Women challenge sexism in U.S. and Canadian guest worker programs through bold and innovative NAFTA labor petitions

In July  2016, UFCW Canada and Centro de los Derechos del Migrante (CDM)  filed petitions under NAFTA’s labor side agreement alleging sex discrimination in recruitment for the Canadian  Seasonal Orange tiger liliesAgricultural Worker Program (SAWP) and the U.S. H-2A and H-2B agricultural and low wage visa programs. In early 2018, CDM filed a supplement to its petition, arguing that sex discrimination is pervasive in recruitment for professional visa programs as well as low wage visa programs.

Because of sex discrimination in recruitment, less than 4 percent of the workers who participate in U.S. and Canadian agricultural and low wage guest worker programs are women. While working conditions in guest worker programs are rife with human and labor rights issues, they still represent economic opportunity for women who would like to participate.  Moreover, women who are excluded are forced into migration through informal channels, leading to the risk of violence, human trafficking, and even worse working conditions.

These two bold and innovative petitions highlight in a tangible and human way the bifurcation of global migrant labor markets.  Global migrant labor markets bifurcated based on gender exclude women from economic opportunity based on gender stereotyping. Discrimination in recruitment and treatment of women in the global migrant labor market is the norm, not the exception.

My forthcoming article in the Employee Rights and Employment Policy Journal discusses and compares the facts and claims raised in each petition under applicable legal frameworks in Canada, the U.S., Mexico, and the North American Agreement on Labor Cooperation (NAALC). The article explores possible outcomes of the petitions given the nuances and political environments in the Canadian and U.S. cases and the current state of relations between the Government of Mexico and its North American neighbors. Finally, the article places sexism and gender stereotyping in North American guest worker programs in an international context, discussing other examples of sexism in the global labor market and existing norms in ILO Conventions and CEDAW Recommendation No. 26 on Women Migrant Workers.

Row of flowers and sidewalkIn the Canadian case, the article argues that the Governments of Canada and Mexico should renegotiate international agreements that form the SAWP to implement the recommendations of the Mexican Council on the Prevention of Discrimination. In the U.S. case, the article argues that the Government of Mexico should pursue the establishment of an Evaluative Committee of Experts (ECE) under Article 23 of the NAALC if the U.S. does not enact and enforce meaningful reforms to eliminate sex discrimination in the H-2A and H-2B visa programs.

This article is the direct result of the supportive research community that has grown up around the IntLawGrrls blog. I first presented it as part of a wonderful panel at the IntLawGrrls 10th Birthday Conference in Athens, Georgia in March 2017.  Moderated by Jaya Ramji-Nogales and featuring Karen Bravo, Deepa Das Acevedo, and Urvashi Jain, this panel focused on exclusion – whether the exclusion of transgender children from schools in India, of persons from their fundamental humanity through slavery and human trafficking, of women from the Hindu temple at Sabarimala, or of women from economic opportunities represented by international guest worker programs.  I am grateful to my fellow panelists, to IntLawGrrls, and to the Dean Rusk International Law Center at the University of Georgia Law School for a transformative experience.

Olga PedrozaMy article is dedicated in part to Olga Pedroza of Las Cruces, New Mexico, who unfortunately passed away earlier this year. Olga was my boss when I worked as a farmworker intern at Southern New Mexico Legal Services during law school. Olga introduced me to a world I never imagined, where migrant farm workers sleep on sidewalks in El Paso to catch 4:00 a.m. school buses to ride hours away to pick chiles, tomatoes, and onions in Southern New Mexico.  It was because of Olga that I sat in a renovated chicken coop in Artesia, New Mexico, talking to a farmworker who told me that he and other farmworkers did not deserve any better. After her retirement from Southern New Mexico Legal Services, Olga served as a Law Cruces City Councilor for 8 years. Olga was a tireless and lifelong advocate for the excluded. She will be missed.

Regularizing & Decriminalizing the Movement of People, Part II

We are not going to stop sending people, and you guys are not going to be able to stop them from getting in.

These are the words of Lt. Col. Reyes Garcia, a Honduran military policy leading an operation to break up an extortion ring used for trafficking women and contraband cigarettes.

When I last addressed this issue, I was prompted to do so in response to the news report of the hundreds of people from Ghana, Eritrea, and Somalia who drowned off the coast of Italy attempting to enter the European Union in search of work and a better life. I wrote then that these tragedies happen because, as the barriers to the movement of goods and services have fallen, those facing people who merely seek the opportunity for a decent life continue to go up.

This time, the focus is on the United States, where the latest humanitarian crisis involves tens of thousands of Central Americans, many of them children, who have overwhelmed US border facilities. They flee violence and despair in search of a “good job” – sewing underwear in a sweatshop for a weekly wage of $47.00.

Here is the irony – similar jobs used to proliferate in Honduras, El Salvador and the other Central American countries at the heart of this story. The ease with which capital can move in search of even higher returns has relocated many of the factories to countries in Asia, such as Bangladesh, where they find cheaper labor and fewer regulations. The people left behind are people like Waldina Lizeth Amaya, a 37-year old mother of four from Honduras who worked for several years in a factor making bras and panties. Now, after trying unsuccessfully to find work in Honduras, she is one of the tens of thousands of persons determined to make it to the U.S. in search of the jobs there.
The International Organization for Migration (IOM) writes that:

When properly managed, labour migration has far-reaching potential for the migrants, their communities, the countries of origin and destination, and for employers.

In 2011, there were 105 million people working in a country in which they were not born, generating income of US$440 billion, of which US$350 billion was sent back to their home countries. International aid agencies now treat these remittances as an important source of “foreign earnings” for the receiving countries.

Courtesy of Wikipedia

Courtesy of Wikipedia

Yet, the rules to manage and legitimize the economic migration of persons remain sketchy, at best. The World Trade Organization (WTO) rules recognize the movement of people as service providers as a delivery mode for trade in services. However, existing rules focus on movement of professional and highly-skilled workers. The low-skilled or unlicensed service provider continues to be marginalized, despite the continued high and ongoing demand for their services, particularly in developed economies.

In the face of this Central American influx, the United States does not have to wait for new WTO rules – it can unilaterally address the issue through a rational approach to immigration, which also takes into account the reality of labor and economic migration – persons who want to temporarily migrate just to work. The tragedy is that neither the WTO nor the US seem inclined to do so.