Farmer v. Employment Sec. Com'n of N.C.

Citation4 F.3d 1274
Decision Date02 September 1993
Docket NumberNo. 92-1941,92-1941
PartiesAlmeda FARMER; Jacqueline Wilson; Billy Pizano; Maleka Hortelano; Santiago Arbalaez; Claudia Hernandez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; Carolina Employers' Association, Incorporated; North Carolina Growers Association, Incorporated; Dennis Coe, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Pamela Rose DiStefano, Farmworkers Legal Services of North Carolina, Raleigh, NC, argued (Donnell Van Noppen, III, Patterson, Harkavy, Lawrence, Van Noppen & Okun, on brief), for plaintiffs-appellants.

Ann Margaret Pointer, Fisher & Phillips, Atlanta, GA, argued (Charles Kelso, David Kresser, Fisher & Phillips, Atlanta, GA, Thomas S. Whitaker, James A. Haney, and Thelma M. Hill, Employment Sec. Comm'n of North Carolina, Raleigh, NC, on brief), for defendants-appellees.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, ERVIN, Chief Judge, and HAMILTON, Circuit Judge.

OPINION

ERVIN, Chief Judge:

Santiago Arbalaez, Almeda Farmer, Claudia Hernandez, Maleka Hortelano, Billy Pizano, and Jacqueline Wilson, temporary farm-workers, brought this action against Carolina Employers' Association, Inc. ("CEA"), North Carolina Growers Association, Inc. ("NCGA"), and the Employment Security Commission of North Carolina, seeking declaratory and injunctive relief on behalf of a class composed of all women and families accompanied by minor children who seek or are discouraged from seeking employment with housing. The workers' complaint alleged, inter alia, that the defendants had discriminated against them on the basis of familial status in the provision of housing as a component of employment, in violation of the 1988 amendments to the Fair Housing Act of 1968, 42 U.S.C. Sec. 3604. The defendants answered that the Immigration Reform and Control Act of 1986, 8 U.S.C. Sec. 1188(c)(4), which requires agricultural employers to provide family housing to foreign workers only where such is the prevailing practice in the relevant area or occupation, exclusively defines their responsibilities with respect to the provision of free housing.

We must decide whether the prohibition against familial-status housing discrimination in 42 U.S.C. Sec. 3604 governs 8 U.S.C. Sec. 1188(c)(4) as the controlling expression of agricultural employers' duty to provide family housing to temporary workers. We hold that it does not.

I

This appeal asks us to resolve an apparent conflict between two statutes. We describe the relevant background in three parts. First, we review the federal statutory and regulatory scheme governing the employment of temporary agricultural workers. Second, we recount the injuries allegedly suffered by the plaintiffs. Finally, we examine the procedural history of the instant action before the district court.

A

Each year North Carolina farmers employ thousands of temporary farmworkers for the purpose of cultivating and harvesting labor-intensive crops. 1 The farmers are permitted to hire foreign temporary laborers through the federal government's "H-2A" program. See 8 U.S.C. Sec. 1101(a)(15)(H)(ii)(a). Under this program, agricultural employers who anticipate a shortage of domestic farm labor may bring foreign workers into the United States if they obtain from the Secretary of Labor a certification (1) that there are not enough domestic workers able, willing, and qualified to perform the necessary work; and (2) that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed domestic workers. Id. Sec. 1188(a)(1)(A) & (B). As part of the certification process, prospective H-2A employers must submit a "job order" through the Employment Service System, a nationwide federal job referral service functioning through cooperating state agencies, to attempt to attract domestic workers to their jobs. See 20 C.F.R. Sec. 655.101(c). The Employment Security Commission is the Employment Service System's North Carolina affiliate.

According to federal law, H-2A employers must make certain benefits 2 available to all temporary agricultural laborers. Among these benefits is housing. The statute governing the admission of temporary H-2A foreign workers into the United States provides in pertinent part that

[e]mployers shall furnish housing in accordance with regulations. The employer shall be permitted at the employer's option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accommodations or other substantially similar class of habitation: ... Provided ..., That when it is the prevailing practice in the area and occupation of intended employment to provide family housing, family housing shall be provided to workers with families who request it....

8 U.S.C. Sec. 1188(c)(4).

Pursuant to the opening sentence of this provision, the Secretary of Labor has promulgated extensive implementing regulations governing housing as a required benefit for temporary agricultural laborers. Whereas 8 U.S.C. Sec. 1188(c)(4) requires agricultural employers to provide housing only to foreign workers present in the United States through the H-2A program, the Secretary's regulations extend H-2A employers' housing responsibilities to "United States workers" 3 as well. See 20 C.F.R. Sec. 655.102(a). 4 Thus, agricultural employers must provide housing both to foreign H-2A laborers and to domestic temporary workers

who are not reasonably able to return to their residence within the same day ..., without charge to the worker, which may be, at the employer's option, rental or public accommodation type housing.

Id. Sec. 655.102(b)(1). The regulations further state that employers must provide family housing upon request to foreign and domestic temporary workers with families "[w]hen it is the prevailing practice in the area of intended employment and the occupation to provide family housing." Id. Sec. 655.102(b)(1)(vi).

B

The facts of the instant case are not in dispute. The plaintiffs are all "United States workers" 5 within the meaning of 20 C.F.R. Sec. 655.100(b) who sought agricultural employment with provision for housing in family units. Housing information provided by participating H-2A farmers to the United States Department of Labor indicates that the vast majority of housing North Carolina farmers provide to temporary farmworkers consists of small frame houses, mobile homes, and converted tobacco barns. Some temporary labor camps supply housing built of cinder blocks and configured like a motel, with two rows of rooms entered from the outside and common, non-sleeping areas. In these structures, couples and family members typically are housed in separate rooms, and single women are housed in separate rooms from single men. As the experiences of the individual plaintiffs show, North Carolina farmers usually offer free housing only to workers. The farmers generally do not offer free housing to non-working family members, whether these persons are spouses, children, or anyone else connected with a worker by family tie. When the plaintiffs applied for jobs as agricultural laborers with the defendants, they were told that free housing would be provided only for workers. The plaintiffs do not dispute that family housing is not the "prevailing practice" for temporary agricultural jobs in North Carolina within the meaning of 8 U.S.C. Sec. 1188(c)(4).

Billy Pizano, for example, alleged that he contacted four North Carolina farmers employing H-2A workers to obtain an agricultural job with family housing for his common-law wife and their eighteen month-old child. With each contact he was turned away. When Pizano went to the local office of the North Carolina Employment Security Commission to complain, a representative informed him that the housing provided pursuant to the H-2A program was not for women and families, and that he and his family would not be given family housing.

Similarly, Jacqueline Wilson contended that she and her husband went to a local North Carolina Employment Security Commission office to inquire about temporary agricultural jobs that would provide free housing. The Commission's representative examined the job orders submitted by farmers employing H-2A laborers and informed Wilson that all of the available jobs had "single-sex" or "barracks-type" accommodations with no sleeping or bath facilities for women. The representative offered Wilson's husband a job, but could not refer her to any of the available H-2A jobs because she would not agree to share sleeping and bath facilities with male workers other than her husband.

Finally, Santiago Arbalaez, Almeda Farmer, Claudia Hernandez, and Maleka Hortelano inquired about or applied for agricultural employment and housing with one or more of the defendants in 1990 or 1991. They contended that they were refused job referrals by the Employment Security Commission, and were discouraged by the Commission from seeking work with agricultural employers due to their gender and familial status. In affidavits submitted together with the complaint herein, Farmer, Hortelano, Arbalaez, and Hernandez explained that the defendants had advertised, offered, and referred applicants to jobs providing housing described by the defendants as "single-sex, shared unit" housing. Farmer, Hortelano, Arbalaez, and Hernandez alleged that the defendants failed to refer, refused to hire, or otherwise discouraged them from applying for these jobs, thereby discriminating against them in the provision of employment and housing on the basis of gender and familial status.

C

On October 29, 1991, the plaintiffs filed the instant action, requesting declaratory and injunctive relief on behalf of a class composed of...

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