This is a guest post contributed by Kadian Crawford, a rising third-year law student at the University of Miami School of Law and fellow with the Human Rights Clinic, and Denisse Córdova Montes, a human rights lawyer and Practitioner-in-Residence at the University of Miami School of Law Human Rights Clinic.
In Southeastern U.S.A., 77% of low-paid migrant women workers revealed that workplace gender-based violence (GBV) is a major problem for them.[i] In a survey[ii] of 73 domestic workers in Miami, Florida, 82.2% of survey respondents said they do not have set working hours, 30.1% said they do not have a written employment contract, and 23.3% reported minimum wage violations.
The University of Miami School of Law’s Human Rights Clinic[iii] (HRC) and South Florida-based organizations WeCount!, Miami Worker’s Center, and Community Justice Project, form the Voces Unidas Coalition (the Coalition). In 2019, the HRC supported the Coalition’s work on GBV against low-paid migrant women workers in South Florida by using the International Labour Organization (ILO) Convention on Violence and Harassment (Convention 190) to advocate for low-paid migrant farmworkers, plant nursery workers, and domestic care workers facing workplace GBV.
Using human rights to advance our collective vision
The HRC supported the Coalition by drafting a civil society submission for the UN’s Universal Periodic Review (UPR)[iv] of the U.S. Our UPR submission[v] documented the human rights violations against low-paid migrant farmworkers, domestic care workers, and plant nursery workers populations. We documented violations occurring locally in South Florida by conducting focus groups, surveys, and interviews with workers who had witnessed or endured workplace GBV. Additionally, the National Domestic Workers Alliance contributed to the submission with numerous examples of sexual harassment and sexual violence in the world of work occurring throughout the U.S. Our submission identified a number of workplace violations that make workers vulnerable to workplace GBV: lack of a written contract, wage theft, lack of rest and meal breaks, and lack of paid sick leave. In addition, we identified significant under-reporting of sexual harassment as a result of stigma and shame, immigration status, job insecurity, isolation, lack of information, and a general distrust of reporting mechanism.
ILO Convention 190 says that in order to prevent and eliminate violence and harassment in the world of work, a State should have a comprehensive strategy in responding to workplace sexual harassment; it must protect against and prevent workplace sexual harassment by enacting laws and following good practices; and it must enforce such laws and practices and provide an adequate remedy to those who have experienced workplace sexual harassment. Following this framework, our submission to the UPR demanded that the U.S. government adopt the following recommendations to address workplace GBV:
- Enact a Federal Domestic Workers Bill of Rights to formalize the industry and ensure there are enforcement mechanisms in place to protect and respond to workers experiencing workplace GBV.
- Enact the Civil Rights Act of 2008 to hold recipients of federal funds accountable for discrimination that happens on their watch. This legislation would allow victims of civil rights violations and fair labor laws to challenge practices that have an unjustified discriminatory effect based on race, national origin, sex, age or disability.
- Eliminate the Statute of Limitations for reporting workplace GBV. Statutes of limitations act as barriers to reporting GBV. There are many reasons victims choose not to report an attack immediately. Currently, if the state or municipality where the GBV happened does not have a Fair Employment Practices Agency (FEPA), an employee that has experienced GBV at work must file a complaint of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days (6 months) from the date the discrimination took place. If the state or municipality does have a FEPA, the statute of limitations extends to 300 days (10 months) from the date the discrimination happened.
- Ensure workplace assessments are structured “around an intersectional analysis that considers factors of gender, race, class, sexual orientation, sexual identity, nationality and other experiences and identities, in order to understand the root causes of oppression, exploitation and poverty. This analysis is incomplete without examining the combined effect of the institutional and individual violence against women.”
- Legislate the adoption of due diligence mechanisms so that employers take meaningful responsibility for working conditions in their supply chains to ensure that subsidiaries, subcontractors, franchisees and other partners prevent and address GBV.
- Strengthen agricultural workers’ efforts to address workplace GBV through alternative models to traditional corporate social responsibility, such as the worker-driven social responsibility model.
- Ratify CEDAW, the ICCPR’s optional protocol, the ICESCR, and ILO Convention 190.
Why we decided to apply ILO Convention 190 to address workers’ rights violations
Even though the U.S. has not yet ratified ILO Convention 190, it provides a playbook of sorts on how States can remedy the situation of GBV in the world of work. Wide adoption of the ILO Convention 190, including by the U.S., has raised standards everywhere of how aspirational we can be when it comes to facing and eradicating GBV in the world of work.
Ratification would make these standards legally binding. In addition to grounding our UPR submission in the ILO Convention 190, we used the International Convention on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) to strengthen our human rights-based arguments and recommendations.
In doing this work, we learned that the U.S. has recognized the right to equality and non-discrimination in the workplace by ratifying the ICCPR and the ICERD. The U.S.’s ratification of these instruments enables civil society to hold the U.S. government accountable for its obligations under these human rights treaties. Although the U.S. has not ratified CEDAW, its provisions and concluding observations can still be used as persuasive arguments. Moreover, even though the U.S. has not ratified ILO Convention 190, its adoption allows civil society to use it to advocate for a more comprehensive framework in responding to workplace GBV that necessitates attacking the root of the problem, which is systemic inequality.
Looking forward, the HRC will continue using human rights frameworks as tools to be strategically employed to support the broader process of organizing and grassroots resistance at the local and national levels. More specifically, the HRC will support the efforts of the Voces Unidas Coalition to influence global-level human rights standard setting processes and leverage outcomes of UN processes to bolster local advocacy. In relation to the ILO Convention 190, the HRC will further promote the application of the standards prescribed in it and seek to make it an accessible tool for local organizations to use in their own advocacy work in conjunction with grassroots organizing. As our own work shows, we need not wait for ILO Convention 190 to be ratified by a government for it to be put to use.
[i] Community Alliance for Global Justice, Farmworker Sexual Violence Facts, https://cagj.org/food-justice/food-justice-resources/farmworker-sexual-violence-facts/.
[ii] Forthcoming report by Voces Unidas Coalition.
[iii] The University of Miami School of Law Human Rights Clinic works for the promotion of social and economic justice globally and in the U.S. as students, we gain firsthand experience in cutting-edge human rights litigation and advocacy at the local, national, regional, and international levels. This includes engaging with the United Nations, Inter-American Court and Commission on Human Rights, European Court of Human Rights, African Court on Human and Peoples’ Rights, and other tribunals. Focus areas include gender discrimination & violence, racial justice, immigrant rights, and economic and social rights. In the HRC, we critically engage with human rights law and contemporary social problems while sharpening our key lawyering skills. The HRC draws on international human rights laws and norms, along with domestic law and policy.
[iv] The Universal Periodic Review (UPR) is a mechanism of the United Nations Human Rights Council. It is a reporting procedure that reviews the human rights record of every government that is a member of the UN, regardless of whether that State has ratified any U.N. human rights treaty. The UPR is an inter-governmental process. This means that the questions are asked, and recommendations are made by other governments. Because of this inter-governmental process, the political relationships between States can impact the questions and recommendations that States make to one another. At the same time, because recommendations may be coming from States with whom a government has economic, military, or other geopolitical connections, the political nature of the UPR may result in greater pressure to implement recommendations.
[v] The submission to the UPR was co-drafted by the University of Miami School of Law Human Rights Clinic (Denisse Córdova Montes, Carla Carden, Kadian Crawford, and Alexis Bay), Miami Workers Center (Claudia Navarro), WeCount! (Guadalupe De La Cruz), Community Justice Project (Oscar Londoño), and National Domestic Workers Alliance (Monica Ramirez and Marrisa Senteno).