Part of the Family?. Sheila Bapat

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СКАЧАТЬ to an idealized standard of femininity, one in which a White woman was able to fulfill the gendered division of work without actually getting her hands dirty. In the Southeast United States, it was the enslaved African woman’s labor that enabled the aristocratic White woman’s lifestyle. Thus, true womanhood was defined as “virtuous, pure, and white,” and proper Black womanhood was defined as service to the creation of that White woman ideal. Domestic service was part of the racial caste system, such that no “self-respecting, native- born Southern white woman” would take such a job. Many White women accepted and perpetuated this racist division of labor in order to elevate their status in heteropatriarchy. The creation of the racist stereotype of Mammy is the quintessential embodiment of the ideal of the Black woman in service to the White woman. Mammy gladly raised White children as her own and in sacrifice of her biological Black children.¹²

      In its report, “Home Economics,” the National Domestic Workers Alliance pointed out the racial aspect of domestic labor, namely that female slaves were among the earliest domestic laborers in the United States. Unfortunately, that most domestic work is performed by women who lack full agency over their own lives and bodies is a reality that has not disappeared.

      Modern-Day Slavery: Trafficking and Domestic Laborers

      In 2006, seventeen-year-old Shanti Gurung moved from her home in India to New York City with her new employer, Neena Malhotra. Shanti left behind her family, friends, and everything she knew for what promised to be a secure job and an exciting opportunity: to live with and work for a privileged Indian family in the United States. Malhotra was an Indian diplomat who lived with her husband in a Manhattan apartment. The couple offered Shanti a verbal employment contract promising her room and board and at least $108 per month in wages, in exchange for “light cooking, light cleaning, and staffing the occasional house party.”¹³

      Much like the experience of Fatima Cortessi, Shanti Gurung’s reality turned out to be far different than she originally envisioned. For the three years she worked in the Malhotra household, Shanti was regularly denied food, forced to sleep on the floor even though the Malhotras’ large apartment included several unoccupied bedrooms, and made to work more than sixteen hours per day. During those three years, Shanti’s weight dropped from 147 pounds to a fragile 84 pounds. The Malhotras also hid Shanti’s passport and visa, prohibited her from calling her family in India, and told her repeatedly that if she ran away, Homeland Security would rape her, torture her, and “ship her back to India like cargo.”¹⁴

      Eventually, using her small savings, Shanti fled the Malhotras’ apartment in 2010, seeking help from a woman she had recently met in a grocery store. After escaping her abusive employers, Shanti discovered Adhikaar, a New York City organization that works with the local Nepali community. The group connected Shanti to critical resources—specifically, to Amy Tai, an attorney with the Urban Justice Center’s Community Development Project. After sharing Shanti’s situation, Tai, who works with a network of private law firms’ pro bono practices, was able to secure a lawyer from the international law firm Gibson, Dunn and Crutcher to represent Shanti in a suit against the Malhotras.¹⁵ It is not standard practice for big law firms to insert themselves in matters involving domestic workers’ rights unless there is substantial abuse and potential for a settlement; that the firm took the case demonstrates just how egregious Shanti’s situation was. On March 16, 2012, the Southern District of New York ordered that Shanti Gurung be awarded nearly $1.5 million in damages. The Court found that under the Fair Labor Standards Act (FLSA), Shanti was entitled to back wages in accordance with New York’s minimum wage—a higher wage than the federal minimum wage. Shanti was also awarded breach of contract damages, federal and state liquidated damages, and damages for emotional distress. Notably, Shanti’s judgment also included overtime relief, as prescribed by New York State’s Domestic Workers’ Bill of Rights. Prior to the 2010 passage of the bill, FLSA exempted live-in workers from the overtime requirement.

      Unfortunately, the case of Shanti Gurung is all too representative of the harsh treatment of many domestic workers at the hands of foreign diplomats. In 2008, the Government Accountability Office (GAO) issued a report identifying at least forty-two cases of abuse of domestic servants by foreign diplomats since the year 2000. The report concluded that the US government’s efforts to reduce the incidence of abuse by foreign diplomats against domestic workers could be improved.¹⁶ It also stated that the number of cases of abuse could potentially be much greater, because many abused household workers are afraid of reaching out to authorities. The report also found that diplomatic immunity, secured in the 1960s by the Vienna Convention on Diplomatic Relations, is an effective shield for diplomats from criminal prosecution and civil suits, and presents a major barrier to justice for domestic workers.¹⁷

      The problem is particularly acute in New York City and Washington, DC, where foreign diplomats typically reside. Ivy Suriyopas, director of the Anti-Trafficking Initiative with the Asian American Legal Defense and Education Fund, has been an anti-trafficking advocate in New York City for nearly a decade. According to Suriyopas, New York and Washington, DC, are “hotbeds for diplomatic and consular activity. We have identified a number of domestic workers trafficked into consular households. Manhattan is a stratified city but there is lots of wealth too; there are a number of families in need of domestic workers but who do not want to pay or follow basic standards.”¹⁸

      The US State Department currently issues A-3 visas for workers of diplomatic personnel and their families, and G-5 visas for workers of foreign officials for international organizations including the World Bank and the United Nations. Janie A. Chuang of the American University Washington College of Law points out that visas are not tied to the worker but rather to the diplomat, providing the domestic worker with lawful status only during the working arrangement.¹⁹ When applying for the visa, diplomats must produce an employment contract stating that they will follow US labor laws, offer information about scope of work and payment schedules, as well as agreeing not take away the worker’s passport or visa, or require the worker to remain at work after hours without compensation. However, these provisions are not necessarily adhered to, as the case of Shanti Gurung illustrates. The State Department’s Foreign Affairs Manual sets forth what the working conditions for employees of diplomats ought to be, but these are not enforceable.²⁰ In addition, exploited workers rarely receive copies of their employment contracts, and the US consular offices only recently began keeping copies of the contracts themselves.²¹ Even if protections were stronger, exploited workers are often too fearful of retaliation against their families in their home countries, or afraid for their own physical safety, to risk speaking up.

      As Shanti Gurung’s story demonstrates, the adoption of the Thirteenth Amendment in 1865 outlawing slavery did not end demand for or supply of free or cheap domestic labor in the United States. On the contrary, US policy has long enabled the importation of cheap domestic laborers but excluded these workers from legal protections. For example, Congress passed the Alien Contract Labor Act in 1885, “to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia.”²² The purpose of the act was to prevent cheap, unskilled labor from penetrating American borders and lowering wages. Yet the importation of domestic workers by other foreigners, such as diplomats, was explicitly permitted under the act.²³

      Even as the right of workers to labor protections took root as an American value during the New Deal, US policy continued to allow some employers to pay little or no wages to workers who had difficulty advocating for their rights. Says Nelson Lichtenstein of the Center for the Study of Work, Labor, and Democracy at the University of California, Santa Barbara, “Employers for a century have been trying to import workers who have something less than full citizenship.” He adds that from a management perspective, “They’re the perfect workers.”²⁴

      The role of capitalism in this mix is clear. Tayyab Mahmud, director of the Center for Global Justice at the Seattle University School of Law, has written that “the construct of free wage-labor, envisaged СКАЧАТЬ