Mexican NGO Asks Government to Bring Labor Case Under USMCA
Advocates for seasonal workers in the U.S., on farms and in other settings, are asking the Mexican government to use USMCA's labor chapter to bring a case on gender-based discrimination in those programs. The Center for Migrant Rights announced the complaint March 23, which says that farms and other businesses prefer to recruit men, which is proven by the fact that 97% of H2A visas go to men, and 87% of H2B visas go to men. Even when women are hired, they are assigned to lower-paid positions, such as packing, rather than field work, the complaint said.
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“For years, they watched as the toothless NAFTA labor side accord failed to hold the U.S. government accountable,” the press release announcing the complaint said.
This group tried to bring the same complaint under NAFTA, a trade practitioner said. But even if the Mexican government had wanted to press the issue, the U.S. could block the formation of panels under NAFTA, so dispute settlement was toothless. That was remedied under USMCA, but it's far from clear that this case will even go to consultations, the first official step in a dispute between countries in the pact.
Simon Lester, associate director of the libertarian Cato Institute's trade policy program, said, “the politics of it all are not really that clear to me.” He is wondering if the advocates will be able to convince the Mexican government to pursue a case. “It could be seen as a confrontational,” Lester said, but then again, maybe Mexico would like to have a case to turn to when the U.S. begins bringing labor cases under the rapid response mechanism.
Both Lester and a trade practitioner who asked to remain anonymous said they were surprised that the first complaint publicized under USMCA's labor chapter was on the Mexican side. It's possible that a U.S. union or nonprofit has already brought a complaint to the U.S. trade representative, but did not publicize the fact. There's no requirement that such complaints be made public.
Lester said that the Biden administration could bypass settlement litigation by choosing to make changes to the H2A and H2B programs because they see the merits in the argument that women are being discriminated against, and they want to remedy the problem. Lester said, “They’re looking to root out injustices like this,” and so their attitude might be: “Yes, thanks for alerting us to this problem, here're the strategies we’re going to take… .”
He said he'll be interested to see their response.
Lester said that even though there has been a lot of talk about how the U.S. intends to use its new labor enforcement tools under USMCA, he's not sure a dispute in that area will be the first to go into formal consultations.
He said he's been hearing complaints about discrimination against foreign energy companies, digital trade barriers, and then this week, more than two dozen agriculture trade groups complained that the trade relationship with Mexico is deteriorating (see 2103220009).
“I think Ag is always going to be up high on the list because it's got a constituency here that has influence,” Lester said. But he noted that the Democratic Party may be conflicted, as some exporters' complaints are over regulations that some Democrats may be sympathetic to, such as labeling foods that are unhealthy, or blocking the import of genetically modified corn for human consumption.
He said between labor, energy, digital trade and agriculture, they're “all in a tight race to which comes first. I don’t know what pushes something from: 'Oh, this is something we’re bringing privately with the Mexican government,' to 'Oh, this is something we’re bringing consultations.'”