A Washington-based mushroom farm recently agreed to pay $3.4 million to settle discrimination claims against them. The farm had systematically rooted out a majority of their female domestic workforce and replaced them with male H-2A workers. The company’s tactics led to a civil rights lawsuit double-whammy: the Washington Attorney General filed a complaint against them for discrimination based on both sex and immigration status. To top it off, the company, Ostrom, was accused of unfair practices stemming from ignoring H-2A rules and retaliating against employees complaining about their illegal behaviors.
According to the complaint, in mid-2021, new management imprudently decided that the majority female workforce was a liability because child care obligations would keep women from working late hours and weekends. At the time, Ostrom’s workforce was 87% female.
Ostrom found pretextual reasons to fire their domestic, largely female staff. First, they increased harvest minimums from approximately 62 pounds an hour to 68 pounds an hour. They made it nearly impossible for workers to know if they were meeting their production minimums by discontinuing the previous practice of publishing production yields where all workers could track their performance. Then management started disciplining female workers disproportionately for not meeting production standards. Eventually, many female workers were fired for the new harsh (and arbitrarily enforced) harvest minimums. Ostrom eventually got even more blatant and published an advertisement for a job on Facebook that explicitly said only men could apply.
In the end, Ostrom decreased their female domestic workforce by 60%. When the Attorney General investigated, they found that although female workers got fired more often than male workers for not meeting harvest minimums, they were, as a group, actually picking more mushrooms than their male co-workers. All these facts together describe a clear case of sex discrimination.
The second claim of discrimination stemmed from the misuse of the H-2A visa program. Typically, when a farm abuses this system, the US Department of Labor pursues them for technical violations of the program. Here, though, we see how the misuse of the H-2A system can also lead to a state-based immigration status discrimination lawsuit.
Over the course of 2021, Ostrom decreased their entire domestic workforce by 79%. Not only did Ostrom use the unfair practices mentioned above to create a false impression that they couldn’t find suitable domestic workers for their farm, but they also failed to offer domestic workers the same pay rate as the incoming H-2A workers. These are two of the most basic requirements of an H-2A program: first, make a good-faith effort to hire domestically, and second, offer your domestic workers the same rates and benefits you will give your H-2A workers.
Before these problems could come to light, though, Ostrom’s second H-2A application was approved. They hired 65 H-2A workers, only two of whom were women.
Facing employee pushback and the Attorney General’s complaint, Ostrom sold their mushroom business in February of this year. By May, they reached a consent decree with Washington State, agreeing to pay the $3.4 million Settlement Fund but declining to admit to the discrimination charges. The money from the Settlement Fund will go to people harmed by Ostrom’s discrimination. The agreement also requires the new company to undergo training and maintain a legally sound workforce.
When Ostrom sold the farm, workers say they were fired but offered an opportunity to reapply for their jobs. However, they weren’t offered the same jobs or rate of pay. Workers are still engaged with the United Farm Workers Union aiming to form a union and continue to push for better working conditions.
It is rare for news of discrimination civil rights lawsuits against farms to make the news. While Ostrom was blatant in its civil rights violations, it is important for all farms to make sure they understand how discrimination can impact their on-farm hiring, firing, and compensation decisions. See our guide on federal discrimination here to review discrimination basics.
Click here or here to read more about the civil rights lawsuit and here to read more about the unionization effort.