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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)(Full Document)
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 fianc 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. . . .