Labor & Employment Law Daily Disparate impact administrative complaint against Tyson, JBS challenges lack of COVID-19 worker protections
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Monday, July 13, 2020

Disparate impact administrative complaint against Tyson, JBS challenges lack of COVID-19 worker protections

By Pamela Wolf, J.D.

The companies’ current operating procedures have a discriminatory impact on the predominantly Black, Latino, and Asian workforce at their plants, according to the complaint.

On July 8, a nationwide coalition of organizations that advocate for meat processing workers and allied groups filed an administrative civil rights complaint against mega-corporations Tyson and JBS. Filed with the U.S. Department of Agriculture, the complaint alleges that, in addition to being disastrous for the wellbeing of workers and for public health, the two major meat processing corporations have engaged in racial discrimination prohibited by the Civil Rights Act of 1964 through their workplace policies during the COVID-19 pandemic.

Purportedly, Tyson and JBS have adopted policies that reject critical CDC guidance—namely, social distancing on meat processing lines—to stop the spread of COVID-19 at their processing facilities. The results of their current operating procedures have a discriminatory impact on the predominantly Black, Latino, and Asian workforce at the companies’ plants, according to the complaint.

Title VI of Civil Rights Act. The complainants contend that because of the federal money that flows to the meat processors in the form of the Farm Bill nutrition program and Trade Mitigation Program contracts, this disparate impact violates Title VI of Civil Rights Act of 1964, which protects individuals from racial discrimination by recipients of federal financial assistance. The meat processing worker advocates are asking the USDA’s Office of Civil Rights to suspend, terminate, and refuse to provide financial assistance to these two companies as a result of this racial discrimination, and to refer the complaint to the Justice Department for action.

According to the complainants, from January 1, 2020 through July 7, 2020, Tyson and JBS have received $109,389,928 and $45,774,572 worth of federal contracts, respectively, through Farm Bill nutrition programs and the Trade Mitigation Program.

Disparate impact. “Meat processing workers, the majority of whom are Black, Latino, and Asian, bear an adverse disparate impact from exposure to COVID-19 caused by Respondents’ Corporate Processing Policies that favor a processing capacity objective—the bottom line—over common-sense measures to protect workers’ health and safety,” the complaint alleges. “In addition, when compared to Respondents’ management, workers are overwhelmingly exposed to the virus while white managers are not exposed to the same risks as the Black, Latino, and Asian workers on the ‘front lines.’ The crowded and confined working conditions paired with frigid temperatures and long shifts allows COVID-19 to spread among workers in meat processing plants.”

The complainants say that tens of thousands of workers at the respondents’ facilities have contracted COVID-19, and more than 100 have died from the coronavirus.

Discriminatory policies. Tyson Foods, Inc., Tyson Fresh Meats, Inc., Keystone Foods, LLC, JBS USA, Inc., and Pilgrim’s Pride Corp. adopted their respective policies after the onset of the COVID-19 pandemic in the United States on or about March 11, 2020, the complainants assert.

The complaint alleges that the meat processors’ policies violate Title VI because the policies cause a disparate impact on Black, Latino, and Asian workers and represent a pattern or practice of racial discrimination. The policies purportedly reject “common-sense protective measures,” including a six-foot minimum of social distancing among workers that is critical to mitigating the risk of exposure to COVID-19. Existing social inequities compound this discrimination for Black and Latino workers, including higher death rates and higher hospitalization rates than for white people.

CDC data. The complainants point to recent CDC data to corroborate their allegations. They cite data published by the CDC on July 7, 2020, collected through May 31, 2020, which analyzed the COVID-19 harm suffered by workers in meat processing facilities, and discussed the measures implemented and not implemented at such facilities. “The CDC Disparity Report found that, based on 21 states reporting race and ethnicity data, ‘Hispanic and Asian workers might be disproportionately affected by COVID-19 in this workplace setting,’” the complaint states. “The Report does not identify any instances of facilities reporting adoption of the minimum 6-foot social distancing measure to protect workers on processing lines.”

They knew what they were not doing. The complainants contend that the meat processors have known for months that several common-sense measures alleviate the impact to workers, alleging that on or after April 26, 2020, and in response to CDC and OSHA guidance, the respondents “further refined and amended the Policies by declining to adopt CDC-recommended measures that would secure a minimum of 6-feet of separation between workers on the processing line.” The policies purportedly continue to place Black, Latino, and Asian front line workers at risk of exposure to COVID-19.

No substantial legitimate justification. Because the complaint is an administrative one, the complainants do not bear the burden of proof, including whether the meat processors lack a substantial legitimate justification for their policies, or that less discriminatory alternatives exist, according to the complaint. However, the complaint nevertheless demonstrates that the policies lack a substantial legitimate justification. “The President has designated meat and poultry as critical materials for domestic use,” the complaint states. “However, the Policies have the objective of securing pre-pandemic processing capacity, including capacity to meet export demand.”

Allegedly, the meat processors could process meat and poultry to meet domestic demand and avoid the disparate impact described in the complaint. “[A]dding processing shifts and increasing social distancing during processing work could meet the pre-pandemic processing capacity objective, thus achieving a less discriminatory alternative to rejecting measures recommended by the CDC,” according to the complaint.

More about the numbers. In a press release, Public Justice said that as of July 6, the Food & Environment Reporting Network reports that there are at least 292 meatpacking processing plants with confirmed cases, with at least 40,081 meatpacking workers testing positive for, and at least 138 meatpacking workers dying from, COVID-19. As of July 7, the Midwest Center for Investigative Reporting documents that Tyson and JBS have the first and second most COVID-19 cases tied to their meat processing facilities, respectively, with a combined total of at least 12,495 positive cases.

As of June 6, 2020, USDA Secretary Sonny Perdue reported that meat processing plants “are operating more than 95% of their average capacity compared to this time last year,” according to Public Justice. The New York Times reports that exports of pork and beef have surged during the first four months of 2020 compared to the same period in 2019. Moreover, USDA cold storage data through May 31, 2020, shows that the amount of beef and chicken in cold storage increased compared to the same period last year, while the pork inventory represented 74 percent of the amount at the end of May 2019.

“Now is the time for our federal government to recognize that this national COVID-19 crisis is being fueled largely by policies at plants operated by these two corporations, and that the suffering and death from coronavirus borne predominantly by Black, Latino, and Asian workers results from a choice made by Tyson and JBS in pursuit of additional profit, not to ameliorate any domestic food supply issue,” the advocacy groups said in a joint statement.

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