Читать книгу Part of the Family? - Sheila Bapat - Страница 9

1. Slavery and Domestic Work—Then and Now

“Pity me, and pardon me, O virtuous reader! You never knew what it is to be a slave; to be entirely unprotected by law or custom; to have the laws reduce you to the condition of a chattel, entirely subject to the will of another. You never exhausted your ingenuity in avoiding the snares, and eluding the power of a hated tyrant; you never shuddered at the sound of his footsteps, and trembled within hearing of his voice.”—Harriet Jacobs, writer and house slave, Edenton, North Carolina (emphasis added)¹

In 2013, writer-director Quentin Tarantino won an Academy Award for his screenplay for the film Django Unchained. Set in the late 1850s, the movie tells the story of Django, a vigilante slave played by Jamie Foxx, who is given his freedom and then proceeds to kill several slave owners in order to rescue his wife, Broomhilda, a “house slave” for an evil plantation owner. The film explicitly portrays the physical and sexual abuse Broomhilda is forced to endure as she labors inside the white man’s home.

Consistent with the androcentric nature of many of his films, Tarantino’s primary focus in Django is not on the house slaves, who, historically, were typically female.² Rather, the women in Tarantino’s story merely support the goals of the macho Django. Artist and writer Remeike Forbes points out that

not only are women marginal in the movie, but the central female character, Django’s wife Broomhilda, is afforded only a few lines. Her key role [is] as the damsel-in-distress, [whom] the hero must rescue from a “circle of fire”.…. Unfortunately, Broomhilda is also the most rebellious female character. The other black women who appear in the film are just the usual fare of fawning house slaves—“as you please, Big Daddy”—or pleasured concubines.³

Even though—or perhaps because—the film is steeped in this gender problem, the treatment of house slaves in 1850s America, as depicted in Django Unchained, is relevant to the treatment of current-day domestic workers. In many ways, the experiences of nineteenth-century house slaves foretold the story of today’s domestic workers, and there remains a connection between pre-emancipation slavery and modern-day human trafficking. The difference is that trafficking victims and other domestic workers are better able to seek justice from abuse or mistreatment at the hands of their employers—because of the domestic workers’ movement.

Domestic Slavery

While some historical accounts indicate that house slaves received less egregious treatment than those who worked in the fields, according to Harriet Jacobs, a nineteenth century writer and house slave from North Carolina, living inside the slave owner’s home was pure hell.⁴ Jacobs writes how on Sundays her mistress “would station herself in the kitchen, and wait till [dinner] was dished, and then spit in all the kettles and pans…to prevent the cook and her children from eking out their meager fare with the remains of the gravy and other scrapings.” Jacobs goes on to detail how “provisions were weighed out by the pound and ounce, three times a day,” and that her mistress “knew how many biscuits a quart of flour would make, and exactly what size they ought to be.”

Whether a house slave was mistreated or not depended on the whims of the slave owner. And, as with many of today’s immigrant domestic workers, there was no way for a slave to control whether she worked for a gentle master or an abusive one. This uncertainty put house slaves in uniquely vulnerable situations, given the intimacy they shared with the families for whom they worked. Even as they were susceptible to physical, sexual, and emotional abuse, house slaves were also responsible for caring for families and running households, serving as personal servants to their masters and mistresses, and producing the food used by everyone on the plantation. They were commonly on call twenty-four hours a day.

Living in the master’s house also meant that house slaves lacked the support and camaraderie of other slaves, which at times made them more susceptible to physical and sexual assault. A physically attractive female house slave could be particularly vulnerable. Harriet Jacobs wrote, “If God has bestowed beauty upon a slave woman, it will prove her greatest curse. That which commands admiration in the white woman only hastens the degradation of the female slave.”⁵ In addition, many women slaves—house slaves or not—were forced to bear the children of their masters.⁶

Other conditions in which nineteenth-century house slaves toiled persist for domestic workers today, particularly those who live with their employers. For example, many household workers are expected to be available 24/7, are supervised closely by their employers as Harriet Jacobs was, and are vulnerable to their employers’ moods. Barbara Ehrenreich describes this intimacy of working inside the home as the key distinction between labor in the domestic and public spheres:

Someone who stocks shelves in a big box store is unlikely to even know the names of anyone higher up in the corporate hierarchy than the store manager, who in turn may know his or her frontline employees only as a “labor cost.” In contrast…most domestic workers are employed directly by the families they serve. They work in their employers’ homes. They may even live in their employers’ homes, perhaps sleeping in one of the children’s rooms.⁷

In addition to themes of exploitation and abuse, the perception of domestic labor as ancillary or irrelevant to the “productive” economy has also been a feature of care work since America’s earliest days. Early codes regulating indentured servitude in the United States reveal that both slave and nonslave domestic labor were legally deemed to have no economic value. The Virginia House of Burgesses was one of the first elected bodies in the United States to grapple with how the law would codify slavery and indentured servitude based on whether the work took place inside or outside the home.⁸ In 1643, farmers and business owners were subject to a tithing, or tax, for their black female and male, as well as white male, servants who worked in the fields, and who were therefore seen as producing wealth. By contrast, white women servants did not trigger a tax, because “the law presumed they worked inside the home and were not producing wealth.”⁹ Domestic work was also viewed, in both the slavery and post-slavery eras, as “nigger’s work” and “women’s work,” a combination that contributed to and exacerbated its lack of economic value. Legal scholars Marci Seville and Hina Shah have written about how “the mammy image—a large, maternal figure with a headscarf and almost always a wide-toothed grin—persists as the most enduring racial caricature of African-American women. The racial disdain for the black servant—‘a despised race to a despised calling’—justified labeling the work as ‘nigger’s work.’”¹⁰ Adding another layer to that disdain, domestic work was also considered to be “women’s work” and thus a “‘labor of love’…‘outside the boundary of the world’s economy.’”¹¹

Slavery also reinforced existing racial hierarchies between white and black women. Terri Nilliasca, a legal scholar who also works for the labor union Unite Here, unpacks the particular relationship of black women’s labor to that of white women in the pre-emancipation era:

During slavery, the labor of Black women facilitated the ability of White women to live up 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 as consensual sale of labor-power by an autonomous and unencumbered individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism.”²⁵ The vestiges of slavery flourish along with this demand, as does the economic vulnerability of people who provide cheap labor.

As far in the past as slavery may seem, the practice continues to play a role in today’s America. Domestic servitude in the United States (and around the world) influences how many domestic workers are treated, and is often rife with abuse. Legally termed “human trafficking,” the abuse of domestic workers includes the denial of compensation, the demand that laborers work around the clock, and, above all else, the threat or infliction of physical or emotional abuse. The International Labour Organization (ILO) estimates that 2.4 million people are trafficked worldwide each year, about 17,500 of them in the United States.²⁶ Over the years, human trafficking specifically for labor purposes has continued to plague the United States: in 2012, a report released by California attorney general Kamala Harris pointed out that many of those who are trafficked into or within the United States each year are hired into domestic labor situations.²⁷ According to the US government’s Trafficking in Persons Report:

A century and a half [after emancipation], slavery persists in the United States and around the globe, and many victims’ stories remain sadly similar to those of the past. It is estimated that as many as 27 million men, women, and children around the world are victims of what is now often described with the umbrella term “human trafficking.” The work that remains in combating this crime is the work of fulfilling the promise of freedom—freedom from slavery for those exploited and the freedom for survivors to carry on with their lives.²⁸

While human trafficking is often associated primarily with sex trafficking, labor trafficking is in fact more common, but far less likely to be reported.²⁹ Commercial sexual exploitation represents a sizeable part of forced labor and tends to be more widely known and understood among the general public, but the majority of forced laborers actually engage in domestic, agricultural, or sweatshop labor; work in nail salons, factories, construction projects, farming, or hotels.³⁰ There are approximately 8.1 million forced laborers in the non-sex economy around the world, and it is estimated that the United States profits to the tune of $4.5 billion annually through labor trafficking, equaling approximately $4,500 per laborer.³¹ Worldwide, $32 billion is made annually by the exploitation of trafficked victims.

Trafficking victims who end up in domestic servitude are often imprisoned or forced to live in the homes of their employers, who confiscate their passports and other documents. From 2007 through 2012, the United States human trafficking hotline received nearly nine hundred calls related to domestic servitude.³² And given how daunting it is for most trafficked victims to ask for help, many illegal or exploitative situations are believed to go unreported. Much like Shanti Gurung, who lived through unbearable conditions for over three years, many trafficked victims either never seek help or wait until their lives are hanging by a thread.

The Shield of Diplomatic Immunity

Compounding the lack of protections for domestic workers who work for diplomats, the diplomats themselves are immune from prosecution for the crimes they commit against their workers. Under the Vienna Convention on Diplomatic Relations, a current diplomatic agent enjoys near absolute immunity from civil jurisdiction. This immunity is given full effect under United States law, pursuant to the Diplomatic Relations Act, which states that “any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the [VCDR] ... shall be dismissed.”³³ As the preamble to the VCDR recognizes, “The purpose of such ... immunit[y] is not to benefit individuals but to ensure the efficient performance of functions of diplomatic missions as representing States.”³⁴

Under the Vienna Convention, diplomats can argue that their position as a state officeholder means they cannot be held liable for crimes they commit against people who work in their homes. However, there are narrow exceptions to diplomatic immunity, including:

1. A real action relating to private immovable property.

2. An action relating to succession.

3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.³⁵

There is a dispute as to whether “domestic labor” is considered a commercial activity. As the American Bar Association points out in its guide Meeting the Legal Needs of Human Trafficking Victims:

Many advocates contend that hiring a domestic servant also constitutes a commercial activity. Circuits are split on this issue. A suit brought under the Vienna Convention disagreed with that view, although a suit brought under the Foreign Sovereign Immunities Act, did recognize domestic work as a commercial activity…. The arguments for the commercial activities exception to apply are arguably weaker in the context of an intersections case where there is not likely to be any formal hiring process or contractual employment relationship.³⁶

In actuality, however, the commercial activities exception has not often been a successful way of securing relief for domestic workers, given how expansive the reach of diplomatic immunity tends to be.³⁷ The only times domestic workers have been able to obtain legal judgments against their diplomat employers have been after the employers’ service ended and they no longer held diplomatic status, a far more narrow status known as “residual immunity.”³⁸

In 2009, Vishranthamma Swarna became the first domestic servant to win a default judgment against her diplomat employer based on the theory of residual immunity. Since a former diplomat has immunity only for “‘acts performed . . . in the exercise of his functions as a member of the mission,’” the court had to determine whether Vishranthamma’s employer’s actions were “private acts,” and therefore not covered by immunity, or “official acts,” which fell within residual immunity. The court ruled that the diplomat’s hiring of Swarna was not connected with his diplomatic role with the state because, as attorney Jennifer Hoover Kappus has written, “the employment of a household worker was intended strictly to manage his personal affairs, and thus did not fall within Article 3 of the Vienna Convention which stipulates the official functions of a diplomat.”³⁹ While the ruling in this case is encouraging, deeper reforms of the Vienna Convention are necessary to ensure that workers are able to hold their diplomat employers accountable in court.

Ultimately, while the Malhotras could have tried to hide behind the shield of diplomatic immunity in the Shanti Gurung case, they chose not to. In fact, they did not defend themselves at all, as they failed to respond to the original complaint or make any court appearances. They simply ignored the case, as well as the judgment against them, and Shanti has yet to receive the $1.5 million judgment owed to her. Despite this, with Adhikaar and the Urban Justice Center’s support, Shanti has been connected to a better work situation, knows her rights and how to access resources, and is now leading a life free from abuse.

Access to Justice

Fortunately, as the case of Shanti Gurung shows, there is a network of resources available to assist trafficking victims and mistreated domestic workers. While many domestic workers can access these resources only if they are able to leave their abusive situation long enough to connect with someone from the outside world, recent years have brought a surge of activists and lawyers who are committed to aiding, empowering, and representing domestic workers.

One of the first avenues for relief for many domestic workers is the Trafficking Victims Protection Act (TVPA) of 2000 (subsequently reauthorized in 2003, 2008, and 2013).⁴⁰ The TVPA defines trafficking as follows:

Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; [or] the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.⁴¹

The TVPA mandates that the State Department provide workers with a pamphlet explaining their rights and available resources in the event of exploitation. The law also gives consular officers discretion to evaluate whether a worker will face abuse in a given situation, and requires the State Department to record workers’ arrivals and departures from the United States as well as allegations of abuse.⁴² Along with the federal trafficking law, most states have enacted anti-trafficking legislation of their own, with New Jersey, Washington, California, New Mexico, and New York among the states with the most robust policies in place.⁴³

To ensure they receive the legal protections of anti-trafficking legislation, domestic workers need the support and advocacy of community organizers and direct services providers. The power of the direct services model is best illustrated by the track record of the Institute for Policy Studies (IPS), a think tank that offers case management services for victims of trafficking. From 1997 to 2010, IPS assisted hundreds of trafficking victims, all of whom were domestic workers serving within the homes of diplomats.⁴⁴ Most of the workers were African, Southeast Asian, or South Asian immigrants—some of the most underserved, under-resourced, and under-networked of the domestic worker population. With funding from the Department of Health and Human Services authorized by the TVPA—as well as money from private foundations—IPS was able to connect workers to food, shelter, health care, and legal services for a thirteen-year period before staff departures in 2010 began to limit the group’s ability to provide these services. By that time, other social work agencies had begun taking on this work. “We were running a social services agency out of a think tank,” says Tiffany Williams, advocacy director of IPS’s Break the Chain campaign, “but we had to: we were their only lifeline to the outside world.”

Expanded direct services and advocacy networks on behalf of domestic workers and trafficked victims have helped more and more domestic workers to become aware of their rights and to bring cases against their abusive employers. Rocio Avila, an attorney with the Golden Gate University School of Law’s Women’s Employment Rights Clinic, represents domestic workers who sue for fair wages and overtime. Avila believes that these expanding resources, all with a presence on the Internet, enable more domestic workers to connect with advocates who can help them. Grassroots groups like the South Bay Coalition to End Human Trafficking (SBCEHT), for example, organize communities of domestic workers to inform them of their rights and the resources available to them. Along with SBCEHT, groups such as Mujeres Unidas y Activas and Filipino Advocates for Justice work in conjunction with law enforcement and legal services to aid trafficking victims. SBCEHT was able to connect Zoraida Pena Canal, an abused domestic worker, with Avila. “The power of the Internet, along with the potent domestic worker movement, actually connected this trafficking victim to social services and then to me,” Avila says. “It’s an ecosystem of law enforcement, advocates, social services providers, and physicians who help victims.”⁴⁵ SBCEHT has a hotline for trafficking victims to access help as well. The National Domestic Workers Alliance, though primarily focused on ensuring labor protections for privately employed domestic workers, in 2013 began a campaign focused on addressing human trafficking.⁴⁶

Since advocates for trafficked domestic workers must work closely with law enforcement, there are groups whose purpose is to bridge the gap between domestic workers and the legal establishment. The Freedom Network, a national conglomeration of organizations, advocates, scholars, and attorneys, has long been an organizing force to aid trafficking victims. Ivy Suriyopas of the Asian American Legal Defense and Education Fund, who co-chairs the Freedom Network, says, “We crowd-source our knowledge and make vital connections; we rapidly respond to problems that we see,” adding, “Domestic workers always walk through our doors. They work in homes, isolated; they are often the only employee in the entire household. They often have limited education or English; maybe they are vulnerable because of their immigration status. All of those factors can leave workers vulnerable, and in the wrong employer’s household, it could lead to a trafficking situation.”

In the context of legal services, a trafficking victim usually requires multiple types of advocacy—in particular, an immigration lawyer familiar with the T or U visa process. (A U visa enables victims of trafficking to remain in the United States legally while they pursue claims against their abusive employers, while a T visa permits human trafficking victims to remain in the country if they agree to testify against their employers.) In addition, the victim may pursue a civil case, which is the piece of the puzzle that Rocio Avila handles. “If they get deported, they can’t pursue the criminal or civil matter,” she says. “The federal trafficking statute is to ensure that the victim cooperates with law enforcement to be able to bring the perpetrator to justice.”

To seek help, a worker first must escape his or her abusive employer with the assistance of an acquaintance or through connecting with a community organizer from an organization like SBCEHT. In Pena Canal’s case, the employer, a successful real estate executive, brought Pena Canal to California from Peru to serve as a nanny and housekeeper. She kept Pena Canal working around the clock for no pay for two years. “No one expected this successful woman who worked in real estate would do this,” says Avila. “But Pena Canal ended up confiding in parents at the school where she picked up the kids she cared for. The janitor at the school helped her, got the school secretary involved, and in a couple of months they built trust with her to convince her that she should leave.” Before doing so, one of the parents at the school went online and found Domestic Workers United in New York; workers there told her to call Avila in San Francisco. Ultimately, Pena Canal was awarded over $600,000 for compensatory damages and emotional distress, and her abusive employer was sentenced to sixty months in prison. “The process of convincing the court of the above was itself a product of community lawyering and grassroots advocacy at its best,” Avila says. “There is no way we could have prevailed if hadn’t been for the groundbreaking work of the many individuals behind the domestic worker movement both in New York and in California, whom I used as my experts to educate the court and advocate for dignity for my client.”

Despite the increased efforts of advocates and activists, many domestic workers still do not know their rights, or that the treatment they are receiving at the hands of abusive employers is a crime. Avila has observed that even workers whose cases do not rise to a trafficking charge live in fear of retaliation. “For the live-in nannies and housekeepers, the abuse I see is rampant. Employers are getting away with not even paying minimum wage. Most of my clients don’t complain, out of fear: fear that their employer will turn against them, accuse them of stealing, call the cops. My clients live at the beck and call of their employers. I had one client whose employer would ring a bell, call her when they wanted an apple, water, tea. That doesn’t always give rise to trafficking, but her situation is very bad, exploitative, devoid of dignity, not sustainable.” Avila says that employers often tell her clients things like, “I can’t pay you right now. If you leave, I will contact ICE and have you deported, and terrible things will happen to you.”

To make matters even more challenging for trafficking victims, some of the resources meant to assist them were for years restricted by a contract between the Department of Health and Human Services (HHS) and the National Conference of Catholic Bishops (NCCB). In 2006, HHS signed a contract with NCCB making the organization an intermediary between funding for TVPA and the organizations serving trafficked victims. However, NCCB did not allow advocates like IPS to provide any information about contraception or abortion.⁴⁷ “I had to tell the women who came to me during intake that contraception and abortion services would not be provided,” recalls Tiffany Williams of the IPS. “During goal planning with the women who came to me, I had to state that we can’t cover that information, the relationship between HHS and NCCB mandated that. Looking back on those interviews I wonder if I could have phrased it in another way so as not to preempt care these women could have received.”⁴⁸

The American Civil Liberties Union (ACLU) sued HHS over the contract, winning a judgment in Massachusetts Federal District Court saying that HHS had violated the Establishment Clause of the First Amendment to the Constitution by contracting with an entity that imposed its religious beliefs on trafficked people.⁴⁹ However, the First Circuit Court of Appeals vacated the ruling, holding that the federal government could still choose to contract with entities that refuse to offer reproductive health care to immigrant women who are victims of trafficking or who are detained by Homeland Security or are otherwise under government control. In her appellate brief to the First Circuit Court of Appeals, ACLU attorney Brigitte Amiri argued, “HHS has not come close to showing that it is absolutely clear that the circumstances giving rise to this case will not recur…. Furthermore, in addition to the TVPA contract, HHS has a long—and ongoing—history of contracting with [the Catholic Bishops] and accepting precisely the same abortion and contraception restrictions that are at the heart of this case.’”⁵⁰ When the contract between HHS and NCCB lapsed in 2011, the Obama administration did not renew it and instead went with a different intermediary, stating in its request for proposals that it would “have a strong preference” for groups that offered comprehensive health care.

“There Is Not as Much Help as There Is Need”

While many employers of domestic workers still view them as undeserving of equal employment rights, the current movement is working to change this viewpoint. The surge in activism over the past decade has raised consciousness among domestic workers and the general public. A former community organizer, Rocio Avila credits these activists with being a force for change in how domestic workers are able to access the resources they need to turn around their lives. This advocacy has engaged many diverse actors, from community organizers who live and work alongside domestic workers, to the highest leadership in the federal government, all of whom are “in motion around a shared vision,” as National Domestic Workers Alliance director Ai-jen Poo has said.

There are numerous examples of government officials who are also allies of the movement; former labor secretary Hilda Solis, for example, who resigned her post in early 2013, pushed for minimum wage and overtime pay for domestic workers. Ultimately, though, it is today’s advocates for domestic workers’ rights who are helping to secure victories for domestic workers. Avila is a perfect example of this. Since graduating from law school in 2006, she has been representing domestic workers in Northern California in civil suits against abusive employers. Her clients have typically been denied the wages promised them, or even the legally mandated minimum wage. In the more egregious cases, her clients are human trafficking victims who have been physically or emotionally abused. All the work that she and her fellow activists have been doing on behalf of domestic workers and trafficking victims is still not enough, however; according to Avila, “There is not as much help as there is need.”