By: CAAA Latino Caucus
Not many would think to put California in the category of Human Rights Violators.
That’s because human rights violations are typically thought of as unsophisticated and blatant acts of persecution. However, similar to the primitive origins of today’s complex economy, so too have our human rights violations evolved.
Pope Francis said, “Human rights are not only violated by terrorism, repression, or assassination, but also by unfair economic structures that create huge inequalities.” He couldn’t be more right. In the last century, we’ve moved from glaring and unashamed prejudice to subversive and systematic discrimination.
That’s not to say that we haven’t come a long way in the fight for human rights, because we have. From federal laws like the Fair Labor Standards Act of 1938 and the Civil Rights Act of 1964 to state laws like California’s Fair Employment and Housing Act and the Unruh Civil Rights Act, there’s evidence of our progress. But the devil is in the details and vestiges of persecution have slipped through loopholes to embed themselves in our societal institutions. And there’s no group at greater risk than the Golden State’s fastest growing demographic: Latinos.
It’s estimated that 79 percent of the nation’s undocumented immigrants are Latino, with 2.4 million (22%) in California alone. With regards to California’s workforce, it’s estimated that about one in ten workers is undocumented. But here’s where the risk becomes apparent: Latinos accounted for over half (59.4%) of workplace injuries and over a third (37.8%) of workplace deaths in 2014.
Many undocumented workers flee their home countries to escape various human rights violations. Ironically, they arrive in the U.S. only to be forced into using false documents as a result of existing unfair economic structures, which has the effect of imposing a second-class judicial system.
As a state with a rich progressive history that was formerly a Mexican territory, we’ve prided ourselves as Californians on a culture of taking equality and fairness to new heights. In fact, when employers used the federal Immigration Reform and Control Act (IRCA) to undercut the federal labor protections and remedies of the National Labor Relations Act in 2002, California acted to strengthen state labor protections and remedies in an effort to keep the human rights of the undocumented intact.
But the devilish details have snaked their way into yet another loophole.
In 2014, employers again attempted to use IRCA to subvert existing law—this time to undercut the same state labor protections and remedies created in 2002. While the California Supreme Court ruled with the decision in Vicente Salas v. Sierra Chemical Co. (2014) 59 Cal. 4th 407 that an undocumented worker’s discrimination claim could proceed, they would not go so far as to permit a back pay award for any time after the worker’s undocumented status was discovered. Thus, while undocumented California workers are permitted to bring discrimination claims against their employers pursuant to state law, employers are not required to pay damages on those claims under federal immigration law after an employee’s undocumented status is discovered. This precedent was even taken one step further in Maria Salas v. IDS USA West, Inc., Mitsui Sumitomo Insurance Company of America (2014) Cal. Wrk. Comp. P.D. LEXIS 364 when the court used IRCA to rescind an award of increased permanent disability indemnity benefits based on immigration status.
Allowing such precedents to stand presents a dilemma that will erode California’s culture of equality and fairness and violate human rights by allowing malicious employers to subject the undocumented to discrimination, harassment, underpayment, and unsafe working conditions without any consequence.
Human rights are not privileges for the few, but indispensable liberties for all. And California shouldn’t tarnish its Golden State reputation by allowing itself to be put in the category of Human Rights Violators.