos del Migrante
Working with Centro de Los Derechos del Migrante and other partner organizations, ’20-’21 Justice Catalyst Fellow Amy Tamayo filed the first-ever labor complaint under the U.S.-Mexico-Canada Agreement on behalf of migrant worker women on temporary labor migration programs. The press release is available at https://cdmigrante.org/migrant-worker-women-usmca/ and reproduced below.
Amy Tamayo is a ’20-’21 Justice Catalyst Fellow at Centro de Los Derechos del Migrante addressing the endemic sex discrimination that migrant workers face in recruitment and employment. To listen to petitioners Maritza Perez, Adareli Ponce, and other allies speak about the complaint, please watch their video here.
FOR IMMEDIATE RELEASE: March 23, 2021
Contact: Evy Peña (email@example.com)
Migrant Worker Women File First Complaint against the U.S. Government under the United States-Mexico-Canada Agreement
MEXICO CITY, MEXICO — Today, migrant worker women and a binational coalition of civil society organizations filed the first complaint against the U.S. government under the United States-Mexico-Canada Agreement (USMCA). Petitioners are accusing the U.S. government of failing to enforce its labor laws against sex-based discrimination for migrant worker women on temporary labor migration visas, violating its obligations under Article 23 of the USMCA. The coalition is led by the binational organization Centro de los Derechos del Migrante, Inc. (CDM).
Hundreds of thousands of migrant workers travel to the U.S. every year to work on H-2A agricultural visas and H-2B visas in non-agricultural industries, such as construction and seafood processing. According to data from the Department of Homeland Security, about 90% of H-2A workers are from Mexico. Through discriminatory recruitment and hiring practices, women are largely excluded from accessing these visas. For example, in 2018 3% of all H-2A visas were issued to women, while women made up approximately 25% of all farm laborers in the United States. Migrant worker women who are hired on H-2 visas are often channeled into lower-paying jobs under the programs and face gender-based violence.
For 15 years, CDM has documented how the U.S. government has allowed systemic sex-based discrimination. Advertisements for H-2 work on social media and in communities across Mexico reveal open sex-based discrimination in recruitment. The lack of oversight of the hiring process enables U.S. employers to dodge responsibility for H-2 gender discrimination
Submitted to the Labor Policy And Institutional Relations Unit Through The General Directorate Of Institutional Relations In The Secretariat Of Labor And Social Welfare (STPS), this is the first complaint filed against the United States under the new trade agreement and serves as an important test of the USMCA’s rules and enforcement mechanisms. Article 23.3 of the USMCA declares that parties adopt and maintain rights including “the elimination of discrimination in respect of employment and occupation.” Article 23.8 establishes that parties must ensure that migrant workers are protected under its labor laws. In the U.S., Title VII of the Civil Rights Act of 1964 forbids discrimination and recruitment in hiring as well as prohibits employers from discriminating against a worker based on sex “with respect to compensation, terms, conditions, or privileges” of employment.
“All eyes are on the governments of Mexico and the US. This is the first complaint filed against the U.S. government under the USMCA, and it’s a clear-cut case: look at statistics, documented cases and discriminatory job ads on social media. Gender-based discrimination isn’t just entrenched in guestworker programs — it goes completely unabated,” said Rachel Micah-Jones, founder and executive director at CDM. “By failing to enforce its anti-discrimination laws, the U.S. is fostering gender inequity. The governments of Mexico and the US need to respond promptly and meaningfully to prove that the labor protections under the USMCA aren’t just words on paper.”
CDM filed two complaints under the NAFTA labor side accord, the North American Agreement on Labor Cooperation (NAALC). These included a 2016 petition alleging inadequate action to combat H-2 gender discrimination that received a characteristically weak response from the Mexican government. When the NAFTA renegotiation began, CDM mobilized allies to enshrine labor protections in the new labor agreement. CDM representatives and worker leaders testified before the U.S. Trade Representative, arguing the need for an integrated labor chapter with real enforcement to replace the feeble NAFTA side accord.
“Discrimination has been present in my life since the first time I tried to get a work visa in 2001,” said Adareli Ponce Hernandez, co-petitioner and member of CDM’s Migrant Defense Committee. “Now, history is repeating itself: women are seeking equality of opportunity under the H-2 visa with negative results. I hope that the United States changes its policies to prevent discrimination against us women — we need equal opportunities.”
The USMCA complaint outlines enforcement measures for the U.S. to adopt in order to ensure access to justice and adequate oversight. Recommendations include:
- The Equal Employment Opportunity Commission’s (EEOC) and state agencies charged with implementing anti-discrimination policy should make their complaint processes accessible to H-2 workers by setting up a 24-hour complaint hotline in multiple languages, including indigenous languages and Spanish.
- The EEOC and DOL should affirmatively allocate more resources to investigating and monitoring H-2 workplaces for sex-based labor segregation.
- Access to legal services, including federally funded legal services should be extended to all H-2 workers.
- The DOL, DOS, and United States Citizenship and Immigration Services (USCIS) should improve record keeping and data transparency to allow for better monitoring of sex distribution in the H-2 programs, including by occupation and wage.
The United States and Mexico should develop cooperative activities which address “gender-related issues in the field of labor and employment, including the elimination of discrimination on the basis of sex in respect of employment, occupation, and wages.
“I’d like to tell the working women who are facing abuse that when I decided and chose to speak up, I was very afraid due to painful experiences,” said Maritza Perez, a co-petitioner and former farmworker on an H-2A visa. “But let’s have faith and courage to raise our voices, looking inside ourselves to find the strength to demand that our rights as migrants be upheld.”
To read the complaint, please visit: https://cdmigrante.org/migrant-worker-women-usmca/
Additional statements of support:
Mily Treviño-Saucedo, Executive Director at Alianza Nacional de Campesinas said: “Life for immigrant farmworkers in the United States is tough. First, too few farmworker women qualify for the program due to gender discrimination. Second, people who do receive the H-2A visa still worry about losing their visas, so they are afraid of confronting abuse at work. The situation is worse for the few rural women who get an H-2A visa because it is likely that she is the breadwinner, so it is very difficult for her to speak up and report sexual harassment (which is very common in the fields), discrimination or wage theft. Not only does she risk losing the job, but also also their immigration status, which is tied to that same employer. If they lose their job, they can also be deported.”
Mónica Ramírez, Founder and President of Justice for Migrant Women: “I’m honored to link arms with our friends at CDM and migrant worker women who are calling for justice. Too often migrant women experience unjust working conditions; they’re discriminated against because they’re women. We’re calling on the U.S. government to ensure that migrant women workers — wherever they come from — receive the full benefit of the law. Employers should be held accountable; they shouldn’t be allowed to exploit these women workers. We will not stand for it.”
“It is critical that we ensure adequate enforcement of our anti-discrimination and anti-harassment laws related to all workers in the U.S.,” said Jessica Ramey Stender, Senior Counsel for Workplace Justice and Public Policy at Equal Rights Advocates. “All workers deserve a safe and equitable working environment where they’re treated with dignity and respect.”
Sara Nelson, International President, Association of Flight Attendants-CWA: “AFA was founded by women who knew the cost of gender-based discrimination in the workplace all too well. For more than 75 years, our union has worked to end all forms of discrimination in our workplaces and our society. Migrant women are among the most vulnerable workers. It’s time for our government to make it clear that exploitation and discrimination will not be tolerated, and we stand with migrant women and their allies to demand that the US government abide by its obligations under the USMCA to enforce strong labor standards in all member nations.”
“The AFL-CIO has long called for reform of our temporary work visa programs, which fail to ensure basic worker rights and protections. We applaud CDM for shining light on the way that these programs have enabled discrimination and gender-based violence, and we urge the U.S. government to take immediate and decisive action in response to the recommendations outlined in this complaint. America’s unions standing proudly in solidarity with migrant worker women, and as we do with all workers in the region. We must no longer allow guestworker programs to serve as a tool to quietly re-segregate sectors of the workforce into jobs and visa categories based on racialized and gendered notions of work. Moreover, we need labor standards enforcement mechanisms in place to ensure that employers are no longer able to violate the rights of migrant workers with impunity. Reforming these programs and ensuring enforceable rights for all workers, regardless of status, is critical to meeting the mandate for a level playing field under the USMCA,” said Cathy Feingold, AFL-CIO International Director.
About Centro de los Derechos del Migrante, Inc. (CDM)
Centro de los Derechos del Migrante, Inc. (CDM) envisions a world where migrant workers’ rights are respected, and laws and policies reflect their voices. Through education, outreach, and leadership development; intake, evaluation, and referral services; litigation support and direct representation; and policy advocacy; CDM empowers migrant workers to defend and protect their rights as they move between their home communities and their workplaces in the United States. www.cdmigrante.org