Anticipatory Retaliation, Threats, and the Silencing of the Brown Collar Workforce

• Author: Charlotte S. Alexander
• DOI: http://doi.org/10.1111/ablj.12021
• Date: 01 December 2013
• Published date: 01 December 2013

Anticipatory Retaliation, Threats,

and the Silencing of the Brown

Collar Workforce

Charlotte S. Alexander*

INTRODUCTION

Consider the following scenarios. Five hundred Mexican farmworkers

arrive in North Carolina with visas to work legally for a harvest season.

Each has a “know-your-rights” booklet distributed by a legal services orga-

nization that describes U.S. employment laws and offers assistance if the

workers have a problem. The workers are greeted by a representative of

their employer, who instructs them to throw their booklets away and

distributes another booklet, which warns that “history . . . shows that the

workers who have talked with [legal services] have harmed themselves.”1

Workers report feeling that if they “keep [the] booklets or if they are ever

seen with one of [the] booklets, they will be fired or have serious problems”

with their employer.2

In Alabama, “Diane,” a U.S. citizen poultry worker, develops severe

pain in her hands due to the repetitive motions required by her

*Assistant Professor of Legal Studies, Department of Risk Management and Insurance, J.

Mack Robinson College of Business, Georgia State University; Secondary Appointment,

Georgia State University College of Law. I received valuable feedback on early versions

of this paper at the Stetson and Mercer Law School Faculty Workshops. I also thank Michael

Duff, Jeff Hirsch, Jamie Prenkert, and two anonymous reviewers and the editorial board

of the American Business Law Journal, particularly Robert Sprague, for their thoughtful

suggestions.

1HUMAN RIGHTS WATCH,UNFAIR ADVANTAGE:WORKERS’FREEDOM OF ASSOCIATION IN THE UNITED

STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 218–23, 219 (2000), available at http://

www.hrw.org/reports/pdfs/u/us/uslbr008.pdf.

2Id. at 220.

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job.3When she asks to see the company nurse, her supervisor tells her that

she “shouldn’t say [the pain is] work-related. If I say my pain comes from

something I did at work, then I will be laid off without pay and three days

later get fired. So, when I go to the nurse I tell her that I hurt my hands

at home.”4

In Arkansas, an undocumented poultry worker tells a human rights

investigator, “They have us under threat [bajo amenaza] all the time. They

know most of us are undocumented—probably two-thirds....My super-

visor said they say they’ll call the [immigration authorities] if we make

trouble.”5

In each scenario, an unscrupulous employer attempts to silence its

workforce, to nip potential worker claims-making in the proverbial bud.

Courts and commentators label these silencing tactics “anticipatory retali-

ation,” or actions taken against workers in anticipation that they might

enforce their legal rights in the future.6Anticipatory retaliation can take

many forms: an employer might preemptively fire a worker whom it

believes will file a lawsuit or complain to a government agency, or might,

as in the scenarios above, threaten workers with the consequences of

contacting a lawyer, reporting a workplace injury, or “making trouble” on

the job.7All are methods of preemptive labor control—ways to keep

3S. POVERTY L. CTR.&ALA.APPLESEED,UNSAFE AT THESE SPEEDS:ALABAMA’SPOULTRY INDUSTRY AND

ITS DISPOSABLE WORKERS 15 (2013) (internal quotation marks omitted), available at http://

www.splcenter.org/sites/default/files/downloads/publication/Unsafe_at_These_Speeds_web

.pdf.

4Id.

5HUMAN RIGHTS WATCH,BLOOD,SWEAT,AND FEAR:WORKERS’RIGHTS IN U.S. MEAT AND POULTRY

PLANTS 101 (2004), available at http://www.hrw.org/sites/default/files/reports/usa0105.pdf.

6The term “anticipatory retaliation,” which this article adopts, has been used by scholars and

courts to describe employers’ preemptive actions against workers whom they believe will file

a workplace claim or complaint. See, e.g., Alex B. Long, Employment Retaliation and the Accident

of Text,90O

R.L.REV. 525, 561–63 (2011) (discussing anticipatory retaliation in the context

of Title VII discrimination claims); EEOC v. Bojangles Rests., Inc., 284 F. Supp. 2d 320, 327–28

(M.D.N.C. 2003) (discussing same).

7See, e.g., Long, supra note 6, at 561 (“In the Title VII context, employers have sometimes

taken action against an employee before the employee has filed a charge because the

employer believes the employee may, or is about to, file a charge of discrimination.”).

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workers quiet and deter them from ever making claims, filing suit, or

otherwise exercising “voice” in the workplace.8

Such tactics are effective. A 2008 survey of more than 4300 low-wage

workers in the three largest U.S. cities demonstrated that fear of retaliation

was the most common reason that workers did not complain, even after

they had identified a workplace problem.9A 2013 report on Alabama’s

poultry processing industry also suggests that fear of retaliation silences

worker complaints: large majorities of the three hundred workers inter-

viewed reported being uncomfortable asking their employers about prob-

lems with workplace safety,discrimination, and wages; these figures rose to

almost one hundred percent among workers who had previously wit-

nessed employer retaliation.10

8ALBERT O. HIRSCHMAN,EXIT,VOICE,AND LOYALTY:RESPONSES TO DECLINE IN FIRMS,ORGANIZA-

TIONS,AND STATES30 (1970) (defining a worker’s choices when faced with a problem within her

organization as exit, voice, and loyalty: “Voiceis here defined as any attempt at all to change,

rather than to escape from, an objectionable state of affairs. . . .”); id. at 21–25 (discussing the

option to “exit,” or take one’s labor or business elsewhere); id. at 76–105 (discussing a “theory

of loyalty”).

9ANNETTE BERNHARDT ET AL., BROKEN LAWS ,UNPROTECTED WORKERS:VIOLATIONS OF EMPLOYMENT

AND LABOR LAWS IN AMERICA’SCITIES 3 (2009), available at http://www.nelp.org/page/-/

brokenlaws/BrokenLawsReport2009.pdf (finding that, of the workers who identified a work-

place problem but chose not to complain, “[h]alf were afraid of losing their job, 10 percent

were afraid they would have their hours or wages cut, and 36 percent thought it would not

make a difference”).

10S. POVERTY L. CTR.&ALA.APPLESEED,supra note 3, at 22 (reporting that 68%, 57%, 71%, and

60% of all workers interviewed were uncomfortable asking their employer about problems

with workplace safety, safety equipment, discrimination, and wages, respectively; reporting

further that for the same problems 86%, 82%, 93%, and 86% of workers, respectively, “who

had previously witnessed an adverse response to a reported violation or request for improve-

ment” reported discomfort asking employers about those topics). Anecdotal accounts tell a

similar story of workers silenced by fear. See S. POVERTY L. CTR., INJUSTICE ON OUR PLATES:

IMMIGRANT WOMEN IN THE U.S. FOOD INDUSTRY 35 (2010), available at http://cdna.splcenter.org/

sites/default/files/downloads/publication/Injustice_on_Our_Plates.pdf (quoting a poultry

worker known as “Luz” relating that her supervisor “would curse and berate workers,”

threatening that “since we didn’t have papers, we had to put up with everything he said to us.

And, yes, I believed that since we were illegal, we had to take everything he yelled at us and

told us”) (internal quotation marks omitted); HUMAN RIGHTS WATCH,supra note 5, at 111

(quoting a Nebraska meatpacking worker, saying that his plant supervisor “knows who is

undocumented and who isn’t, and he holds that over us. He says, ‘I know how you got

here’....That just makes people afraid of crossing him.”); HUMAN RIGHTS WATCH,supra note

1, at 181 (reporting in a case study of the garment industry that “most sweatshop workers are

afraid to complain about conditions or treatment....[T]hey accept exploitation in silence,

fearful that filing complaints with labor law authorities . . . will cost them their jobs.”); Frances

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