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APPENDIX III: LEGAL ISSUES RELEVANT TO MIGRANT DOMESTIC WORKERS
International Law
But what is the scope of servitude? The European Commission of Human Rights stated that "in addition to the obligation to provide another with certain services, the concept of servitude includes the obligation on the part of the 'serf' to live on another's property and the impossibility of changing his condition."280 Legal scholars interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) have suggested that servitude refers to "the total of the labour conditions and/or the obligation to work or to render services from which the person cannot escape and which he cannot change."281 Scholars interpreting the ICCPR have suggested that those "labor conditions" suffered must be economically abusive and create a dependent relationship between the individual and her employer.282 The Revised draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Draft Trafficking Protocol) of July 2000 proposed that servitude "shall mean the condition of a person who is unlawfully compelled or coerced by another to render any service to the same person or to others and who has no reasonable alternative but to perform the service, and shall include domestic servitude and debt bondage."283 Although no consensus exists regarding the definition of servitude, two likely elements of a definition can be extracted from the above interpretations: a dependent, economically abusive labor relationship; and no reasonable possibility of escape. As discussed at length in the preceding text, while the abusive labor conditions of the live-in migrant domestic workers described in this report do not rise to the level of slavery or the "institutions and practices similar to slavery," the conditions may, in certain instances, accurately be described as servitude. As also discussed in the text, when abusive labor situations rise to the level of servitude or fall just short of servitude, they may constitute forced labor under international law, prohibited by the ICCPR and defined by the ILO Forced Labour Convention as "all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."284 Neither "menace of any penalty" nor "voluntarily" is defined by the ILO Convention. "Menace of any penalty" was explained by the ILO Committee of Experts as a penalty that "need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges."285 The scope of such "rights or privileges" has not been defined, though the ILO Committee of Experts later identified entitlement benefits based on previous work or contributions, such as social security, as one such "right or privilege,"286 and the European Court of Human Rights identified expulsion from law school or denial of the right to practice law to a law student as another.287 "Voluntarily" has been even less explicitly defined than "menace of any penalty," though the fora in which the issue has been addressed suggest that "voluntary" consent must be free and informed and made with knowledge of the employment conditions being accepted. The European Court, interpreting the European Convention's prohibition of forced labor,288 found that if an individual "entered the profession . . . with knowledge of the practice complained of," there was no forced labor, as consent was "voluntary."289 Similarly, Option 1 of the definitional section of the Draft Trafficking Protocol of April 2000 defined forced labor as "all work or service extracted from any person under threat [or] [,] or use of force [or coercion], and for which the person does not offer himself or herself with free and informed consent."290 Likewise, in a report addressing an alleged violation of the ILO Forced Labour Convention, the ILO found that impoverished workers, "recruited on the basis of false promises" of "good wages and good working conditions," did not voluntarily consent to their employment relationships.291 The ILO Committee of Experts similarly found that mandatory overtime could not constitute forced labor if "within the limits permitted by the national legislation or collective agreements"-292 in other words, the limits of which a worker was "informed."
In its non-criminal "Definitions" section, the Trafficking Act expands the definition of involuntary servitude, defining the condition as induced by "any scheme, plan, or pattern intended to cause a person to believe that if the person did not enter into or continue in such a condition, that person or another person would suffer serious harm or physical restraint" or by "abuse or threatened abuse of the legal process."296 The Trafficking Act does not, however, amend U.S. criminal law to adopt this definition. Instead, the Trafficking Act, criminalizes forced labor, defined using language virtually identical to that used in the "Definitions" section to define involuntary servitude.297 Thus, by recognizing under its criminal section that the threat of "serious harm" can coerce performance of forced labor and under its "Definitions" section that this threat can create conditions of involuntary servitude, the Trafficking Act may have created a standard similar to the "menace of any penalty" standard required to establish forced labor under international law. Just as international law fails to define "menace of any penalty," however, the Trafficking Act fails to define "serious harm." Nonetheless, according to the legislative history: "[S]erious harm" refers to a broad array of harms, including both physical and nonphysical harm or threats of force . . . and [is] intended to be construed with respect to the individual circumstances of victims that are relevant to determining whether a particular type or certain degree of harm or coercion is sufficient to maintain or obtain a victim's labor or services, including the . . . background of the victims. 298 The legislative history further notes that the Trafficking Act is intended to cover "cases in which individuals have been trafficked into domestic service . . . not only where such victims are kept in service through overt beatings, but also where the traffickers use more subtle means designed to cause their victims to believe that serious harm will result to themselves or others if they leave."299 Because the Trafficking Act fails to amend U.S. criminal law to reflect the concept of involuntary servitude set forth in its "Definitions" section, U.S. criminal involuntary servitude law still narrowly limits the coercive means by which an employer can create conditions of servitude, a limitation not suggested by international law. Nonetheless, labor conditions rising to the level of servitude or forced labor under international law may be covered by the Trafficking Act's new prohibition of forced labor, which does not so restrict coercive employer tactics that can give rise to such abusive labor situations. International Law
The Human Rights Committee has stated that the discrimination prohibition in the ICCPR should be interpreted in accordance with CERD,303 and the CERD Committee has found that "an action has an effect contrary to the Convention"- even an apparently neutral action-when it has "an unjustifiable disparate impact upon a group" protected under the Convention.304 When is an apparently neutral action resulting in a negative disproportionate impact on women unjustifiable? The European Court of Justice (ECJ), applying the Council of the European Union (Council) equal treatment directive prohibiting "discrimination whatsoever on grounds of sex either directly or indirectly,"305 provides some guidance.306 The ECJ has repeatedly found that "[i]ndirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men" and the state is unable to show that the measure is "attributable to factors which are objectively justified and are in no way related to any discrimination based on sex."307 To meet this burden, a state must show that the measure in question reflects a necessary aim of its social policy, unrelated to any discrimination based on sex, and that the measure is capable of advancing and both suitable and necessary for achieving that aim.308 According to the ILO Committee of Experts' interpretation of ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation, discriminatory justifications include those based on the "archaic and stereotyped concepts . . . [that] are at the origin of types of discrimination based on sex."309
If the exclusions of live-in domestic workers from U.S. labor and employment legislation affect substantially more women than men but are facially neutral-not explicitly based on sex-they may still have a discriminatory impact. Applying the analysis suggested by CERD and the European Court of Justice, they have a discriminatory impact if they are implicitly based on sex-if it cannot be shown that they are objectively justified, suitable and required to achieve a necessary social policy goal that is unrelated to sex discrimination. The exclusions of live-in domestic workers from the Fair Labor Standards Act overtime protections, the National Labor Relations Act, and the Occupational Safety and Health Act use neutral language. Under the suggested analysis, they may have a discriminatory impact, however, because they predominantly affect women and the government has not shown that they are "attributable to factors which are objectively justified and are in no way related to any discrimination based on sex." 310 On the contrary, this sector of work has historically and traditionally been related to women, and regulation of this sector has often been driven by discriminatory stereotypes. The view of domestic work as private, informal, devalued female work, malleable to the needs of the family, has affected perceptions of domestic work performed for pay.311 Even though working for pay, a domestic worker is often still perceived as "part of the family," integrally connected to the employer's intimate family life and a private, family care-taker rather than a productive, value-producing member of society.312 Her labor has been distinguished in U.S. law from labor performed in the public sphere, even similar work such as that of janitors and hotel maids-sectors covered by the NLRA, the OSHA, and the FLSA overtime protections.313 Live-in domestic workers are specifically excluded from the NLRA, but the justifications provided do not withstand scrutiny. The NLRA exclusion of live-in domestic workers is explained in one sentence in the act's legislative history as reflecting a policy of covering only those "disputes which are of a certain magnitude and which affect commerce."314 If Congress wished to prevent coverage of disputes not of "a certain magnitude," however, Congress would have excluded all small employers, rather than explicitly excluding only a few labor sectors, such as live-in domestic workers.315 Similarly, the suggestion that domestic work should be excluded from the NLRA because it does not affect interstate commerce also does not hold water-approximately forty years after passage of the NLRA, in defining the scope of the Fair Labor Standards Act, Congress explicitly stated that domestic work does affect interstate commerce.316 The exclusion of live-in domestic workers from the OSHA was established "[a]s a matter of policy" by a 1972 Department of Labor regulation. The DOL provided no further explicit justification nor goal to be accomplished by this general "policy." 317 In the FLSA legislative history, Congress indicates that live-in domestic workers are excluded from overtime protections to avoid the "monitoring and enforcement costs inclusion would foist upon the federal Department of Labor."318 The record notes, "Ordinarily such an employee engages in normal private pursuits such as eating, sleeping, and entertaining, and has other periods of complete freedom. In such a case it would be difficult to determine exact hours worked."319 This justification is specious, however. Live-in domestic workers are covered by FLSA minimum wage protections, and the federal Department of Labor must therefore already calculate hours worked by live-in domestic workers to monitor and enforce the FLSA on their behalf, regardless of whether they are covered by overtime protections. The explicit, facially neutral justifications offered for the exclusions of live-in domestic workers from the overtime protections of the FLSA, the NLRA, and the OSHA, in fact, on examination, do not appear "attributable to factors which are objectively justified and in no way related to any discrimination based on sex." These exclusions appear, instead, to be implicitly sex-based-related to discriminatory perceptions of women and housework performed in the private sphere. Therefore, under the analysis suggested by CERD and the European Court of Justice, these exclusions constitute impermissible indirect sex discrimination in violation of international law. *** Human Rights Watch Human Rights Watch is dedicated to protecting the human rights of people around the world. We stand with victims and activists to bring offenders to justice, to prevent discrimination, to uphold political freedom and to protect people from inhumane conduct in wartime. We investigate and expose human rights violations and hold abusers accountable. We challenge governments and those holding power to end abusive practices and respect international human rights law. We enlist the public and the international community to support the cause of human rights for all. The staff includes Kenneth Roth, executive director; Michele Alexander, development director; Reed Brody, advocacy director; Carroll Bogert, communications director; Barbara Guglielmo, finance director; Jeri Laber special advisor; Lotte Leicht, Brussels office director; Michael McClintock, deputy program director; Patrick Minges, publications director; Maria Pignataro Nielsen, human resources director; Jemera Rone, counsel; Malcolm Smart, program director; Wilder Tayler, general counsel; and Joanna Weschler, United Nations representative. Jonathan Fanton is the chair of the board. Robert L. Bernstein is the founding chair. Web Site Address: http://www.hrw.org
277 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, September 7, 1956, Article 1. The Supplemental Slavery Convention entered into force for the United States on December 6, 1967. In summary form, the following four "institutions and practices" are proscribed by the Supplementary Convention: debt bondage; serfdom; delivery of a minor to another by her parent or guardian for exploitation of the child or her labor; and the promise, surrender, or transfer of a woman in marriage through payment of consideration to another or through inheritance. 278 Convention to Suppress the Slave Trade and Slavery, 60 L.N.T.S. 253, September 25, 1926, Article 1(1). The Slavery Convention entered into force for the United States on March 21, 1929. 279 "Report of the Temporary Slavery Commission to the Council of the League of Nations," A.17.1924.VI.B, 1924 (emphasis added). 280 Van Droogenbroeck Case, Eur. Comm'n H.R. (July 9, 1980), para. 79, cited in 44 Publications of the European Court of Human Rights (ser. B) (Strasbourg, Council of Europe, 1985), p. 30. 281 Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights, p. 334. 282 See Nowak, U.N. Covenant on Civil and Political Rights: . . . , pp. 148-49. 283 Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, "Revised draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime," A/AC.254/4/Add.3/Rev.7, July 19, 2000, Article 2 bis(c). Servitude is not defined, however, in the final version of the Trafficking Protocol. 284 ICCPR, Article 8(3); ILO Forced Labour Convention, Article 2(1). Both the ICCPR and the ILO Forced Labour Convention contain exceptions to the prohibition of forced or compulsory labor, none of which is applicable to the labor situations of live-in migrant domestic workers. 285 International Labor Conference, 1979 General Survey of the Reports relating to the Forced Labor Convention, 1930 (No. 29) and the Abolition of Forced Labor Convention, 1975, (No. 105), Report of the Committee of Experts on the Application of Conventions and Recommendations, 65th Session, Geneva, 1979, Report III, para. 21. 286 International Labor Conference, General Report of the Committee of Experts on the Application of Conventions and Recommendations, 1998, 85th Session, Geneva, 1998, Report III, paras. 106, 123. 287 Van der Mussele v. Belgium, 70 Eur. Ct. H.R. (ser. A) (1983), para. 35. The European Court of Human Rights applied the ILO standard in the case to interpret the European Convention's prohibition of forced labor. 288 See van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights, pp. 335-336. Although the European Convention has been interpreted in light of the ILO Forced Labour Convention, the European Commission of Human Rights has added the requirement that the labor be "unjust," "oppressive," or an "avoidable hardship." Van der Mussele, 70 Eur. Ct. H.R. (ser. A), para. 37. "Neither the wording nor the historical background of Art. 8 [of the ICCPR] permits the inference of [these] further definitional features that would limit the scope of this prohibition." Nowak, U.N. Covenant on Civil and Political Rights . . . , p. 150. 289 Van der Mussele, 70 Eur. Ct. H.R. (ser. A), para. 40. Unlike the Court, the European Commission on Human Rights adopted the view that prior consent deprives work or services of their involuntary character, a view which experts have found to be "too restrictive." See van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights, pp. 335-336. 290 Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, "Revised draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime," A/AC.254/4/Add.3/Rev.6, April 4, 2000, Article 2 bis, Option 1(c). Option 2 provides an alternative definition of forced labor that does not address this issue, and the final version of the Trafficking Protocol fails to define forced labor. 291 International Labor Organization, Report of the Committee set up to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution alleging non-observance by Brazil of the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), GB.264/16/7, 1995, paras. 9, 22, 25, 61 (emphasis added). 292 International Labor Conference, General Report of the Committee of Experts on the Application of Conventions and Recommendations, 1998, 85th Session, Geneva, 1998, Report III, para. 107. 293 Alzanki, 54 F.3d at 1000 (citations omitted); See also Kozminski, 487 U.S. 931. 294 Alzanki, 54 F.3d at 1001. 295 Ibid.; see also Kozminski, 487 U.S. 931. Legal coercion is defined as "the use of the law, the legal process, or legal institutions to compel service." Alzanki, 54 F.3d at 1001 n. 6. 296 Public Law 106-386, Sec. 103(5)(A), (B) (emphasis added). 297 Ibid., Sec. 112(a)(2). 298 Joint Explanatory Statement of the Committee of Conference (no date), p. 13. 299 Ibid. Examples of such "serious harm" include "causing the victim to believe that her family will face harms such as banishment, starvation, or bankruptcy in their home country." 300 ICCPR, Article 26. 301 CEDAW defines "discrimination against women" as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, December 18, 1979, Article 1. The United States has signed but not ratified CEDAW. 302 "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," General Comment 18, Non-discrimination, U.N. Doc. HRI\GEN\1\Rev.1, July 29, 1994, p. 26. (emphasis added). 303 Ibid. 304 General Recommendation 14 to Article 1(1), U.N. Doc. A/48/18, March 19, 1993, para. 2 305 Council of the European Union Directive 76/207/EEC, February 9, 1976, Article 2(1). The equal treatment directive was issued by the Council in 1976 to direct member states on the implementation of the principle of equal treatment for men and women with regards to access to employment, vocational training and promotion, and working conditions set forth in the Treaty establishing the European Economic Community. 306 The language, "directly or indirectly," is virtually identical in meaning to the Human Rights Committee language, "purpose or effect." 307 R v. Secretary of State for Employment, ex parte Seymore-Smith and another, All ER (EC) 97, Case C-167/97 (1999), para. 60; J.P. Jenkins v. Kingsgate, Ltd., ECR 911, Case 96/80 (1981); see also Enderby v. Frenchay Health Authority and Another, 1 CMLR 8, Case 127/92 (1993), para. 37. To show that women are disproportionately impacted, statistics must demonstrate that "considerably" more women than men are affected. Secretary of State for Employment, ex parte Seymore-Smith and another, All ER (EC) 97, paras. 60, 65. 308 Secretary of State for Employment, ex parte Seymore-Smith and another, All ER (EC) 97, paras. 69, 72. In this case, the ECJ also added that, in performing this analysis, the "possibility of achieving the social policy aim in question by other means" must also be considered. The ECJ has also noted that "mere generalizations concerning the capacity of a specific measure to encourage" the social policy goal are not sufficient to show "that the aim of the disputed rule is unrelated to any discrimination based on sex nor to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim." 309 International Labor Conference, Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 75th Session, Geneva, 1988, Report III (Part 4B), para. 38. 310 Live-in domestic workers are and historically have been predominantly female. According to the U.S. Bureau of Labor Statistics, in 1999, there were 831,000 private household workers, including cooks, butlers, child care providers, and live-in and live-out domestic workers; 791,000 of these workers, approximately 95 percent, were women. United States Department of Labor Bureau of Labor Statistics, Table 1: Employed and experienced unemployed persons by detailed occupation, sex, race, and Hispanic origin, Annual Average 1999 (unpublished 2000) (on file with Human Rights Watch). See also Peggie R. Smith, "Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform," 48 American University Law Review 851 (April 1999); Melanie Ryan, "Swept Under the Carpet: Lack of Legal Protections for Household Workers-A Call for Justice," 20 Women's Rights Law Reporter 159 (Spring-Summer 1999); Jennifer Bickham Méndez, "Of mops and maids: contradictions and continuities in bureaucratized domestic work," 45 Social Problems 114 (February 1, 1998). 311 Domestic work, traditionally performed by a wife or a mother without pay, has also generally not been assigned a monetary value and not been recognized as productive labor under U.S. laws, including marital contract, social security, tax, and welfare reform laws. See Katharine Silbaugh, "Turning Labor into Love: Housework and the Law," 91 Northwestern University Law Review 1 (Fall 1996), pp. 27-67. 312 Smith, "Regulating Paid Household Work . . . ," p. 899. 313 For example, in 1939, the Minnesota Supreme Court emphasized that the worksite of a domestic worker-the private home-should be treated differently from a public workplace because the private home is "a sacred place for people to go and be quiet and at rest and not be bothered with the turmoil of industry," "a sanctuary of the individual," and "the abiding place of affections." State v. Cooper, 285 N.W. 903, 905 (Minn. 1939). 314 Senate Report No. 1184, 79th Cong. 2d Sess. (May 10, 1934). 315 The only other workers employed by small employers explicitly listed in the legislative history are agricultural workers and individuals employed by their parents or spouses. Furthermore, when Congress drafted the final version of the NLRA, it chose not to exclude from coverage all employers with under ten workers-small employers-as suggested during the 1934 legislative debate of the NLRA. 316 29 U.S.C. _ 202(a); 29 C.F.R. _ 552.99. The FLSA implementing regulations note that "[i]n the legislative history it was pointed out that employees in domestic service employment handle goods such as soaps, mops, detergents, and vacuum cleaners that have moved in or were produced for interstate commerce and also that they free members of the household to themselves engage in activities in interstate commerce." 29 C.F.R. _ 552.99. 317 29 C.F.R. _ 1975.6. Concern regarding coverage of small employers did not lie behind the exclusion, however, as OSHA covers "any employer employing one or more employees." 29 C.F.R. _ 1975.4(a). 318 Lagrimas v. Gossel, 1 Wage and Hour Cases 2d (BNA) 385 (D. Md. 1993). 319 House Report. No. 93-913, 93rd Cong. 2d Sess. (March 15, 1974); see also 29 C.F.R. _ 785.23.
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