The petition to the Inter-American Commission on Human Rights reads like something that could have been written by Charles Dickens or Upton Sinclair. It tells of working conditions that include eighteen- to twenty-hour workdays, withheld wages, verbal humiliation, physical battery, sexual harassment, and limited access to the outside world.
“Petitioners and declarants . . . describe being denied freedom of movement, being closely monitored, [and] made to work for extremely long hours without break[s],” it states. “They describe being harassed, sexually abused, told they were slaves and treated accordingly.”
These accounts are not a relic of history. The petition was filed in March by the American Civil Liberties Union and the University of Chicago Law School. According to the ACLU, it asks the Inter-American Commission on Human Rights, an autonomous arm of the Organization of American States, to “acknowledge and address the U.S. government’s failure to protect” the 2.5 million nannies, house cleaners, and care workers who comprise the U.S. domestic labor force.
According to the National Domestic Workers Alliance, immigrant domestic workers are mostly female; the majority come from Central America, Mexico, India, Indonesia, the Philippines, and Africa; many are victims of human trafficking.
“Local departments of labor need to inform employers of their obligations to the people who work in their homes and inform workers of their rights to be fairly compensated.”
Sarah Bessell, deputy director of the Human Trafficking Legal Center, a Washington, D.C.–based organization providing pro-bono legal representation to trafficking survivors, tells The Progressive that, while the line separating human trafficking from domestic service exploitation is sometimes hard to discern, trafficking victims are typically prevented from leaving their worksite or are threatened with physical or psychological violence.
To illustrate this, she cites the case of Fainess Lipenga, an immigrant from Malawi who was brought to the United States in 2004 by Jane Kambalame, then beginning an eight-year stint as a first secretary in Malawi’s embassy in Washington, D.C.
Lipenga had cared for Kambalame’s daughter in Malawi and, according to a complaint filed in the U.S. District Court of Maryland, agreed to work as a live-in aide. She was promised a monthly salary of $980 for a five-day, thirty-five-hour workweek and told that benefits would include paid sick leave and health insurance. Lipenga was further assured that she would be able to attend English classes.
None of this materialized. In fact, the complaint alleges that as soon as Lipenga arrived in the United States, Kambalame hid her passport, threatened to report her to immigration authorities if she left the house, and forced her to work from 5:30 a.m. to 11 p.m., six days a week. Her tasks included child care, meal preparation, house cleaning, washing and folding laundry, mending torn garments, serving overnight guests and other visitors, and shoveling snow.
In addition, the complaint alleges that when Kambalame installed an entryway keypad, she refused to give Lipenga the code. On top of this, Lipenga was forced to sleep on a wooden basement floor with just one pillow and a thin blanket. Her salary, when she was paid, ranged from $0 to $180 a month.
It was only after Lipenga escaped in 2007—by that point she was extremely ill and desperate to get away from Kambalame—that she was able to connect with other immigrants and find help. She is now a lawful, permanent resident of the United States.
“In this instance, Kambalame had diplomatic immunity,” Bessell says, which prevented her from being criminally charged. And while Lipenga eventually brought a civil lawsuit under the Trafficking Victims Protection Reauthorization Act, which prohibits “peonage, slavery, and trafficking in persons,” by the time the case got to court, Kambalame had left the country.
“What’s really upsetting is that Kambalame was actually promoted to high commissioner of Malawi to Zimbabwe and Botswana,” Bessell relates, sounding exasperated. “Even more galling, Lipenga won a default judgment against Kambalame for $1,101,345 in 2016, but has never been able to collect a dime.”
Bessell stresses that Lipenga’s exploitation is not anomalous; since 2003, she says, at least thirty-eight civil cases have been filed against diplomats for cruel and exploitative workplace conditions. This has pushed the issue of diplomatic immunity onto center stage.
Anjana Samant, senior staff attorney at the ACLU’s Women’s Rights Project, says an initial 2007 filing with the Inter-American Commission on Human Rights—the March 2021 petition is an extension of this case—was motivated, in part, by outrage over immunity standards.
“Many workers are brought to the United States on A-3 and G-5 visas, which were created for diplomats or high-level officials at international entities like the United Nations,” she says. “These workers are often subjected to forced labor, have no freedom to leave a home, and have been misinformed about the payment being offered.”
Advocates for domestic workers brought in from other countries say few of them have been able to pursue civil court remedies—the only legal option open to them—in part because of the barrier of diplomatic immunity.
“Bringing a civil case can be a lengthy process,” says Anna Duncan, director of affiliate engagement at the National Domestic Workers Alliance, “and former employers sometimes threaten to retaliate against the workers’ families in their home countries if they proceed, so they don’t.”
This is why the National Domestic Workers Alliance and five other community-based organizations, including Centro de los Derechos del Migrante, Inc., the Human Trafficking Legal Center, and a Filipino activist group called Damayan Migrant Workers Association, are supporting the ACLU petition.
“Domestic workers in the United States are excluded from every federal labor law,” says the ACLU’s Samant. “In the 1930s, when the Fair Labor Standards Act and other pro-worker laws were enacted, Southern Senators did not want to extend labor protections to the descendants of slaves who made up the majority of the domestic labor force at that time. Leaving these workers out was a concession to them but the exclusion has had an ongoing discriminatory impact on racial minorities and migrants, most of whom are female.”
Since the initial 2007 filing, several policy changes have been enacted to protect domestic workers. “Diplomats are now required to provide the domestic worker with a written contract outlining their hours, days off, and rate of pay. This needs to be done in a language the worker understands,” Samant says. “The U.S. State Department is also supposed to ensure that the employer has enough money on hand to pay several months’ salary. Furthermore, they have to stipulate that they have never violated the law for A-3 or G-5 visa holders.”
In addition, the State Department is now supposed to give these workers a phone number to call if job- related difficulties arise and periodically check in with them to make sure that safety standards are being met and that they are being paid, given time off, and treated with respect. But Samant charges that “the vetting process is superficial,” adding that it is “absurd to ask a potential employer to attest that they’ve never abused their workers.”
In fact, the petition to the Inter-American Commission on Human Rights lays out numerous examples of ongoing mistreatment.
Complainant Edith Mendoza of the Philippines says she routinely worked ninety hours a week for German diplomat Pit Koehler. Among her duties: caring for four children under the age of ten; cleaning six bedrooms and six bathrooms; sweeping, vacuuming, mopping, and scrubbing floors; cleaning and dusting air conditioner vents, windows, and the fireplace; washing the family’s two cars; taking care of pets; washing and folding clothes; changing bed sheets; tidying cabinets and closets; taking out the garbage; and preparing meals for the family and visitors.
Another complainant, Suzu Gurung of India, came to New York in 2005, aged seventeen, to work for an Indian diplomat. She was unable to take a single sick day during the three years and four months she worked for her, and she told the ACLU that “sometimes I would eat the leftovers off their plates because I was so hungry.”
But it is not just diplomats and consular officials who abuse domestic laborers.
Ruben Apolonio Bitas, a teacher in the Philippines, came to the United States because his salary was insufficient to support his family. Bitas told the ACLU that he borrowed the $5,000 he needed to pay a job recruiter from a family member to avoid extortionate interest, but when he arrived in Florida to begin working as a housekeeper, he discovered that a housing fee and other unexpected costs were being taken out of his check, leaving him with just $80 for his first two weeks. The job involved cleaning fourteen three-bedroom, two-bath villas a day, five days a week.
“Domestic workers generally have their rights violated,” Samant says.
That’s where organizing comes in. Apart from the petition, which the Inter-American Commission on Human Rights could take up at any time, activists have other ideas on how to strengthen domestic worker rights and improve workplace conditions.
First, says Bessell, “we want the U.S. government to increase coordination with non-governmental organizations so that domestic laborers are better connected to the community groups that can educate them about their rights. The State Department has begun to give A-3 and G-5 visa holders a hotline number to call if they need help, but giving them information about how to contact advocacy groups that speak their language would make a huge difference.”
In addition, Duncan, of the National Domestic Workers Alliance, calls on the State Department to ramp up its monitoring of domestic laborers who are in the United States on diplomatic or consular visas. She says a pilot oversight program currently in place for A-3 and G-5 visa holders in Washington, D.C., and New York City “needs to be expanded to other cities where diplomats or consular employees have brought in workers.”
Equally important, Duncan continues, is removing monitoring responsibilities from law enforcement agencies like U.S. Immigration and Customs Enforcement and the U.S. Department of Homeland Security. “Disentangling law enforcement from the resources available to victims of domestic worker abuse is essential,” she says, “because a lot of domestic workers don’t want to report their employers because they fear being deported.”
Another problem is that a worker who receives an A-3 or G-5 visa is allowed to work only for the household that requested the visa, so if they leave that job, they lose their protected status and become undocumented. And while trafficking victims can file for T (for trafficking) visas, Duncan cautions that they face deportation should their applications be denied, making this process extremely risky.
Moreover, Duncan adds, creating a better working environment for domestic workers will require an ideological shift. “Part of why trafficking and the abuse of domestic labor are so prevalent is because this work is undervalued,” she says. “Giving all domestic workers baseline benefits, including fair wages, paid time off, privacy rights, health insurance, and protections against racial and gender discrimination will change this dynamic. Domestic work is like any other work, and those who do it should be respected and valued.”
The National Domestic Workers Alliance is promoting a federal Domestic Worker Bill of Rights, which will be introduced in the 117th Congress in the coming months. Already ten states—California, Connecticut, Hawaii, Illinois, Massachusetts, Nevada, New Mexico, New York, Oregon, and Virginia—have passed bills laying out workplace entitlements.
But such measures matter only if they are accompanied by “robust enforcement and oversight,” Duncan says. “Local departments of labor need to inform employers of their obligations to the people who work in their homes and inform workers of their rights to be fairly compensated.”
The ACLU’s Samant is optimistic that the Inter-American Commission on Human Rights will take up its petition and work to bring about real change. She thinks the effort will be buoyed by the fact that the Biden Administration is “trying to restore the place of the United States in the world.”
In the meantime, Samant says, advocates will continue to “bring attention to the horrible conditions that exist for many domestic laborers. We’re also hoping that public shaming—calling out the lack of protections for domestic workers in the United States—will move us forward in winning a federal Domestic Workers Bill of Rights to protect vulnerable communities from exploitation and ensure compliance with fair labor standards for every worker.”