People throughout India continue to be outraged at last month’s claims by a 39-year-old Indian diplomat that she was arrested and strip-searched by U.S. law enforcement. The arrest occurred in response to allegations that the diplomat, Devyani Khobragade, obtained a fraudulent visa for her domestic worker in addition to refusing to pay the worker a minimum wage and forcing her to work longer than their agreed upon hours.
The arrest and alleged strip-search is fostering rancor between the governments of India and the United States. At issue is a divide between the nations about how domestic workers ought to be treated. Whether the alleged strip search was necessary in this case is a big question. But in general, U.S. law enforcement’s move toward taking allegations of worker abuse seriously is a positive reflection of how policy around domestic workers’ rights is evolving in the United States. Such enforcement can help improve working conditions for workers while they live in the United States and may eventually begin to improve how domestic workers are treated abroad.
While the story of what actually happened to Khobragade during her arrest as well as her treatment of her housekeeper, Sangeeta Richard, is still unfolding, we do know that Richard alleges she earned $3.31 per hour while working for Khobragade—far less than the U.S. federal minimum wage of $7.25 per hour to which she is legally entitled while working in the country. Some accounts also state Richard was forced to work longer than the hours she and Khobragade had agreed upon. Such claims by the workers of foreign diplomats are not uncommon. In 2008, the Government Accountability Office (GAO) issued a report analyzing allegations of domestic worker abuse, between 2000 and 2008, and found 42 cases of abuse allegations by workers who served diplomats.
The GAO report expressed that many more workers who faced abusive situations were probably not coming forward, out of fear of losing their only source of income, being sent back to home countries to even more dangerous situations, or worse.
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According to Ivy Suriyopas, director of the Anti-Trafficking Initiative with the Asian American Legal Defense and Education Fund (AALDEF), New York and Washington, D.C., are “hotbeds for diplomatic and consular activity.” She told Rewire, “We have identified a number of domestic workers trafficked into consular households. Manhattan is a stratified city but there is lots of wealth too, there are a number of families in need of domestic workers but who do not want to pay or follow basic standards.” Suriyopas has been an anti-trafficking advocate in New York City for nearly a decade.
Globally, the vulnerability of a domestic worker who lives with—and at the whims of—her affluent employer cannot be underestimated. Often times the money the worker earns supports her poor family in her home country. In some instances, other members of the worker’s own family also works for her affluent employer. The importance of maintaining the relationship with an employer thus extends far beyond the worker’s individual circumstance. Such a situation could preclude a worker from standing up for their rights—which is why the legal system and its advocates need to be a source of support.
Prosecution of diplomats who abuse their workers is particularly necessary, not only to hopefully improve conditions for a worker but because it may help jar an entire legal regime that has for decades enabled the protection of diplomats who abuse their workers. Diplomatic immunity, established by the Vienna Convention on Diplomatic Relations passed in 1969, protects foreign diplomats from being prosecuted under U.S. laws while they are serving as diplomats.
Some courts have found limitations to diplomatic immunity in cases of worker abuse, holding that if a diplomat is no longer serving in her official capacity as a diplomat, she is covered only by a “residual immunity” provision that does not protect her from prosecution.
But by and large, diplomatic immunity is a significant obstacle for a worker who wishes to obtain legal relief. The Indian government now seeks to transfer Khobragade to a position with the United Nations, a transfer that would grant her full diplomatic immunity.
According to Suriyopas, “the Indian government’s efforts to change the officer’s position so she can obtain absolute diplomatic immunity is problematic because it is trying to protect Khobragade rather than allow the allegations be disputed in open court.”
In her 2010 essay, “Does Immunity Mean Impunity? The Legal and Political Battle of Household Workers Against Trafficking and Exploitation by their Foreign Diplomat Employers,” legal scholar Jennifer Hoover Kappus points out:
The U.S. can promote both the image of a society governed by the rule of law and the unalienable right of freedom for all by adopting a policy of declaring a diplomat persona non grata for human-trafficking offenses, similar to its policy regarding firearms offenses. International precedent for taking bolder action in declaring a diplomat persona non grata for drug trafficking offenses is already established by the actions by the United Kingdom, Denmark, Sweden, Finland, and Norway, so it is not a far stretch to adopt a similar policy for human trafficking.
To be sure, it is not at all clear that Sangeeta Richard’s case would rise to the level of human trafficking, a much more serious offense requiring proof that the defendant “materially gained” from the labor performed. This is not something that denying wages or requiring longer hours necessarily speaks to. However, the point that Kappus makes is that U.S. policy can limit diplomatic immunity in cases of worker abuse—as evidenced by the fact that immunity is not a bar from prosecution from other offenses like firearms offenses.
How is it that a firearms offense is sufficient to pierce the shield of diplomatic immunity, but an abuse of other humans does not rise to the same level of scrutiny?
When the story of Richard’s abuse erupted, domestic worker advocates in the United States immediately rallied around her. Without repercussions to the diplomat, worker treatment is not likely to improve. In addition to such law enforcement, then, continued work by U.S. advocates to support workers who face abuse is critical. It is still rare for workers to receive monetary damages for abuse they suffer, but groups like Adhikaar in New York and other members of the National Domestic Workers Alliance have worked hard to secure their rights.
There is some concern about how increased prosecution of diplomats could affect relationships with key foreign countries. As the New York Times pointed out, “The continued hard feelings suggest that the dispute could have a long-term impact on a relationship both sides say is crucial.”
But domestic worker advocates are nonplussed. “While it’s true that prosecuting diplomats when they violate the law can cause tensions, I think there’s a point where as an international community we have to hold ourselves and our key allies to higher standards and find the honor in that,” Tiffany Williams, advocacy director of the Break the Chain Campaign at the Institute for Policy Studies, told Rewire. “Maybe that causes fallout, I am not a Diplomat or the president, but as an organizer my hope is that it could also spur a mutual commitment.”
Williams also notes that, beyond U.S. law, the International Labour Organization’s Domestic Workers Convention, which was enacted in 2013, sets an international standard for how workers ought to be treated.
In truth, there is likely a middle ground, with regard to policy, that urges an easing of immunity in cases of worker abuse, while also maintaining protections for diplomats in their official roles. But the domestic workers’ movement in the United States is changing how seriously the United States takes instances of worker abuse—and it is this shift in values that can, over time, change practices by employers of domestic workers in the United States and globally.