Housekeepers and nannies have no protection from sexual harassment under federal law

Etelbina Hauser has lost count of all the times her bosses have groped her, exposed themselves, or asked for sex. A common scenario plays out like this: She would be alone, cleaning a home, when the husband of the household would call her into his bedroom. He would be naked (or half-naked) and would suggest a sexual act or a massage. Hauser would then run out of the house and start looking for another job.

The cycle of harassment has followed Hauser to more than two dozen jobs in three states since she moved to the United States from Honduras in 1999. During that time, she has mostly worked as a housecleaner for families, though she has also taken jobs as a home health care aide. She said she had to learn to hide the humiliation and shame of the repeated harassment.

“Hunger will make you put up with a lot of things,” said Hauser, a 56-year-old mother of seven. “You realize that you have to find a way to survive, even with your dignity crushed.”

Hauser said she didn’t know what her rights were, or whom to report the harassment to. But even if she had tried to speak up, she would have discovered that she couldn’t do much to change the situation. She would have realized that she is one of millions of workers in the US who are not protected from sexual harassment and discrimination under federal law.

Hauser’s bosses — and the bosses of millions of domestic workers and farmworkers — fall into a category known as the “small firm exemption” under Title VII of the Civil Rights Act of 1964, which is the federal law that prohibits employers from discriminating against workers based on gender, race, religion, or disability. Sexual harassment at work is a form of gender discrimination. But employers with fewer than 15 workers are exempt from the act — a provision that was added to ease the burden of government regulation on small business. The effect is that it allows small employers to sexually harass and discriminate against their workers under federal law.

This is not a tiny group. More than 12 million US workers — about 10 percent of the workforce — worked for firms with fewer than 10 employees in 2017, according to data from the Department of Labor (the data does not have a category for firms with fewer than 15 employees). Millions of them are housekeepers, nannies, home health care aides, and other occupations made up mostly of women of color. They are also farmworkers who harvest crops at small family farms.

On Tuesday, hundreds of women who work these jobs went to Capitol Hill to ask members of Congress to repeal the exemption in the law. Hauser flew to Washington, DC, from her home in Seattle to join the campaign, organized by the National Domestic Workers Alliance and the National Farmworkers Women’s Alliance.

“They need to know that there are millions of women suffering in silence,” said Hauser, who met with lawmakers from Washington, where she lives, including Sen. Maria Cantwell (D) and Rep. Pramila Jayapal (D). “Most of us have been silent about the sexual harassment and the threats, living alone with our pain.”

Women from across the country rallied during Sexual Assault Awareness Month, chanting and carrying signs on the US Capitol lawn. Top right: Rep. Pramila Jayapal (D-WA) and #TimesUp activist Mónica Ramírez were among the list of speakers at the rally.

Housecleaners and nannies have fewer rights than other workers

The #MeToo movement has shown just how pervasive sexual harassment is at work. Women’s stories about powerful men asking them for sex at work or exposing themselves in the office have led to swift repercussions for well-known names in the entertainment and media industries. But those women, unlike Hauser, have some way to pursue legal action against their bosses and co-workers under federal law.

Here’s how that plays out:

A woman working in a corporate office believes she is being harassed by a male colleague and wants it to stop. If she doesn’t want to confront the man harassing her, she can report it to another supervisor, or the human resources department, and hope they will intervene.

A housekeeper or nanny who is directly hired by a family has no one to complain to if she is harassed, and likely has no witnesses to the behavior. Sexual harassment is illegal, but it’s a civil violation, not a criminal one, so police can’t arrest someone unless the harassment involves assault or rape. The housekeeper could complain to the man’s wife or partner, but Hauser said that wives are rarely sympathetic and are more likely to retaliate.

A woman who works at a large company can also go to the closest Equal Employment Opportunity Commission (EEOC) office to file a discrimination complaint against her employer. The process is incredibly long and places a lot of strict deadlines on the time frame to file a complaint. If she meets those deadlines, EEOC staff will try to mediate a solution between her and her employer, which can include some sort of compensation or an employer’s agreement to change the work environment. If the woman doesn’t want mediation, the EEOC will investigate her claim, contacting co-workers and gathering evidence.

If the agency finds enough evidence of harassment, it will often try to reach a settlement with the employer; if that fails, the EEOC can sue them in federal court, or allow the complainant to sue in federal court. (To be clear, the woman can only sue if the company where she works didn’t require her to sign an arbitration agreement when she was hired, which is a common practice. In that case, she would have to resolve her dispute outside the court system, through a private process with arbitrators hired by her employer.)

If a woman overcomes those hurdles and is given the EEOC’s permission to sue, she can only seek damages in the range of $50,000 to $500,000, depending on the size of the company she works for. So if a jury awards a woman $9 million in damages, the most she can get is $500,000 (less if she works at a company with fewer than 500 employees). The strict monetary caps in discrimination cases do not exist in other areas of federal employment law.

This path is unavailable to someone like Hauser.

If she went to an EEOC office to file a complaint, the agency would tell her that she can’t — that she is not protected from sexual harassment under federal law. If she lives in one of the eight states that have extended discrimination protections to domestic workers — Oregon, California, Connecticut, Illinois, New York, Massachusetts, Hawaii, and Nevada — she can file a claim with the state agency that enforces civil rights laws, or she can go ahead and sue for discrimination in state court (the process varies by state). Hauser lives in Washington, so she doesn’t have protection under state law either, as most state civil rights laws have a similar exemption for small businesses.

After hearing women come forward with their stories of sexual harassment in recent months, Hauser said she got the courage to tell her story too. She wanted members of Congress to understand that she is not protected from sexual harassment, and neither are millions of other workers. So she and a group of more than 200 domestic workers and farmworkers went to Capitol Hill on Tuesday, where they visited the offices of 60 lawmakers, including Sen. Elizabeth Warren (D-MA).

After the rally, workers and activists marched to the Hart Senate building. Senators Kamala Harris (D-CA) and Elizabeth Warren (D-MA) were among the lawmakers they met to share their stories and demands for federal protection.

Mónica Ramírez, president of the National Farmworkers Women’s Alliance, said she had a productive meeting with Sen. Kamala Harris (D-CA) and other lawmakers. The first step, she said, is just making them aware of the exemption and how it affects millions of workers.

“We talked to them about why that needs to change,” said Ramírez. “Isolated workers are more vulnerable to sexual harassment and don’t have the same access to resources, information. Farmworkers usually live in rural communities, and it makes it easier for people to prey on them.”

Congress chose to protect small businesses, not domestic workers

Congress has a long history of exempting small businesses from certain labor laws, including minimum wage and overtime rules under the Fair Labor Standards Act. That was no different during the civil rights era.

Southern senators tried hard to kill the Civil Rights Act of 1964, which explicitly made it illegal for companies to discriminate against workers. In an effort to make a deal with them, Sen. Norris Cotton, a New Hampshire Republican, proposed an amendment to exclude businesses with fewer than 100 employees. The amendment was voted down, but the law passed with an exclusion for businesses with fewer than 25 workers (it was lowered to 15 in the 1970s).

The most common rationale for exempting small businesses was to shield them from the costly, time-consuming burden of complying with government regulation. Critics at the time also said that including all employers would overburden the EEOC, the new agency created to enforce workplace discrimination protections.

Richard Carlson, a law professor at South Texas College who studied the history of the exemption, said it essentially created a “refuge” for discrimination:

It may seem preposterous that the exemption was designed to permit small firms the very evil the law was designed to eradicate. Even supporters of the exemption in 1964 stopped short of an explicit defense of discrimination by small firms. Nevertheless, the effect of the exemption is to permit small firms to discriminate, unless they are subject to state or local anti-discrimination laws. Thus, for better or worse, the small firm exemption serves as a refuge for the incurably color-conscious.

Since the amendment was included, there have been few efforts to scale back exemptions. In 2015, President Obama’s Department of Labor passed a rule giving home health care workers minimum wage and overtime protections they were previously denied under the Fair Labor Standards Act.

Angela Cornell, an employment law professor at Cornell University, says removing the small firm exemption from the Civil Rights Act is an important step if Congress is serious about protecting all workers from sexual harassment. And she doesn’t buy the argument that compliance is such a burden for small businesses.

“What is the burden? The burden not to sexually harass a worker or a woman who is working in your own home?” said Cornell. “It’s not like asking them to file quarterly reports or anything.”

Whether members of Congress would actually get enough votes to remove the amendment is another story. In 2015, Republicans tried to revoke the minimum wage protections given to home health care aides (it never went up for a vote). And the Trump administration has been scaling back labor regulations, not expanding them.

Teresa Arredondo, a farmworker from California who was part of the group that traveled to Capitol Hill, was quite cynical about the chances of something happening in Congress.

“They don’t care about us,” said Arredondo, who said she has been pressured to have sex with her supervisors in nearly every crop harvesting job she has worked. “But that doesn’t mean we are going to keep quiet.”

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