Feminism and Immigration Law: A Silent Majority, Behind Closed Doors

The Intersectionality of Feminism and Justice at Work | Part III

The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens

This is part III of my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog. (Parts I & II).

Although the Equal Pay Act and Title VII changed the face of the workforce for many American women, there were two large segments of the workforce that did not benefit from these changes in U.S. law. Cesar Chavez helped bring attention to the plight of the immigrant farm workers, but the experiences of immigrant women and domestic workers has largely remained behind closed doors, silenced. Their voices are relegated to the forgotten edges of policy debates, and when domestic labor is addressed at all, the value of the work is discounted. How hard is it, after all, to clean a room? — or so the thinking goes. Domestic workers have faced a long and challenging battle trying to gain recognition and protection under U.S. Law.

indentured servant advertisement34The first domestic workers in America came as indentured servants to the Virginia colonies. In Between Women, Rollins says that, “from it’s (sic) beginnings, domestic servitude in this country has embodied a . . . contradiction between principles and behavior that did not exist in seventeenth- or eighteenth- century Europe, a contradiction between the value of egalitarianism and the actual class and caste stratification.” (Rollins 48)

DomesticSlavewithPlanterFamily330After the Revolutionary War, the experience of domestic servitude split along the Mason-Dixie. In the North, domestic servants were free persons engaging in voluntary paid labor. Often, they were of the same race and community as their employers. (Rollins 50). In the south, “domestic workers,” or house slaves were the most numerous of the slaves. The 1848 Charleston, South Carolina census shows that out of a population of 7,355 adult slaves, 5,272 were labeled as some form of domestic servant. (Dawson 30-48).

irish domestic helpIn the mid-nineteenth century, the rising fortunes and opportunities for middle-class white women led to an increase in demand for domestic servants. Despite the increase in labor demands, domestic work was still seen as a low-status occupation, and white women eschewed it if at all possible. During this time, domestic workers were primarily comprised of immigrants from Ireland, Scandinavia, and China. Following Emancipation, Black women joined the ranks of underpaid and under-appreciated domestic workers. (Raaphorst 33)

Domestic workers have long been drawn from the subclasses resulting from discriminatory laws. As such, these workers have been historically silenced and cut off from any avenue to protest employment abuses; a reality that persists even today. Early attempts to organize domestic workers were largely unfruitful. In 1881, Southern domestic workers attempted to organize, demanding better pay. They held strikes in Galveston, Texas and Jackson, Mississippi. A few years later in Chicago, a 1901 effort to organize domestic workers sputtered out due to lack of community support. (Caldwell)

In 1880, the number of immigrants entering domestic service began to drop. This trend continued into the 20th century, and as both native- and foreign-born white working women opted to move into manufacturing or the garment industry rather than join the ranks of domestic servants. The space left by their departure was filled by Black women migrating Northward to get away from the tenancy system, Jim Crow laws, the boll weevil infestation, and a series of heavy rainfalls and flooding in 1916. By 1920, 46 percent of employed Black women were domestic workers. (Allen, Harris, and Schuylder)

In 1934, the Domestic Workers Union was established, headed by Dora Lee Jones, a Black domestic worker. By then, well over 50 percent of employed Black women were domestic workers. The DWU was affiliated with the New York City Building Service Union, Local 149, but membership was low. In the end, the DWU fizzled out, as had previous attempts to organize domestic workers. Union Maids Not Wanted explains why it was so difficult for domestic workers to effectively organize:

“Ignored by labor unions, discriminated against, neglected, and at best patronized by their government, domestic workers once again attempted to form independent unions . . . like all other previous individual attempts at a collective action, [it] was at best locally effective and short-lived.” (Raaphorst 289)

In 1935, the National Labor Relations Board Act of 1935 was passed, protecting the right of workers to organize, participate in collective bargaining, and engage in strike actions. It was an unprecedented legal action on behalf of worker’s rights, yet it excluded large swathes of the working population. Among those excluded from the protections of the NLRA were domestic workers and farm laborers. When the Fair Labor Standards Act of 1938 was passed and established a minimum wage, reduced workweek, and increased compensation for overtime for American workers, it also excluded domestic and agricultural workers.

black servantYet despite both the government and union organizers discounting the value of domestic workers, demand from employers continued to rise. By 1940, a full 60 percent of Black working women were employed as domestic workers. It was only after the Civil Rights Act of 1964 was passed, the percentage of Black domestic workers began to drop.

In the wake of Brown v. Board of Education, the Equal Pay Act of 1963, and the Civil Rights Act of 1964, there were more employment options becoming available to Black women. Yet these same laws, intended to address discrimination based on race or gender, once again did not extend to protect the rights of domestic workers. Title VII of the Civil Rights Act applies only to employers with 15 or more employees, which virtually excluded every domestic worker in the United States.

In 1974, the Fair Labor Standards Act was amended to provide some minimal protections to domestic workers, such as requiring minimum wage and overtime pay, but the amendments specified that babysitters and companions to the elderly were still excluded. By 1979, only 32 percent of employed Black women were in the domestic service industry. Meanwhile, the percentages of Black women employed as clerks or “other service worker” were rising. (Rollins 56).

tumblr_m6lr1xB6n01rt1tqoo1_500As Black women left the domestic workforce, Latina women filled the void they left in a reprisal of the role played by Black women 60 years previous. Once again, the face of domestic labor in America was changing.

One of the unique challenges in domestic work is the intimate nature of it. Difficulties arise in any employment situation, but a domestic worker must learn to navigate a work environment headed by a boss who often does not realize they are heading a workplace. The normal work and social boundaries constraining the employer are subconsciously dropped in the familiarity of their home. Rights that are expected in “official” workplaces, such as regular breaks, working equipment, days off, or regular wages are treated as unreasonable, selfish, or thoughtless demands. In response, domestic workers tend to fall back on non-professional behavior and psychological manipulations, such as threatening to quit in order to get a raise. The success of this tactic is by no means guaranteed, while the risks are extremely high. (Romero 158)

Perhaps it is the influence of 20th century ideas, such as an “illegal person,” or the perceived necessity of a patrolled border, or the existence of a U.S. Immigrations and Customs Enforcement (ICE) department, but it is acceptable both socially and legally for an employer to use the threat of deportation to ensure obedience in the workplace. Undocumented Latina women, or documented Latina women who are supporting undocumented friends or family, learn all too quickly how willing an employer is to utilize that threat. When David Bacon, author of Illegal People, interviewed Luz Dominguez about her retaliatory firing, he described how she perceived her employer’s shift in attitude:

“When Dominguez describes what happened at the hotel, she is still so angry that her voice trembles. “She [Smith] told us we’d have to show her our Social Security Cards so they could check the numbers,” she recalled bitterly. “Before, they’d tell us sometimes they’d received a notice about our numbers not matching, but they never required us to take any action, or told us we couldn’t continue working.” (Bacon, ebook)

These women, who live and work in communities affected most by immigration policy, have not merely been left out of the conversation; they have actively been restricted it from participating. Policymakers have framed the immigration debate as one that must be resolved by American citizens and their duly elected representatives — even though undocumented immigrants contribute to the community through both taxes and labor. In restricting the conversation to “citizens only,” politicians are attempting to silence the voices and stories of thousands of undocumented U.S. workers. In response to this culture of suppression, the Latino community has organized and participated in May Day Demonstrations, protest marches, and even union organizing, despite the threat of deportation.

logoAt last, the perseverance seems to be paying off. In 2007, the National Domestic Workers Alliance was founded, and started a grassroots campaign to pass a domestic worker’s bill of rights in New York State. Six years later, the organization is the nation’s leading advocate for the rights and needs of domestic workers throughout the United States, and boasts 39 affiliates serving more than 10,000 people.

In 2010, the New York Domestic Workers Bill of Rights, championed by the NDWA was signed into law. It is the first bill of its kind in the country, and provides the domestic workers of New York state with the right to overtime pay, one guaranteed day off per week, three paid days off each year, protection under New York State Human Rights Law, as well as the creation of a special cause of action for domestic workers who suffer sexual or racial harassment. (“Domestic Workers’ Bill of Rights”).

In 2012, California voters approved a similar Domestic Workers Bill of Rights, but it was vetoed by Gov. Jerry Brown. In May 2013, Hawaii approved a Domestic Workers Bill of Rights which makes it illegal to discriminate against domestic workers on the basis of race, gender, or sexual orientation and brings domestic workers under the state’s wage and hour laws. As of the writing of this paper (2013), it still needs to be signed into law by Gov. Neil Abercrombie.

The time is ripe for major legislative change. In 1866, Congress passed a Civil Rights Act which extended citizenship to emancipated slaves. This was followed by four more Civil Rights Acts, which approached and addressed the question of racism in a scattershot and piecemeal manner. Within a decade, the pushback of business lobbyists had undermined the promise of Reconstruction, and the infamous institution of Jim Crow spread across the south in place of slavery. It would be nearly one hundred years before the question of racial equality in America was legislatively addressed once more.

The Civil Rights Act of 1964 was not so much unique in the intent, but in the scope, which is what needs to happen now. The United States needs major legislation that does not tweak or amend existing workers rights laws, but upends it and throws it angrily out the window.

The rights of the U.S. working class rests upon three pillars: The right to organize, wage parity, and anti-discrimination laws. Regarding organization and wage parity, the two pieces of legislation proposed to address how pro-business interests have systemically chipped away at worker rights, The Employee Free Choice Act and The Paycheck Fairness Act, have repeatedly been stalled or rejected. (HR 438, “Employee Free Choice Act Bill Summary”). These bills need only popular and Congressional support, and the addition of language that explicitly extends their protection to undocumented workers. It is time to make a serious positive change in the rights of the working class residing in the United States of America, both documented and undocumented. It is time to truly proclaim solidarity forever.

 

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