Regulating Marginalized Labor

Abstract

Farmworkers are one of many vulnerable groups who exist largely in the shadows of the law. While there is a relatively robust regulatory framework that ostensibly governs the conditions under which they work, it is highly fragmented and seldom enforced. One agency, the Equal Employment Opportunity Commission (EEOC), has emerged as an important exception, adopting innovative strategies to secure substantial settlements and a wide range of injunctive relief. Decades before contemporary movements on behalf of low-wage workers of color began, the EEOC was mounting an initiative to bring farmworkers into the core of Title VII’s protections and jurisprudence. Drawing upon an original database of EEOC farmworker litigation and interviews with both EEOC employees and farmworker advocates, this Article provides the first empirical analysis of the agency’s groundbreaking initiative over the past two decades, which has escaped the attention of legal scholars.

Conventional accounts of the EEOC portray an agency hampered by managerialist, bureaucratic approaches that do little to combat systemic discrimination. By contrast, I argue, the Commission’s farmworker initiative evinces a carefully tailored, creative approach that has enabled it to surmount many of the bureaucratic obstacles that have hindered other agencies in this context. At least two features were critical to its success. First, the EEOC’s de-centralized, entrepreneurial structure permitted this initiative to diffuse from the bottom up within the agency and helped to insulate it from oscillation across administrations. Second, its unique and sustained partnerships with advocacy organizations enabled the Commission to respond effectively to the needs of this isolated, vulnerable population. These findings contribute to a growing literature on how to entrench the enforcement of civil rights within administrative agencies. This Article further echoes the call to reinvigorate the enforcement apparatus of the federal government. As it suggests, the EEOC’s trajectory provides insight into how to develop a more robust vision of public enforcement in the context of marginalized communities like farmworkers.

Keywords: farmworkers, immigration, administrative law, EEOC