BENTON - Civil rights law that President Johnson signed with Martin Luther King looking over his shoulder now protects a person who has had two genders, two nationalities, three names and two phony social security numbers.
On that person’s behalf the Equal Employment Opportunity Commission seeks to punish and reform farmers Clare Schilling and Drew Schilling of New Athens.
They operate as Sis-Bro, sister and brother, on the family farm.
They wean pigs and provide a diet that prepares the pigs for farm life.
The commission sued Sis-Bro at U.S. district court last March, alleging violation of a former employee’s rights in transition from male to female.
The complaint alleged offensive speech and actions primarily on the part of an employee the commission identified by first name.
At last report the EEOC couldn’t find him.
No case could better capture the commission’s conversion from Dr. King’s dream to movements that have multiplied since.
In the last 16 years the commission filed 16 suits in the Southern District of Illinois and not one related to race or color.
The commission’s website shows race or color as one of 13 types of discrimination.
The list assigns separate categories for sex, sexual harassment and sexual orientation.
The website links to five recent news releases, four on disability and one on religion.
It links to six recent statements of commission chair Charlotte Burrows relating to Native Americans, transgender, veterans, disability, sex and pregnancy.
Because no one can sue an employer for discrimination without first seeking relief from the commission, the commission receives a constant stream of complaints.
In most cases it investigates but takes no action except to issue notice of the right to sue.
At that point months have passed with no result except a document.
The cases the commissioners choose reflect their priorities.
Their complaint against Sis-Bro identified the former employee as "Charging Party."
Commission counsel Jonathan Delozano claimed Sis-Bro subjected her to sexual harassment, created and maintained a hostile work environment, and constructively discharged her.
“Charging Party was assigned male at birth," the complaint states.
“Charging Party began working for Sis-Bro in 2009.
“At the time that Charging Party began working for Sis-Bro, she presented as a male and used the name Rafael.
“Beginning in 2018, Charging Party began her transition.”
The complaint alleges that Clare Schilling addressed Charging Party as Rafael or Rafa instead of her chosen name and told her she was a guy.
A worker allegedly exposed his genitals to her, touched her breasts once, attempted to touch them on other occasions, and made explicit sexual comments.
EEOC counsel Delozano requested injunctions against maintaining a sexually hostile environment and retaliating against employees who oppose unlawful practices.
He requested an order to institute and carry out policies, practices, and programs that provide equal employment opportunities for transgender persons.
He requested compensation for past and future pecuniary losses and for emotional pain, suffering, loss of enjoyment of life, humiliation, loss of self esteem and loss of rights.
He requested punitive damages for malicious and reckless conduct.
The parties would later identify the charging party as Natasha Figueroa, formerly Rafael Santos Figueroa.
Sis-Bro counsel Scott Cruz of Chicago moved to dismiss the complaint in May and Senior District Judge Phil Gilbert denied it in August.
Gilbert found the commission alleged conduct from the beginning of Natasha’s transition in 2018 to her termination in 2021, “and more specifics are better fleshed out in discovery.”
He found whether conduct was severe or pervasive enough to constitute a hostile environment could be explored in discovery and decided on summary judgment or at trial.
Five days later, Figueroa moved to intervene.
Figueora’s counsel James Dore of Chicago filed a copy of a complaint that would seek relief under Illinois laws.
Dore claimed the EEOC only addressed enforcement rights of administrative agencies.
He stated Figueroa resided in Coulterville.
“Natasha is of Salvadorean/Latina descent and a person of color," Dore wrote.
He claimed Clare Schilling said, “You spent all your money to put those things on your body and you look horrible.”
He claimed supervisors mocked Figueroa’s Latina background but didn’t identify the supervisors.
He repeated the EEOC's account of the worker who touched Figueroa.
Like the EEOC, he provided only a first name but he spelled it differently.
Gilbert granted intervention in September and Dore filed the complaint.
In response defense counsel Cruz entered a denial of any conduct Figueroa alleged.
“Sis-Bro lacks sufficient information and knowledge in order to form a belief as to the truth of whether plaintiff was assigned male at birth," Cruz wrote.
He claimed Figueroa voluntarily resigned for reasons unrelated to allegations in the complaint.
In November Cruz informed the EEOC that Sis-Bro would serve a subpoena on Union Club of Purdue University as Figuerora’s employer.
The subpoena sought applications, resumes, references, personnel files, documents establishing identity, pay stubs and other documents identifying total compensation, time cards, documents containing Figueroa’s signature, and job descriptions.
It sought correspondence on Figueroa’s separation from the club unless currently employed.
Commission counsel Delozano moved to quash the subpoena and in the course of the motion stated that Sis-Bro requested Figueroa’s immigration status in October.
“The burden that Sis-Bro’s subpoena places on Figueroa’s relationship with her current employer substantially outweighs the limited relevance of the discovery that Sis-Bro seeks in its subpoena," he wrote.
He requested a protective order against discovery into Figueroa’s personnel record and immigration status.
He claimed Figueroa was entitled to freedom from harassment on the basis of transgender status regardless of her documentation status.
He claimed discovery on documentation status imposes a chilling effect on an employee’s willingness to come forward with complaints.
He claimed the EEOC and Figueroa requested back pay and the court should find the relevance of the claim is outweighed by the effect the information has on claimants generally.
He claimed the EEOC had not seen information relating to Figueora’s immigration status.
Cruz responded that the EEOC produced virtually nothing in discovery and denied having knowledge of Figueroa’s damages.
He claimed the scant information of the EEOC conflicted with Figueroa’s production.
He claimed Figueroa didn’t object to the subpoena or join the motion to quash.
He claimed Figueroa disclosed a prior employer to the EEOC in 2022 and the employer has reported to Sis-Bro that it never employed Figueroa.
He claimed the employer reported that it never employed anyone with a social security number ending in 8654, the last digits of the number Figueroa provided to Sis-Bro.
He claimed Figueroa’s response to a discovery request provided six pay stubs from JM Companies which the EEOC failed to identify as an employer.
He claimed the pay stubs confirmed Figueroa has used or uses an alias, specifically Tania Alejandra Sauceda.
He claimed the pay stubs showed a social security number ending in 3882.
“Plaintiff has now disclosed under oath that she does not have a social security number which Sis-Bro respectfully submits confirms that she was not authorized to work in the U.S. during any period of time in which she seeks back and front pay," he wrote.
Cruz attached to his brief answers that Figueroa’s counsel Dore produced in response to Sis-Bro’s interrogatories.
For social security number Dore wrote, “None currently.”
Among potential witnesses he listed the man with only a first name and wrote, “This person’s contact information is unknown.”
He stated the last address was Centralia.
Gilbert held a hearing on the Union Club subpoena on Dec. 12.
He continued it to Jan. 21 and wrote, “All parties are directed to appear in person including intervenor plaintiff Natasha Figueroa.”