Diana Vellos
Excerpted from: Diana Vellos, Immigrant Latina
Domestic Workers and Sexual Harassment, 5 American University
Journal of Gender and the Law 407-432, 409, 413, 419-428 (Spring,
1997)(211 Footnotes)
Latinas today constitute the largest category of women entering the
domestic labor force in the United States. Many of these women are
undocumented workers. Undocumented Latina domestic workers endure
low wages and hostile working environments. Employers commonly
threaten to deport undocumented domestic workers if they refuse to
do more work, reject sexual advances, or attempt to return home.
These workers are vulnerable to employer exploitation.
. . .. Domestic service has long been described as an entry level
position for foreign-born women and their children which offers
social mobility to move on to higher-status and better-paying jobs.
For example, white, European immigrants were able to use domestic
service as a transitional occupation. For women of color, though,
this occupation does not provide a bridge or transition to other,
better jobs. Women of color experience domestic service as an
"occupational ghetto". One explanation for this phenomenon is that
race and gender domination have been characteristics intrinsic to
domestic service. The domestic situation is a microcosm in which to
study how gender, class, and racial inequalities are reproduced and
reinforced.
The total number of undocumented women who perform domestic service
is difficult to discern. The main reason for this is that domestic
service is a part of the "underground economy." Employers do not
report undocumented workers to the IRS or to the Immigration and
Naturalization Service (INS), making sources of statistical
information unreliable.
. . .
Undocumented Latina domestic workers are faced with low wages and
hostile working conditions. These women are vulnerable. "Employers
can, and do, exploit undocumented workers by paying them substandard
or illegally low wages and blocking their attempts ... to improve
conditions in the workplace." Undocumented Latina workers are
especially vulnerable to sexual harassment. Suzanne Goldberg
describes a possible work environment in which an undocumented
Latina domestic would be placed.
Pia, a thirty-five year old woman from El Salvador, has lived and
worked in California for the last few years. She speaks minimal
English and does not have a green card or other documentation
allowing her to remain legally in the United States. She has family
in El Salvador and some cousins and other relatives living and
working (as household workers and day laborers) in the vicinity. She
lives with a young white professional couple and their three small
children. She earns low wages ($80 per week) and has no Social
Security, workers' compensation, or unemployment coverage. She has
Sunday off each week, although the employers will occasionally ask
her to work when they have another engagement that day ... She would
like to obtain legal documentation, then find other work and arrange
for her family to immigrate. She has never been physically or
sexually assaulted by the father of the children she cares for, but
he and his friends have alarmed her with their sexual suggestion.
In the hypothetical that Goldberg creates, Pia does not experience a
sexual assault, but is concerned about the sexual suggestions that
her employer makes. Goldberg goes on to describe that Pia "fears
sexual exploitation by her male employer and his friends, having
heard stories ranging from requests for stripteases to actual rape."
In Goldberg's scenario, none of Pia's colleagues reported to the
police their stories of abuse.
Even though Pia's story is hypothetical, it is very useful in
gaining an understanding of the fears and sexual exploitation
undocumented domestic workers face. Unfortunately, there are not
many reported cases of sexual abuse experienced by undocumented
workers, mainly because undocumented workers depend upon their
employers for their livelihood. Consequently, they feel vulnerable
to their employers' demands and fear being deported back to their
native land.
Goldberg notes that Pia experienced economic necessity, which also
can trap women into exploitative positions. Pia feels she
cannot financially afford to be jobless, even for a few weeks. Also,
although she has occasionally tried to find a better paying job
which would offer more security and benefits, she has not succeeded
either for lack of documentation or, she senses, because of
generalized discrimination by employers against foreigners.
Understanding the concept of economic necessity is vital to
understanding the issues facing undocumented domestic workers. Many
cannot afford the luxury of quitting their current jobs to find
better employment. Even though there are networking systems in the
domestic service field, undocumented workers are at a disadvantage
because of their lack of documentation. Undocumented domestics make
employment decisions which reflect their concerns about immigration
status, language ability, sexism, racism, poverty, family, and other
factors that shape their lives. Many times this balancing of
concerns results in women feeling compelled to remain in abusive
environments.
Why, then, do undocumented immigrant women
go into domestic service if they are paid low wages and fear sexual
advances? Many undocumented domestics feel their risk of entrapment
by the INS is considerably lower in a private home than it is in a
public place such as a factory. In addition, the wages and working
conditions would not necessarily be better for an undocumented
female worker in a public place of employment. Undocumented
immigrant women often work in conditions far worse than, and for
wages that are below, those offered to immigrant men or
non-immigrants.
Exploitation of undocumented domestic workers is accepted by our
society. Society expects undocumented workers to accept the least
desirable jobs for the least amount of pay. They are expected to put
up with abusive working environments and no benefits. The mentality
seems to be, if the aliens do not like it, they can leave. According
to INS official James Smith, "It's human nature--the abuse and
exploitation."
Mary Romero also recounts an incident she witnessed with an
undocumented domestic worker and the sexual remarks she encountered:
I was shocked at my colleague's treatment of the
sixteen-year-old domestic whom I will call Juanita. Only
recently hired, Juanita was still adjusting to her new
environment. She was extremely shy, and her timidity was made
even worse by constant flirting from her employer. As far as I
could see, every attempt Juanita made to converse was met with
teasing so that the conversation could never evolve into a
serious discussion. Her employer's sexist, paternalistic banter
effectively silenced the domestic, kept her constantly on guard,
and made it impossible for her to feel comfortable at work.
Romero describes how Juanita's employer would attempt to break the
tension in difficult situations with flirtatious and sexist remarks
to Juanita. In the situation Romero recounts, there is no mention of
a sexual assault, but the sexual remarks commonly made created an
uncomfortable working environment for Juanita. Because of the lack
of reporting among undocumented workers, it is hard to analyze any
statistical data.
There are several cases in which undocumented workers who were
sexually harassed brought suit and won. One of the first such cases
brought, United States v. Davila, involved two undocumented women
who were sexually assaulted by two border patrol officers. The
officers stopped an automobile containing two United States Army
privates and two Mexican women. The car entered the country
illegally. The border patrol officers kept the two women in their
custody and "exacted a price for their liberty." That price was
sexual intercourse. The private, who was engaged to one of the
Mexican women, filed charges with the INS after he discovered what
had happened. Both officers were charged with sexually abusing the
two Mexican women and with conspiring to deprive the women of their
liberty by coercing sexual favors from them." The border patrol
officers were found guilty of the charges. The Fifth Circuit Court
found a high degree of corroboration in the testimony of the
soldiers and the women surrounding the stop and the sexual assault.
This degree of corroboration was more than sufficient to allow a
reasonable jury to identify the defendants as the perpetrators.
There are two interesting aspects about this case. First, this case
deals with border patrol officers. This triggers the protections
embodied in the idea of "under color of any law." The officers not
only violated the law by coercing sexual intercourse from the
undocumented women, but they used their positions as governmental
officials to do so. This is obviously distinguishable from a
situation where an employer coerces sexual acts from an undocumented
domestic. In the first situation, the wrongful use of a governmental
position is an issue, whereas in the second situation there is no
such issue. The second interesting point about this case is that one
of the women's fiancé was the person who filed the claim with the
INS. He was a private in the military and a United States citizen.
One of the likely reasons this case went to litigation is that the
women had a support network of United States citizen contacts to
help them bring suit. Most undocumented domestic workers do not have
such support networks. Many times undocumented domestics feel
isolated and are uninformed about their rights under United States
law.
Mary Romero discusses this feeling of isolation experienced by many
undocumented workers in domestic service. Romero notes how Juanita,
the undocumented worker whom she met while staying at a colleague's
house, experienced this alienating feeling. "Juanita lowered her
head and in a sad, quiet voice told me how isolated and lonely she
felt in this middle-class suburb literally within sight of Juarez."
Romero explains that Juanita's isolation and loneliness were in
response to the norms and values surrounding domestic service. Many
domestics experience isolation even though they work in large
households. Live-in Latina immigrant domestics are separated from
family and friends, living with employers who consider them to be
invisible. Undocumented Latina domestic workers experience culture
shock and language barriers. All of these factors create a feeling
of isolation, which can and does inhibit many undocumented domestics
from challenging exploitative work environments.
EEOC v. Hacienda Hotel raises other interesting issues surrounding
undocumented women workers and sexual harassment. Hacienda Hotel is
a case in which the EEOC alleged that the hotel general manager,
executive housekeeper, and chief of engineering engaged in unlawful
employment practices against female housekeeping department
employees. The unlawful employment practices included sexually
harassing women, terminating them when they became pregnant, failing
to accommodate their religious beliefs,and retaliating against them
for opposing Hacienda's discriminatory practices. The suit involved
five current and former Hacienda maids, all but one of whom were
undocumented workers.
When some of the women became pregnant, comments such as "that's
what you get for sleeping without your underwear," "stupid women who
have kids," "dog," "whore," and "slut" were made by the managing
staff of the hotel. Other comments such as "women get pregnant
because they like to suck men's dicks" were also made to pregnant
workers. These women workers were also terminated due to their
pregnancies, after being informed that they were too fat to clean
rooms. On many occasions, the chief of engineering threatened to
have workers fired if they did not submit to his sexual advances.
The chief of engineering also made sexually harassing comments to
the women domestics at the hotel. Mercedes Flores, one of the
immigrant domestics who brought suit, stated that the chief of
engineering regularly offered her money and an apartment to live in
if she would "give him [her] body". He also assured her that she
would never be fired if she would have sex with him.
The Ninth Circuit Court found that Hacienda's practice of
terminating pregnant employees violated Title VII and that the hotel
was liable for sexual harassment by its supervisors. This factual
situation is different from that experienced by undocumented live-in
workers who work in private homes. The women in the Hacienda Hotel
had each other for support and corroboration. The stories of each of
the women strengthened the story of each individual woman. Domestics
working in private homes do not have other people to validate or
strengthen their stories, and are isolated from other individuals
who would be willing and able to attest to their exploitation.
Typically, it is the undocumented domestic worker's word against
their employer, who usually appears to be an upstanding member of
society.
Harassment of immigrant women is common. One District Attorney's
office and a community group in a Northern California town
concluded, based on their investigation in a local case of sexual
abuse, that such episodes happen quite often. For instance, Maria de
Jesus Ramos Hernandez, who traveled from Mexico to the United States
to work for a chiropractor, in order to raise money for an operation
to cure her daughter's birth defect. Almost immediately, her
employer began to sexually abuse her. She did not immediately report
the attacks or run away because she was alone and isolated, with no
place to go. She felt she "could not deny him pleasure ... because
of what he paid her." Ramos Hernandez did not immediately report the
abuse for many reasons. She was afraid that the doctor would kill
her (and no one would even notice she was missing); she had no
money, identification, or knowledge of English; she did not think
that the police would believe her word against that of a doctor; and
she felt that she would be blamed.
Ramos Hernandez's story is similar in many ways to the abuse that
other immigrant women face working in the home. Her story helps
explain why undocumented women are unable to take action to end the
harassment they experience. To respond aggressively to the
harassment, they must confront their learned cultural values,
including self-blame and passivity. Their inability to understand
the situation is further complicated because their cultures have
different views of sexuality, which may not include the concept of
sexual harassment.
Maria Ontiveros noted that the race and gender of immigrant women
shape and enhance the harasser's actions. Harassers choose these
women because they lack power relative to other workers, and because
they are often perceived as passive and unable to complain. Racism
and sexism blend together in the mind of the harasser, so that
comments made and actions taken against the immigrant women workers
embody unique characteristics of their racially stereotyped
sexuality. In many ways undocumented working women are targets of
discriminatory harassment because of their race.
Many undocumented domestics try to get their immigration status
legalized through employer sponsorship. They realize that their
illegal status makes them vulnerable to exploitation. If
undocumented domestics were legally allowed to work in the United
States, they would have more leverage against abusive employers.
Threats of deportation would no longer have value.
Romero illustrates this exact point:
Isabel Garcia-Media recalled an employer who threatened to call
the immigration when she refused "to clean her house and iron
two big plastic bags full of clothes--do everything for $5." She
responded by pulling out her resident alien card and telling the
employer to call whomever she wanted.
In Goldberg's hypothetical account of Pia, an undocumented domestic
worker, she also recounts why Pia wanted to obtain legal
documentation. Legal documentation would enable her to bring family
from El Salvador to the United States, and secure her job with her
employer. She wanted employment stability because she feared her
employer might fire her and hire another woman with legal
documentation. She also wanted legal documentation preserve the
possibility of finding better work.
Since legal documentation is so desirable, why are more employers of
domestic workers not putting in the paperwork? Many employers fear
liability for not paying taxes or providing benefits to their
undocumented domestic workers throughout the years. Also, the
immigration process is extremely long and burdensome. It is possible
to sponsor a housekeeper for an immigrant visa (green card), but the
process is so lengthy under the present law that most immigration
lawyers advise against beginning the process. Sponsoring a household
worker for an immigrant visa requires three steps: 1) obtaining a
certification from the Department of Labor that there are no
qualified U.S. workers to fill the job; 2) obtaining approval of a
visa petition from the INS; and 3) obtaining the issuance of the
immigrant visa from the Department of State. It is important to note
that if undocumented individuals work in the United States without
authorization, they are barred from adjusting their status in the
United States and must leave the country in order to obtain a green
card based upon employer sponsorship. The best estimates available
state that it will take ten to fifteen years under the current
system for a domestic worker, beginning the process today, to obtain
a green card. Employers should also know that they cannot lawfully
employ an undocumented worker until she obtains an immigrant visa or
employment authorization from the INS.
During this long process, an undocumented worker risks seizure and
deportation. The sponsoring employer also risks investigation,
prosecution, and fines between $250 and $2000. Consequently, many
undocumented workers feel trapped in an abusive working environment
while awaiting their legal documentation. Some domestic workers have
endured harsh working situations for years simply to obtain a green
card. If an undocumented domestic worker chose to leave her
employer, she would give up her opportunity for a green card.
Many employers use their ability to help an undocumented domestic
worker get her green card to exploit the worker and coerce her into
doing more work or performing sexual favors. Employers' rewards and
inducements often bind the worker in an emotional and economic trap.
Simply the promise to help an employee get a green card obligates
the worker beyond the boundaries of the contractual work
arrangement. One woman recalled trying to leave a live-in job once
she had obtained a green card. "The employer would break down
crying, begging her to stay, telling her it was unfair to leave
after all they had done for her."
Another problematic issue for undocumented domestics working in
private homes is that penalties for employers are minimal and often
not enforced. Many immigration attorneys inform their clients that
those who hire undocumented workers do violate an immigration law,
but not a criminal law. This is a civil violation similar to a
traffic violation. It becomes obvious that the immigration laws are
not strictly enforced, particularly against employers of nannies or
household workers.
Generally, families in the United States have escaped liability
under immigration sanction provisions (such as the IRCA). Congress
recognized the widespread practice of employing undocumented
household and child care workers, and stated that small-scale
violators should not be sanctioned. Consequently, the INS has
released statements indicating that it will not pursue families
illegally hiring household workers.
Professor M. Isabel Medina brought this issue to light in her
discussion of Nora and Hedda, a hypothetical employer and immigrant
domestic, respectively. Nora visited an attorney and was informed
that the process for petitioning for Hedda is both long and
cumbersome and not really necessary, because the INS will not
prosecute these types of violations. The story continues as follows:
Nora is torn. She wants to obey the law, but she also wants to
secure for her child the best care she can afford. To Nora the
choice is clear. Nora and Hedda start the visa application
process ... It is almost a year after the filing of the
application that the DOL [Department of Labor] issues the
certification to Hedda ... Hedda and Nora have a seven to ten
year wait for the visa. During this time, Nora risks
investigation, prosecutions and fines ... Hedda risks seizure
and deportation. Nora's baby risks losing the continuity of care
with a trusted and loved caretaker.
It seems that the current system not only exploits undocumented
domestic workers, but also hinders their opportunities to be
productive members of our society. . . . |