McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 37
Montreal
1992
No.3
Foreign Domestic Worker:
Surrogate Housewife or Mail Order Servant?
Audrey Macklin*
Canadians often associate indentured labour with a remote
past, and a racially atratified labour market with the legacy of
alavery and colonizationin other ountries. The existence of a
Canadian immigration scheme known as the Foreign Domestic
Movement (FDM) program challenges this naive complacency
and raises the possibility that these phenomena are neither pass6
nor confined beyond Canada’s borders.
The FDM program is designed to import domestic workers
who will provide chldcae and other services on a live-in basis.
Virtually all live-in domestic workers are women, and the major-
ity of these are Filipina. Foreign domestic workers enter on tem-
orary workpertits but are permitted to apply for permanent res-
tdenc in Canada after 2 years as live-in domestic workers. The
author examines the provisions of the FDM scheme and its role
in the social construction of the foreign domestic worker. The
author employs the concept of the “inside/outsider” to describe
the phenomenon of partial irclusion and exclusion experienced by
foreign domestic workers. Four themes inform the article. First,
that the assigned character of the foreign domestic worker is
forged through the power relations of North/South nations,
master/servant, man/woman, white/non-white, citizen/alien. Sec-
ond, that the state reproduces, at the level of immigration law and
policy, the invisibility of the domestic worker in the home/
workplace. Third, that the FDM program may actually operate to
facilitate exploitation of domestic workers in the workplac.
Fourth, that the case of foreign domestic workers presents both a
site for feminist inquiry and an opportunity to contemplate the
competing interests of women whose race, class or citizenship
shape the means available for mediating the effect of patriarchy
on their lives.
After this article was submitted for publication, the FDM pro-
gram was replaced by the Uve-in Caregiver program. In a post-
script, the author describes the new scheme and offers preliminary
observatious about the changes in light of her critique of the FDM
program.
Les Canadiens associent I’exploitation sociale avec on pass4
lointain, et ]a stratification raciale do march6 du travail avec I’es-
clavagisme et la colonisation qui ont surtout marqud I’histoire
d’autres pays que le notre. Mais le progran= e d’embauchage des
travailleurs domestiques 6trangers du ministhre de tlmmigration
difie cette complaisance naive et soul6ve au contraie la possibi-
lit que ces phinombnes ne soient ni do pass6, ni confinis
outre-frontiares.
Le programme du ministhre de I’lmmigration vise A attirer sur
le march6 canadien des travaileurs domestiques trnger, afin de
satisfaire ]a demande pour la garde d’enfants h domicile et l’ac-
complissement d’autres taches minagires. Pratiquement toutes
ces aides domestiques sent des femmes, et la majorit d’entre
etles viennent des Philippines. Elies sont admises sur la base de
permis de travail temporaires et on leur permet de demander le
statut de rdsidentes permanentes ne fois qu’elles ont accompli
deux annies de travail domestique, pendant lesquelles oes
doivent habiter chez leors employeurs. L’auteure examine les exi-
groies do programme et le r6le qu’il attribue a la travailleuse
domestique en tant que femme et en tant qu’employ6e. L’auteure
invoque I’antinomie a inside/outsider a pour ddcrire les senti-
ments imultands d’inelusion et d’exclusion qu’6prouvent les tra-
vailleuses domestiques en relation h leur citoyennet6, ler race,
leur sexe et leur classe. Quatre principaux th6mes se ddtachent de
cet article: premiarement, le rile attribu6 a la travailleuse domes-
tique est faanun6 par les relations de pouvoir Nord/Sud, maitre/
serviteur, homme/femme, blanc/non-blanc, citoyen/6tranger.
Deuxiamement, lFEtat canadien, par le biais do droit et des poli-
tiques en matiare d’immigration, perptue et renforce l’invisibilit6
et le statut subordonn6 de ]a travaileuse domestique dans son
milieu de travail, qui est en mime temps son domicile. Troisi me-
ment, le programme sert potentiellement k faciliter l’exploitation
des travailleuses domestiques dans leur milieu de travail. Enfin, le
contexte do travail domestique offre un champs fertile d’analyse
fdministe et ]a possibilit6 d’aborder de manre critique les ten-
sions qut naissent entre les femmes de divers milieux cherchant a
raitriser les effets qu’ont les structures patriarcales dans leurs
vies.
Depuis Ia soumission de ce texte pour publication, le pro-
gramme d’embauchage de travailleurs domestiques trangers a t6
remplac6 par le programme concernant les aides familiales
rdsidentes. Dans un post-scriptum, l’auteure d6crit le nouveau
programme a a lumidre de son analyse da rdgime prdcddent, et
fourit quelques observations prdliminaires au sujet des change-
ments apportds par ce nouveau programme.
“Assistant Professor, Dalhousie Law School. The author wishes to thank Peter Schuck, Michael
Trebilcock, Mary-Ellen Turpel and Leon Trakman, who read earlier drafts of this paper and offered
constructive criticism. Special thanks to Barbara Stewart, Canada Employment and Immigration
Commission (Policy Branch), whose assistance and insights were invaluable. All errors, omissions
and shortcomings are the author’s responsibility.
McGill Law Journal 1992
Revue de droit de McGill
To be cited as: (1992) 37 McGill L.J. 681
Mode de citation: (1992) 37 R.D. McGill 681
McGILL LAW JOURNAL
[Vol. 37
Prologue: Variations on a Theme
Synopsis
The Setting
I.
H. The History of Migration of Foreign Domestic Workers to Canada
A. Confederation -Pre-World War H
B. Post-World War 11-1981
III. The Contemporary Context
A. The Women Who Come
B. Foreign Domestic Movement
IV. Home/Work: The Illusory Line
A. Outside the Nucleus/Inside the Cell
B. The Employee Who is Not One
C. Changing Employers
V.
The Price of Membership
VI. Strategies of Empowerment
A. Litigation Strategy
VII. The Ties That Divide
VIII. Postscript
The notion of boundaries is thus contradictory. One can be within but at a subor-
dinate level, to the point where those within feel as if they were outside.1
Prologue: Variations on a Theme
“Not again, “Mary thinks to herself But that’s not what she said. No, when
the senior partner came into her office and casually asked her to stay late to
help out on the closing, she said “OK.” She might have even managed a smile.
Not that she agreed with any enthusiasm, mind you. Mary is tired, she wants to
get out of the office, go home, spend time with Dan and the kids. But that’s not
how you make partner in the firm. Mary already knows about the dreaded
“mommy track” and she knows what it means: being left out, left behind, not
really being a part of the firm. Oh sure, they let you in the door, give you an
office, then shut you out of the “corridors of power.” The rules to this boys’
game are the same as they ever were. It’s not as if you can’t be a successfid
‘Rosaura Sgnchez, “Ethnicity, Ideology and Academia” (1987) 15 Americas Rev. 80 at 82.
1992]
FOREIGN DOMESTIC WORKERS
downtown lawyer and have a family, you just have to make sure you have a wife
at home if you want to make it work! No point kicking up a fuss though –
then
they will really freeze you out. So here she goes, another late night, another deal
that just can’t wait. “I sure hope they remember this when partnership time rolls
around next year,” she fumes. “Damn!” -Mary has just remembered that Dan
was going to be entertaining clients (again) that night, and the nanny is only
supposed to work until 6:30p.m. Of course, since she and Dan have a “live-in, ”
lives downstairs. “I’ll just give
it’s not as if the nanny is going anywhere -she
Delia a call and see if she wouldn’t mind staying with Emma and Joey for a few
extra hours. It sure makes life easier to have someone who lives with us,” she
thinks to herself. Mary picks up the phone…
This is a story about exclusion, about being an outsider on the inside, about
how they tell you that you’re one of them but you’re not, you can’t be, and
you’re not even sure you want to be. It could be a story about Mary, but it’s not.
… Delia hangs up the phone and sighs. She recalls telling her employers
that Tuesday nights she goes to her computer course. They must have forgotten.
She hates missing classes -she wants to get a good grade so she can hand her
diploma to the man at Immigration and say, “See, I did what you told me to do.
I learned to do something else besides being a domestic. Now am I good enough
to stay?” She wishes she could have said “no” just now on the phone, but this
is her second employer this year, and her friends have told her that it doesn’t
look good on your record to have too many employers when you apply to immi-
grate -they’ll
think you are lazy, or a troublemaker. So it’s not worth making
a fuss over. Better to stay on good terms with Dan and Mary and not risk antag-
onizing them. They seem nice enough anyway. “Oh well,” Delia thinks to her-
self “maybe these ones will at least pay me the overtime for all the extra hours
like the last ones. “Now Emma is tugging at her sleeve, and
I’m working -not
Joey is waking up from his nap. Delia bends down to see what Emma wants…
This is a story about Delia, the woman Mary and Dan employ.
I. The Setting
Delia is a foreign domestic worker. Some refer to her as a “domestic,” oth-
ers call her the “live-in,” and almost everyone calls her a girl, even though she
is well past thirty.’ I will use the term “domestic worker.” She came to Canada
2Throughout this article I construct a narrative involving Delia to illustrate the operation of the
Foreign Domestic Movement (FDM) program. I am neither Filipina nor a domestic worker, and
I do not wish to convey the misleading impression that through Delia, I speak with the authority
of experience. Rather, I use Delia to personalize the phenomenon of being an immigration com-
modity. The thoughts, feelings and experiences I impute to Delia represent a composite drawn from
my research, and I cite my sources (anecdotal and statistical) where apposite. To avoid giving the
appearance that all women of colour are constructed identically, I identify the region of origin of
particular domestic workers (Filipino, Caribbean/West Indian, British etc.) wherever possible.
REVUE DE DROIT DE McGILL
[Vol. 37
from the Philippines via Singapore on the FDM program. The FDM program is
the latest in a series of schemes designed to attract live-in domestic workers to
Canada. Because Canadian citizens have virtually always refused to do this
work, the labour is imported from abroad. Approximately 97% of domestic
workers are women.3
The need for childcare in Canada accelerates every year as more women
enter the workforce. In 1988, 57% of Canadian women with children under 16
worked full or part-time.’ In 1989, there were 240 000 licensed daycare spaces
for 630 000 children of working parents.’ Since women were traditionally des-
ignated as primary caretakers of children, the availability of affordable and
practical childcare arrangements is clearly a critical variable in women’s labour
force activity.
The dearth of licensed daycare spaces suggests that most parents utilize
alternative arrangements, including extended family members, neighbours,
babysitters, or unlicensed daycare operations. At least 22 000 middle and upper-
class Canadian families hire live-in domestic workers.’ Canadian parents typi-
cally choose this option to facilitate the pursuit of professional careers without
sacrificing the ideal of the nuclear family. Though more women are penetrating
formerly male professional bastions, most still do so on male terms. In other
words, the workplace is still structured around the anachronistic model of the
male breadwinner with the stay-at-home wife. In particular, live-out daycare is
not considered feasible by dual career couples or single parents who must work
long or erratic hours.7
Under the FDM scheme, the government of Canada acts as a broker for
potential employers in Canada and domestic worker applicants abroad. The
Canada Employment and Immigration Commission (Employment and Immi-
gration) issues Delia a special employment authorization restricting her to
domestic work. The terms of the FDM program also require her to live at her
employer’s residence because, according to the government, there is no scarcity
of Canadian live-out domestic workers.8
I am, of course, keenly aware of the contradictions inherent in my project. The narrative/
storytelling technique is increasingly prominent in legal scholarship, both as an analytical subject
and a vehicle of exposition. I employ narrative here in the latter sense. For recent, randomly
selected examples of both approaches to “narrative,” see “Pedagogy of Narrative: A Symposium”
(1990) 40 J. Legal Educ. 1; Paulette Caldwell, “A Hair Piece: Perspectives on the Intersection of
Race and Gender” [1991] Duke L.J. 365; Anthony Alfieri, “Reconstructing Poverty Law Practice:
Learning Lessons of Client Narrative” (1991) 100 Yale L.J. 2107.
3Canada Employment and Immigration Commission (Policy Branch), Foreign Domestic Work-
ers- Preliminary Statistical Highlight Report (Ottawa: Canada Employment and Immigration
Commission, January 1991) [unpublished].
4Lindsay Scotton, “The Day Care Dilemma” Toronto Star (24 November 1989) Cl at C9.
5Dana Flavelle, “The Dilemma Over Domestic Workers” Toronto Star (1 February 1990) C5.
6Deborah Wilson, “Immigration Review Worries Domestic Workers” The Globe and Mail (6
January 1990) A5. The figure applied to 1988. The number of entrants to the FDM program has
increased 25% since 1988, leading one to speculate that the number of families employing live-in
domestic workers continues to rise.
7Supra, note 5.
sThe government bases this claim on the numbers of unemployed women who list childcare or
domestic work as an occupational skill when they register for unemployment insurance payments.
1992]
FOREIGN DOMESTIC WORKERS
If Delia completes two years as a live-in domestic worker, she may then
apply for landed immigrant status from within Canada and be assessed accord-
ing to her capacity to establish and become self-sufficient in Canada. The ability
to apply for landed status from within Canada is a clear advantage, since all
other prospective immigrants (except refugee candidates) must apply and be
assessed from outside the country under a strict point system. At the same time,
Delia has no guarantee that her application will be accepted. In essence, the
FDM program offers a trade-off of two years of semi-indentured labour in
exchange for a shot at the prize of landed immigrant status.
This may appear to be a good deal for migrant women, especially in com-
parison to the plight of undocumented Mexican and Central American women
employed in similar jobs in the United States who live in perpetual fear of being
discovered and deported.9 One objective of this article is to reveal how, in cer-
tain respects, the legal regime governing foreign domestic workers in Canada
operates less to eliminate their structural vulnerability than to simply relocate it
within the boundaries of the law.1″
My thesis is that the law constructs the foreign domestic worker as an
“inside/outsider.” The term “inside/outsider” is borrowed from another context,
where it was defined as someone subject to the state’s power but excluded from
participation in the political processes: “Such persons are inside from the per-
spective of who can be bound but outside from the perspective of who can par-
ticipate.”” I wish to modify and extend that definition of an inside/outsider
beyond the narrow ambit of the franchise to encompass a variety of situations
where a person is simultaneously part and not part of a social structure in which
she finds herself. In these settings, being an outsider means not only exclusion
from participation, but also denial of the protections normally accorded to in-
siders. 2
Deploying this thematic construct as a vehicle, Iwill contend that the idi-
osyncratic immigration status of a foreign domestic worker such as Delia puts
Interview with Barbara Stewart, Canada Employment and Immigration Commission (Policy
Branch) (20 August 1990) Ottawa.
9See generally “INS Arresting Nannies Who Seek Legal Status” Los Angeles Times (21 March
1991) A22; Suzanne Goldberg, “In Pursuit of Workplace Rights: Household Workers and a Con-
flict of Laws” (1990) 3 Yale J. L. & Fern. 63.
10Ironically, undocumented workers in the United States actually fare better in some ways than
foreign domestic workers in Canada, at least on paper. For example, undocumented workers are
“employees” under the National Labour Relations Act and the Fair Labor Standards Act which
means, inter alia, that the illegal domestic workers can join unions and are entitled to minimum
wage guarantees. See Sure-Tan v. NLRB, 467 U.S. 883 (1984), 104 S. Ct. 2803 (union participa-
tion); Patel v. Quality Inn South, 846 F.2d. 700 (11th Cir. 1988) (payment of back wages). Compare
this to the situation in various provinces infra, note 94ff and accompanying text.
“Lea Brilmayer, “Carolene, Conflicts, and the Fate of the ‘Inside-Outsider”‘ (1986) 134 U. Pa.
L. Rev. 1291 at 1316.
121t may seem simpler to describe domestic workers using the more familiar terms of exclusion
or marginalization current in contemporary feminist and critical race discourse. I employ the more
obscure phrase “inside/outsider” as a linguistic reminder of the essentially paradoxical position of
foreign domestic workers. Michael Walzer develops a similar theme in his discussion of guest
workers in Spheres of Justice (New York: Basic Books, 1983) at 56-63.
McGILL LAW JOURNAL
[Vol. 37
her inside Canada, yet outside the legal categories currently applied to non-
citizens. As a live-in caregiver, Delia is inside the household but outside the
family. As an employee, she partakes of the market yet is excluded from many
of the protections offered to market actors. Finally, as a migrant woman of col-
our, Delia, like most foreign domestic workers, confronts what Vicki Ruiz terms
the “quadruple whammy” of class, gender, ethnicity and citizenship. 3 These
multiple disadvantages place foreign domestic workers both within and without
monist theories 4 that implicitly grant primacy to a single source of oppression.
By identifying a domestic worker as an inside/outsider, I hope to empha-
size that the very spheres from which the foreign domestic worker is excluded
also need her in order to function in their present form, both materially and
ideologically. I suggest that the dominant society suppresses awareness of its
dependence on foreign domestic workers by rendering domestic workers
socially invisible within the household and legally invisible within immigration
and employment protection legislation.
I explore the theme of domestic workers as inside/outsiders as follows. In
Part II, I offer a brief historical account of the historic dependence upon migra-
tion as the solution to the “servant problem” in Canada. In Part III, I bring the
inquiry up to the present day, using Delia’s journey to Canada to explain how
and why women come to Canada under the FDM program. Against this back-
ground, Part IV chronicles Delia’s experience as a domestic worker in a Cana-
dian home. Part V critically evaluates the criteria for obtaining landed status.
Part VI considers possible litigation strategies for empowering domestic work-
ers. I conclude in Part VII with some thoughts about the problematic nature of
Mary and Delia’s relationship from a feminist perspective.
A final note concerning method: Many feminist legal scholars have written
eloquently and cogently about sexism in the legal profession and in the academy
and have, I believe, furnished insights from time to time about sex inequality
that transcend the narrow context of lawyers and law professors. Here I have
chosen to focus on the situation of women who are neither middle class, nor
professional, nor predominantly white, in order to expose a practice of subordi-
nation that is at once highly specific in form and (in certain respects) quite unex-
ceptional in nature. By this I mean that the experiences of foreign domestic
workers cannot be comprehended apart from factors of citizenship, race/
ethnicity, class, etc. At the same time, recurring themes of sex-role stereotyping,
13″By the Day or Week: Mexicana Domestic Workers in El Paso” in Carol Gronemen & Mary
Norton, eds, “To Toil Livelong Day”: America’s Women at Work, 1780-1980 (Ithaca, N.Y: Cornell
U. Press, 1987) 269 at 282; See also Agnes Calliste, “Canada’s Immigration Policy and Domestics
from the Caribbean: The Second Domestic Scheme” in Elizabeth Comack & Stephen Brickey, eds,
The Social Basis of Law, 2d ed. (Halifax: Garamond Press, 1991) 95 at 99. Another scholar uses
the term “multiple jeopardy” to convey the concept (Deborah K. King, “Multiple Jeopardy, Mul-
tiple Consciousness: The Context of a Black Feminist Ideology” in Michelle Malson et al., eds,
Feminist Theory in Practice and Process (Chicago: U. Chicago Press, 1989) 75 at 84).
14A monist theory is a political claim that one
particular domination precipitates all really important oppressions. Whether Marxist,
anarchist, nationalist, or feminist, these ‘ideal types’ argue that important social rela-
tions can all be reduced to the economy, state, culture or gender (ing, ibid.).
19921
FOREIGN DOMESTIC WORKERS
the devaluation of “women’s work” and the public/private distinction are as
salient here as they are in other areas of feminist inquiry. Nevertheless, by tell-
ing a story about Delia’s experiences while keeping Mary’s life at the periphery,
I invite readers to encounter Delia in the text rather than as a footnote to a story
about the problems lawyers like Mary face in securing adequate childcare.
II. The History of Migration of Foreign Domestic Workers to Canada
A. Confederation-Pre-World War H
A survey of the historical literature on the “servant problem” in Canada
reveals that, with few exceptions, local demand has always exceeded supply. 5
Live-in domestic service provided the least desirable type of legal employment
open to women. Few were attracted to it, and most left it as soon as possible.
The reasons were much the same as they are today –
abysmal pay, long hours,
hard labour, low status, isolation, denial of privacy and lack of independence
and respect.16
The chronic shortage of Canadian women entering domestic service in the
last century prompted associations of upper middle class women such as the
National Council of Women (NCW) to seek relief from abroad. Soon after Con-
federation, they commenced pressuring the government into co-operative
schemes directed at recruiting domestic servants from Great Britain. 7 The
NCW was basically a forerunner of the modem day “nanny” recruitment agen-
cies. Though cloaked in righteous matemalistic tones of morality and “nation-
building,” their immigration policy was basically a thinly veiled quest for ser-
vants. Meanwhile, on the other side of the Atlantic, the British Women’s
Emigration Association (BWEA) actively encouraged the departure of unem-
ployed, unmarried British women whom it viewed as social and economic lia-
bilities. Ideally, these women would take up domestic labour in one of the col-
onies before locating husbands, establishing families and hiring their own
servants. Thus would they contribute to the material, ideological and physical
reproduction of the Empire.’
‘5The history of domestic work in Canada is thoroughly surveyed in the following works: Mari-
lyn Barber, “The Women Ontario Welcomed: Immigrant Domestics for Ontario Homes,
1870-1930” in Alison Prentice & Susan Trofimenkoff, eds, The Neglected Majority: Essays in
Canadian Women’s History, vol. II (Toronto: McClelland & Stewart, 1985) 102 at 104-06; Gene-
vieve Leslie, “Domestic Service in Canada, 1880-1920” in Janice Acton, ed., Women at Work,
1850-1930 (Toronto: Women’s Educational Press, 1980) 71 at 85-89; Barbara Roberts, “‘A Work
of Empire’: Canadian Reformers and British Female Immigration” in Linda Kealey, ed., A Not
Unreasonable Claim -Women and Reform in Canada 1880s-1920s (Toronto: The Women’s Press,
1979) 185.
16Susannah Wilson, Women, Families and Work, 3d ed. (Toronto: McGraw-Hill Ryerson, 1991)
at 72-74.
‘7Up until 1920, the only non-British domestics came from Northern Europe and Scandinavia;
it is not clear whether they were actively recruited (Varpu Lindstrrm-Best, “‘I Won’t be a Slave!’
– Finnish Domestics in Canada, 1911-30” in Jean Burnet, ed., Looking into My Sister’s Eyes: An
Exploration in Women’s History (Toronto: Multicultural History Society of Ontario, 1986) 30 at
33; Leslie, supra, note 15 at 98).
18Small wonder the Winnipeg Commissioner of Immigration referred to domestic worker
recruitment as “this matrimonial agency business” (Leslie, ibid. at 106).
REVUE DE DROIT DE McGILL
[Vol. 37
By the 1880s, a comprehensive network of selection, transport and deliv-
ery of domestic workers to Canada had evolved. The role of Canadian immigra-
tion agents in this scheme was to advertise domestic employment and/or offer
reduced fares to suitable applicants. Since prospective emigrants often lacked
the funds to pay their own way (even at the reduced rate), the fare for passage
was sometimes advanced to the Canadian immigration agent by her future
employer or, more commonly, by one of the various organizations and busi-
nesses engaging in the import/export of domestic servants. The women would
subsequently be contractually bound to a specified term of service ranging from
six months to a year and would also be required to repay the cost of the assisted
passage from wages. So began indentured servitude in Canada.
Under this scheme, the demand for domestic workers continued to outstrip
supply; thus the “servant problem” continued. Following the First World War,
the government assumed a more aggressive role in the recruitment and selection
of British domestic workers, but without notable success.’ 9 The government,
therefore, extended its recruitment efforts to the so-called “non-preferred” coun-
tries of Central and Eastern Europe, such as Poland, Romania, the Soviet Union
and Hungary. These individuals were literally shipped as “bulk orders” to the
prairie provinces.’
Hiring non-white workers to fill the labour gap was clearly the last resort.
In British Columbia, Chinese male contract labourers were grudgingly
employed by white middle class households (when they were not being put to
work constructing the Canadian Pacific Railway).” Approximately 100 women
were also brought from Guadeloupe in 1910-11 to meet the scarcity in Quebec?
Unlike their white counterparts, Caribbean servants were bonded for two years
and earned less than half the monthly wage of white servants, though employers
reported favourably on their performance.’ Three quarters of the 768 Caribbean
Blacks who immigrated to Canada between 1922-31 arrived as domestic ser-
vants.’ Some were subsequently deported, either because they were rumoured
to be single parents (and thus immoral), or because they were deemed likely to
become public charges. Agnes Calliste notes that deportation seemed to coin-
cide with periods of recession where Blacks could be fired to make room
for white servants.’ The government was reticent about admitting Blacks to
Canada, even during wartime when the supply of European nannies was cut off.
It was abundantly clear that Caribbean women were not meant to partake in the
‘9Barber, supra, note 15 at 113-17.
2″Employers considered these women to be of inferior quality (ibid. at 118).
21In a curious twist of logic, the 1902 “Report of the Royal Commission on Chinese and Jap-
anese Immigration” blamed the Chinese themselves for creating the dearth of suitable white girls
and then filling it themselves. According to the Commissioners, if not for the fact that single male
Chinese labourers displaced white labour by working for lower wages, the labouring class would
migrate to British Columbia, marry, reproduce and have female children who would grow up to
be servants. (Canada, “Report of the Royal Commission on Chinese and Japanese Immigration”
by R.C. Clute in Sessional Papers (1902) at 267).
22Calliste, supra, note 13 at 137.
23Ibid. at 136-37.
24Ibid at 133.
2Ibid. at 137-38.
1992]
FOREIGN DOMESTIC WORKERS
“nation-building” enterprise.’ Nobody promoted domestic work as a conduit to
marriage for these women.
B. Post-World War 11-1981
With minor exception, the aftermath of war in Europe did not precipitate
significant emigration of British or West European women willing to do domes-
tic work,27 nor did East European “Displaced Persons” rush to fill the void.’
Meanwhile, British Caribbean governments (with whom Canada had
strong economic ties) lobbied the federal government to dismantle its edifice of
overtly racist immigration policies. Canadian employers joined them in urging
the government to permit Caribbean domestic workers to enter in large num-
bers. The Director of Immigration opposed the entry of West Indian women on
the grounds, inter alia, that “coloured people in the present state of the white
man’s thinking are not a tangible asset…. They do not assimilate readily and
pretty much vegetate to a low standard of living.”’29 The demands of employers
and Caribbean governments prevailed, however, and culminated in a 1955
agreement between the governments of Canada, Jamaica and Barbados that
became the framework for the second Caribbean Domestic Scheme (Scheme).
Under the Scheme, single women between the ages of 18 and 40 with no
dependants and at least an eighth grade education were admitted to Canada as
landed immigrants on condition that they remain in live-in domestic service for
at least one year. Racist beliefs about the sexual behaviour of Black women
motivated the government to ensure that new arrivals were “healthy” by sub-
jecting them to extensive gynaecological examinations for venereal disease
when they arrived.”
Two factors contributed to the decision to admit Caribbean domestic work-
ers as landed immigrants rather than on a temporary basis: First, the government
retained the power to deport a woman during the first year if she proved “unde-
sirable” by, say, becoming pregnant or severing her contract with her employer.
Second, the prevailing belief was that Caribbean domestic workers, unlike their
white cohorts, would remain in domestic service long after the one year com-
pulsory period expired, presumably due to a natural affinity of Black women for
domestic service.31
2Ibid at 138.
27A few women came from Germany and the Netherlands (Franca lacovetta, “‘Primitive Villag-
ers and Uneducated Girls:’ Canada Recruits Domestics from Italy, 1951-52” (1986) 7 Can. Woman
Stud. 14 at 15).
2In 1951-52, the government experimented with a “bulk order” of 500 Italian women destined
for domestic service. Though considered ethnically undesirable, employers would compensate by
paying them less. The program was suspended after less than a year, however. The reasons had less
to do with the alleged incompetence of the women as domestic servants than with the acts of “defi-
ance” by participants who would complain about their placements, insist on job transfers, state
their preferences, and abandon their employers or domestic service altogether. They were variously
described as primitive villagers, backward and slovenly, feisty, and naturally inferior (ibicL).
29Quoted in Calliste, supra, note. 13 at 142.
30See Daiva Stasiulis, “Rainbow Feminism: Perspectives on Minority Women in Canada” (1987)
31Calliste, supra, note 13 at 143.
16:1 Resources for Feminist Research 5 at 6.
McGILL LAW JOURNAL
[Vol. 37
Because the Caribbean governments involved in the Scheme were anxious
to make a good name for their citizens abroad, their selection process gave pri-
ority to educational attainment and ambition over domestic skills. Many candi-
dates were actually nurses, teachers or civil servants in search of better job
opportunities in Canada.32 This “brain drain” of educated women was depicted
in a mordant Trinidadian newspaper cartoon featuring a Caribbean girl saying:
“I’ll be a Civil Servant when I grow up and get a chance to go to Canada as a
Domestic Servant! 33
Employers expressed general satisfaction with Caribbean domestic work-
ers, finding them to be “more educated, ‘fond of children,’ obliging and less
demanding than other domestics. ”” Caribbean domestic workers were also
cheap –
one commentator found that employers paid them up to $150 less per
month than their white counterparts. 35
Caribbean women did tend to stay in the occupation longer than white
domestic servants, though this had less to do with racist assumptions about how
amenable Black women were to domestic service than with barriers to exit. Cal-
liste suggests that these were related to discrimination in employment, a lack of
recognition of education and skills attained abroad, the stigmatization of domes-
tic work, and a lack of networks within the Canadian Caribbean community.
The situation began to change by the late 1950s so that less than a quarter of
Caribbean domestic workers stayed in the occupation for more than three
years.36
This increasing occupational mobility of women who arrived on the
Scheme troubled the Canadian government, as did the attempt by some women
to sponsor family members. The latter proved to be a delicate matter because
only single, childless women were supposed to be eligible under the Scheme.
As subsequent discussion will reveal, the state’s antipathy toward women immi-
grants with dependants has been preserved in immigration policies regarding
domestic workers which followed the Scheme.37
In 1967, various significant changes to the existing Immigration Act” were
effected through regulatory amendment. Under one such provision, it became
no longer necessary to apply for admission as an immigrant from one’s country
of origin.39 Instead, a person could come to Canada as a visitor, secure a job, and
apply for landed immigrant status from within Canada. This had the effect, inter
1966 (ibid. at 145).
32Ibid. at 143-44.
331bid, at 144.
341bid.
351bid. at 149. The Scheme brought 2,940 women to Canada as domestics between 1955 and
36Ibid. at 145.
37Infra, text and notes following note 114.
38R.S.C. 1952, c. 1-2.
39Jane Turrittin, “‘Doing Domestic’ – Work Relationships in a Particularistic Setting” in Kath-
erine Lundy & Barbara Warme, eds, Work in the Canadian Context (Toronto: Butterworths, 1981)
93 at 98.
1992]
FOREIGN DOMESTIC WORKERS
alia, of rendering the Caribbean Scheme superfluous.” In 1973 however, this
feature of the 1967 revisions was revoked by Order in Council4 so that the
option of arriving as a visitor and applying for landed status from within Canada
was abolished (save in exceptional circumstances) and all prospective immi-
grants would be required to apply from outside the country.42 For present pur-
poses, it is sufficient to note that domestic workers would not have qualified as
external applicants under the criteria of the Act and would have effectively been
excluded from Canada.43
The demand for domestic workers continued unabated as more Canadian
women began to enter the paid work force. The government responded by pro-
viding for the entry of domestic workers as visitors on employment visas. The
program was known as the Temporary Employment Authorization Program.’
Domestic workers were issued visas which stipulated that the holder could only
remain in Canada as long as she was employed as a domestic worker. The visas
could be renewed annually but the domestic workers had no real prospect of
converting their status from visitors to immigrants.
The visa system effectively transformed domestic workers into a class of
disposable migrant labourers, not unlike European “guest workers.” This was
a very efficient system for Canada, since the workers’ labour power was produ-
ced at the expense of sending countries and extracted in Canada. Once their
labour power was exhausted, the domestic workers could be returned.45
Domestic workers under the visa program were cheap, exploitable and expend-
able.
And exploited they were –
economically, physically and sexually. During
this period, however, various Black, immigrant and women’s organizations
began to agitate on their behalf. Domestic workers’ associations organized
nationwide to protest the treatment of domestic workers by the employers and
the state.46 Horrific tales of abuse at the hands of employers (including govern-
40For a description of the 1967 reforms see Christopher Wydrzynski, Canadian Immigration
Law and Procedure (Aurora, Ont.: Canada Law Book, 1983) at 60-61.
4 1SOR/72-443.
42See Department of Manpower and Immigration, Green Paper on Immigration Policy, vol. 2
(Ottawa: Queen’s Printer, 1974) at 36-37 [hereinafter Green Paper].
43The reason is that they would not have earned enough points under the new point system. See
infra, note 73 and accompanying text for a discussion of the point system.
44SOR/73-20. See also Green Paper, supra, note 42, c. 7. Though the admission of persons on
employment visas is described, domestic workers are not mentioned as a category of entrants.
45 Estimates of the number of women who entered Canada on the Temporary Employment
Authorization Program between 1973 and 1981 range from 27 000 to over 60 000 (Canada
Employment and Immigration Commission (Policy Branch), Foreign Domestic Workers: Prelim-
inary Statistical Highlight Report (Ottawa: Canada Employment and Immigration Commission,
August 1990) [unpublished]; Canadian Advisory Council on the Status of Women, Immigrant
Women in Canada: Current Issues (Background Paper) by Alma Estable (Ottawa: Canadian Advi-
sory Council on the Status of Women, 1986) at 30.
46In British Columbia: Domestic Workers Union, the Committee for the Advancement of
Domestic Workers, British Columbia Domestics’ Association and the Labour Advocacy and
Research Association; in Ontario: INTERCEDE (International Coalition to End Domestics’
REVUE DE DROIT DE McGILL
[Vol. 37
ment officials) 4 7 and Immigration authorities garnered media attention, especi-
ally during the highly publicized “Case of the Seven Jamaican Women.”4 The
rallying cry, “good enough to work, good enough to stay,”49 voiced domestic
workers’ demand for dignity and a recognition of their social and economic
contributions, by way of permanent admission into the Canadian community.
The campaign culminated in changes to federal policy in late 1981, permitting
foreign domestic workers to apply for landed immigrant status from within Can-
ada under a new scheme entitled the Foreign Domestic Movement (FDM)
program.
1H. The Contemporary Context
It’s really hard you know, working for somebody and looking after their children
because every day it’s a reminder of your own children.
I know a lot of people say that we shouldn’t come here and leave our children
back home, but what else can we do? Our children have to eat. You can’t talk to
some people about things like that because they don’t know what it is like to live
in one room with seven other people, all sleeping on one bed and some on the
floor. It’s hard. If I didn’t have to, I wouldn’t be here. But I couldn’t stay home
and see my children suffer. At least working here, I can send home money and
clothes for them.50
A. The Women Who Come
From the mid-1950s until the early 1980s, West Indian”l women comprised
the single largest group of non-white domestic workers in Canada. Since the
inception of the FDM program, the overall number of women admitted as
domestic workers has soared. The Philippines now surpasses all other regions
as the predominant country of origin, and both the proportion and absolute num-
bers of Caribbean women has dropped sharply. The following table lists the
number of entrants to the program by region:
Exploitation) and Labour Rights for Domestic Servants; in Quebec: Association du person-
nel domestique (Rachel Epstein, “Domestic Workers: The Experience in B.C.” in Linda Briskin
& Lynda Yan, eds, Union Sisters (Toronto: The Women’s Educational Press, 1983) 222 at 228,
236).47See Linda Martin & Kerry Segrave for a 1979 incident involving Larry Grossman, then a Pro-
gressive Conservative cabinet minister in the Ontario government. He and his wife employed a
domestic worker at less than the minimum wage. She allegedly worked 14-15 hours a day, and
when she disclosed to them her illegal status, her work week was extended from 5
to 7 days and
her duties expanded to include laundering and house cleaning (The Servant Problem: Domestic
Workers in North America (Jefferson: McFarland, 1985) at 123).
48See text accompanying note 249.
49See Judith Ramirez, “Good Enough to Stay” (1983-84) 1 Currents 16.
50Myrtle, West Indian domestic worker. Quoted in Makeda Silvera, Silenced: Talks with working
class Caribbean women about their lives and struggles as Domestic Workers in Canada, 2d ed.
(Toronto: Sister Vision, 1989) at 76.
511 use the terms West Indian and Caribbean interchangeably to denote women from Jamaica,
Barbados, Antigua, St. Kitts-Nevis, the Bahamas, Haiti and Guyana.
1992]
FOREIGN DOMESTIC WORKERS
TABLE 1
FOREIGN DOMESTIC MOVEMENT
ENTRANTS TO PROGRAM BY REGION OF ORIGIN
1982-199052
Year
1982
1983
1984
1985
1986
1987
1988
1989
1990
a 1982 figures include domestic workers in Canada prior to establishment of the program.
Total
11327
3511
4570
5479
6938
7889
8056
8842
10946
U.K.
27.0%
18.8
12.6
13.6
12.2
11.7
9.4
8.3
6.4
Eur.
18.2%
29.2
28.1
26.3
24.2
24.3
23.0
19.0
13.2
Phil.
24.5%
15.0
16.9
28.0
37.0
40.7
46.0
49.6
60.2
Car.
18.3%
15.6
20.4
15.7
11.1
8.0
6.8
6.2
5.4
Other
12.0%
21.4
21.9
16.4
15.5
15.3
14.9
16.9
14.8
In 1990, over half of the domestic workers who fell into the category
labelled “Other” came from Less Developed Countries (LDCs) in Africa, Asia
and Latin America.53 Added to the number of migrants from the Philippines and
the Caribbean, the aggregate proportion of Third World women entering the
FDM program in 1990 was almost 75%, or three quarters of the total. Unlike
women from Europe, women from the Third World overwhelmingly take
advantage of the opportunity to apply for landed immigrant status.5 4
Unfortunately, Employment and Immigration has issued no recent statistics
on the total number of entrants to the FDM program who apply for landed status
or the proportion who are rejected. A tentative analysis of data up to 1985 sug-
gested that very few (4.4%) were rejected outright on the grounds of inability
to establish or become self-sufficient. On the other hand, some 40% were either
directed to further training or were “on hold.” The ultimate success of the latter
52Supra, note 3; Canada Employment and Immigration (Policy Branch), Entrants to the FDM
(Ottawa: Canada Employment and Immigration Commis-
Program by Country of Origin -1990
sion, 9 April 1991) [unpublished].
53The status of certain countries which I have designated as LDCs may be debatable. These are
Algeria, Brazil, Chile, Colombia, Jordan, Lebanon, Malaysia, Mexico, Morocco, Syria and Tuni-
sia.
4In 1987, ten countries accounted for 71% of the foreign domestic workers who obtained landed
immigrant status. Within this group, 84% came from LDCs (Canada Employment and Immigration
Commission, Immigration Statistics 1987 (Ottawa: Minister of Supply & Services Canada, 1989)
at 10 (table S8)). I would speculate that the proportion of Third World women applying for landed
status has risen since 1987 in accordance with their increased representation among the entrants
to the program (see Mary DeVan, Socia; Economic and Political Factors Influencing the Supply
and Demand of Foreign Domestic Workers (M.A. Thesis, U.B.C., 1989) [unpublished] (on file with
author) at 83-84). I suggest elsewhere in this paper that the divergence in motivation between
domestic workers from LDCs (especially Filipino women) and those from developed countries has
an impact on the working lives of these women in Canada (infra, notes 215, 218 and accompanying
text).
McGILL LAW JOURAL
[Vol. 37
Informal estimates suggest that about 18 000 women, or half the
is unknown.’
number who entered through the program up to 1987, had obtained landed sta-
tus as of 1990.56
Recent statistics also indicate a wide variation in landing rates according
to country of origin. FDM participants from the Philippines and Caribbean ulti-
mately land at rates of 85% and 70% respectively whereas British and European
participants land at rates of around 50% and 30% respectively. 7 These data sug-
gest that women from LDCs are, as a group, proportionately more interested in
using the FDM program as a route to immigration than are Anglo-European
women, who may simply use the FDM as a temporary “work abroad” program.
Obviously, prospective immigrants from LDCs who seek to escape harsh
living conditions and create a better life in Canada may prefer to endure hard-
ship here en route to citizenship rather than return to their countries of origin.
Hana Havlicek, owner of a domestic worker employment agency and vice-
president of the Canadian Coalition for Child and In-Home Care, turns this pro-
saic observation into a deemed consent by domestic workers to all subsequent
treatment in Canada:
If our situation in Canada is so bad, why are we getting thousands of letters? I am
getting thousands of letters from the entire world to please help them come to this
wonderful country of ours in order for their future to be assured58
Aside from the fact that many women may not know what is in store for
them as domestic workers in Canada,59 Havlicek’s rhetorical question elicits at
least two responses. First, as Michael Walzer declares:
[T]his kind of consent, given at a single moment in time, while it is sufficient to
legitimize market transactions, is not sufficient for democratic politics. Political
power is precisely the ability to make decisions over periods of time, to change
the rules, to cope with emergencies; it can’t be exercised democratically without
the ongoing consent of its subjects. And its subjects include every man and
woman who lives within the territory over which those decisions are enfor-
ced. 60
Second, it is important to recognize the role developed countries, including
Canada, play in generating the conditions in the LDCs which motivate foreign
women to “consent” to wages and working conditions that Canadians spurn.
(Policy Branch) (18 April 1991) Ottawa.
55Canadian Advisory Council on the Status of Women, Immigrant Women in Canada: A Policy
Perspective (Background Paper) by Shirley Seward & Kathryn McDade (Ottawa: Canadian Advi-
sory Council on the Status of Women, 1988) at 42-43. The authors caution that the data may not
be entirely accurate.
56Telephone interview with Joanne Roberts, Canada Employment and Immigration Commission
51Canada Employment and Immigration Commission (Strategic Planning and Research Direc-
torate), Statistical Profiles and Forecasts of the Foreign Domestic Movement (Ottawa: Canada
Employment and Immigration Commission, November 1990) at 7 (table 4) [unpublished].
58Quoted in “Living on the Job,” W-5, CTV Television Network (25 March 1990) [hereinafter
59See text accompanying notes 189-194 regarding the employer/employee agreement.
6Walzer, supra, note 12 at 58.
“Living on the Job”].
1992]
FOREIGN DOMESTIC WORKERS
Consider Delia’s country of birth, the Philippines.61 Her country is heavily
indebted to Western commercial banks. In the name of maximizing repayment of
outstanding loans and interest, the International Monetary Fund (IMF) has pres-
sured the Philippines into adopting “belt-tightening” policies. One of the first
casualties of IMF policies in debtor nations are social service budgets, resulting
in reductions of food subsidies, wage restrictions, public service cutbacks, and
shrinking health and education expenditures. Political scientist Cynthia Enloe
suggests that political leaders of these countries can mitigate the politically desta-
bilizing effect of the IMF restraint package if women can “figure out ways to
stretch the kerosene and cooking oil, if women can find more ways to earn a bit
of money in the casual labour sector, if women are willing to care for a sick child
without resorting to the public clinic.”’62 Another option for some women is to
leave their families behind, migrate to other countries, and work for the foreign
exchange so desperately needed to keep foreign creditors at bay:
The “debt crisis” is providing many middle-class women in Britain, Singapore,
Canada, Kuwait and the United States with a new generation of domestic servants.
When a woman from Mexico, Jamaica or the Philippines decides to emigrate in
order to make money as a domestic servant she is designing her own international
debt politics. She is trying to cope with the loss of earning power and the rise in
the cost of living at home by cleaning bathrooms in the country of the bankers. 63
Desperate families in the Philippines have thus discovered how cheap
female labour can be substituted for cheap products as an export commodity.’
In the Philippines, overseas contract workers are the single largest source of for-
eign exchange, most of which is sent through informal remittances from the
worker to her family.6′ Half the migrant labourers are women, and half the
women migrate as domestic workers.6 6 This pattern is mirrored by the increas-
ing “feminization” of the migrant worker population in recipient countries. As
of 1985, 40% of temporary workers in Canada were women, and 90% of the
women were employed in domestic service.67
61This section draws heavily on Cynthia Enloe, Bananas, Beaches & Bases: Making Feminist
Sense of International Politics (London: Pandora, 1989). For an application of similar principles
in the Caribbean context, see Lynn Bolles, “IMF Destabilization: The Impact on Working Class
Jamaican Women” (1983) 2 Transafrica Forum 63.
62Enloe, ibid. at 185.
631bid
64This is often produced by cheap female labour (See Delia Aguilar, The Feminist Challenge:
Initial Working Principles toward Reconceptualizing the Feminist Movement in the Philippines
(Manila: Asian Social Institute, 1988) at 9).
65In a recent survey conducted by the West Coast Domestic Workers Association (West Coast
DWA), 70% of respondents sent money home monthly (West Coast DWA, Summary of Results:
Foreign Domestic Worker Employment Survey (Vancouver: West Coast DWA, March 1990)
[unpublished] (on file with author) at 4 [hereinafter Summary of Results]).
66Estimates of the money remitted in this way range between $3.5 to $7 billion annually. At least
3.5 million Filipinos work abroad as overseas contract workers. According to Fely Villasin, official
figures regarding the number of migrant workers abroad (522 984 processed in 1989) drastically
underestimates the reality because it does not include workers who left as tourists rather than offi-
cial overseas workers (Domestic Workers from the Philippines: One-Month Observation Report
(Toronto: INTERCEDE, November 1990) [unpublished] (on file with author) at 1).
67Temporary workers are non-immigrants who are permitted to work in Canada by virtue of an
Employment Authorization which “authorizes workers to be employed in a designated occupation
REVUE DE DROIT DE McGILL
[Vol. 37
As a developed country, Canada benefits from the international sexual
division of labour and this so-called “warm body export.”6 Western consumers
can buy cheap appliances produced by Third World women; now they can also
import Third World women to operate them. 9 As Rosaura SAnchez reminds us,
Delia may be outside Canada’s borders, but the forces propelling her toward this
country are causally connected to the exigencies of North-South relations in
which all nations are implicated:
In fact the inside/outside antithesis … hides the fact that the inside is capitalism
and that even the seemingly outside, as regards the international labour force of
the Third World, is very much inside, within the spheres of multinational capital-
ism, but that at the same time all that is inside is not center.70
B. Foreign Domestic Movement
The legal status of a foreign domestic worker cannot be understood without
reference to Canada’s immigration scheme as a whole. While a thorough survey
of this subject is beyond the scope of this paper, a rough sketch will assist in
setting the legal landscape upon which the FDM program has been grafted.
The Immigration Act7 distinguishes between two classes of non-citizens
who request entry into Canada: immigrants and visitors. An immigrant is a per-
son who seeks landing, which is defined in section 2.1 as “lawful permission to
come into Canada to establish permanent residence.” Once an immigrant is
landed, she is called a “permanent resident” and is eligible for citizenship after
accumulating a minimum of three years of Canadian residence. The category of
immigrant includes persons who apply as independent immigrants,’
family
class (i.e. immediate family), assisted relatives (i.e. extended family) and
refugees.
Since 1967, the eligibility of potential immigrants has been assessed
according to a point system. Broadly speaking, the categories of assessment are
education, experience, occupational demand, language skills, demographic fac-
tors, and “personal suitability.” Applicants are required to score a minimum
total number of points in order to qualify for entry. The requisite number of
points varies according to the class of applicant. 3 One may ask why foreign
with a designated employer for a designated time period” (Monica Boyd & Chris Taylor, “The
Feminization of Temporary Workers: the Canadian Case” (1986) 24 Int’l Migration 717 at 717).
6sAguilar, supra, note 64 at 9.
69There would appear to be a thriving international traffic in Asian women as prostitutes and
mail order brides. In a broad sense, they would appear to be exported as female sex-role commodi-
ties to perform some combination of sex, housework and childcare. See Aguilar, ibid. at 8ff.
7Supra, note 1 at 82.
71R.S.C. 1985, 1-2.
72This category in turn includes several subgroups that can be roughly classified as independent
workers whose sole asset is their occupation, business class applicants and retirees.
73There are different categories of immigrants each requiring different numbers of points to
become permanent residents. The following is a list of criteria for acceptance:
(1) Independent immigrants must accumulate at least 70 points (Immigration Regda-
tions, 1978, SOR/78-172, s. 9(1)(b)(i); a useful compilation of the Immigration Act
and Immigration Regulations, 1978 is Frank N. Marrocco & Henry M. Goslett, The
Annotated 1992 Immigration Act of Canada (Toronto: Carswell, 1991);
1992]
FOREIGN DOMESTIC WORKERS
domestic workers do not simply enter as immigrants. The short answer is that
they would rarely earn enough points according to the point system as presently
administered. How and why the point system systematically rejects a class of
persons whose labour is in demand will be pursued in Part VI.
The second category of persons recognized under the Immigration Act are
visitors, defined as those who come to Canada “for a temporary purpose.”‘ Vis-
itors are permitted to stay in Canada for up to three months, though they may
apply to extend their stay. Visitors may not work in Canada without an employ-
ment authorization stipulating the terms and conditions of their employment.75
There are only two criteria for issuance of an employment authorization: the
applicant must be capable of performing the duties required by a particular
employer, and no qualified Canadians or permanent residents are available for
the job.7”
The Immigration Act presumes that a person seeking entry to Canada is an
immigrant and the burden is on her to prove that she is not.77 The categories of
immigrant and visitor are ostensibly discrete and exhaustive. The operative
assumption is that one either intends to remain in Canada permanently, in which
case one is an immigrant, or one intends to remain temporarily, meaning that
one is a visitor.7′
The foreign domestic worker, however, occupies the technically non-
existent category of “visiting immigrant.” To be more exact, her application to
enter Canada as a foreign domestic worker is assessed as if she had the intention
(2) assisted relatives (extended family members of a landed immigrant or citizens who
do not fit within the family class definition) need obtain only 60 points, because
they enter subject to an undertaking by a permanent resident of citizen to assist that
person in becoming established in Canada (Immigration Regulations, 1978, ss 2(1),
10);
(3) family class applicants (including spouses, fianc~s, parents, unmarried children,
and orphaned siblings, grandchildren or nieces and nephews under the age of 18)
may be sponsored by a permanent resident and need not qualify under the point
system (Immigration Regulations, 1978, s. 4);
(4) business class applicants, which includes entrepreneurs, investors and self-
employed individuals need fewer points (between 25 and 40, depending on their
designation). Their preferential treatment is based on the assumption that they will
stimulate the economy by starting a business undertaking or investing significant
sums of money in the country. Entrepreneurs need only obtain 25 points; the price
of their admission is an undertaking to invest at least $500,000 in a business or
commercial venture in Canada and create a job for at least one Canadian (Immi-
gration Regulations, 1978, s. 2(1)); and
(5) refugees are assessed according to the criteria contained in the point system, but
are not formally required to attain a minimum score (Immigration Regulations,
1978, s. 2(1)).
For a “plain language” explanation of the different categories, see Gary Segal, Immigrating to
Canada, 9th ed. (North Vancouver: Self-Counsel Press, 1990).
748. 2(1).
75Immigration Regulations, 1978, ss 18, 19.
76Ibid. s. 20(3).
77S. 8(2).
78David Matas, Canadian Immigration Law (Ottawa: Canadian Bar Association, 1986) at 7.
McGILL LAW JOURNAL
[Vol. 37
of remaining in Canada permanently, 79 but once admitted she is officially
labelled a visitor unless and until she successfully applies for landed status two
years hence. Immigrants must meet a higher threshold than visitors in order to
enter Canada; visitors have fewer entitlements than immigrants once they are in
Canada, are subject to greater constraints in their occupational mobility and may
be liable to removal for a variety of reasons not applicable to immigrants. In
other words, it is easier to enter as a visitor, but easier to stay if one is an immi-
grant. In practice a domestic worker bears the burdens of both immigrants and
visitors, yet receives the benefits of neither. This is how the inside/outsider par-
adox manifests itself for domestic workers in the context of immigration law.
Inscribing the foreign domestic worker with the legal label “visitor” is
wholly arbitrary as it does not necessarily capture her subjective intention. Fur-
thermore, the “visitor” label cannot be attributed to the temporary nature of their
occupation, since there is a chronic, persistent demand for domestic work.8 If
anything, the designation of “visitor” signifies nothing more than the govern-
ment’s desire that these women not remain in Canada permanently.
Given her anomalous position in the legislative scheme, it is perhaps unre-
markable that the foreign domestic worker has been hitherto legally invisible.”
One searches in vain for any acknowledgement of her status in the Immigration
Act or in the Immigration Regulations, 1978. Though section 114(1) of the
Immigration Act delegates to the Minister authority to promulgate regulations
pertaining to selection standards for entrants into Canada, none exist with
respect to foreign domestic workers.
The FDM program and its rules are buried in a morass of administrative
policies and guidelines contained in the voluminous Immigration Manual.82
Unlike the Immigration Act and the Immigration Regulations, 1978, which are
publicly promulgated, formal, legal instruments, the Immigration Manual con-
sists of several binders packed with informal instructions addressed to bureau-
crats charged with administering immigration policy. The Immigration Manual
has no legal authority; its purpose is to guide bureaucratic discretion in applying
the Immigration Act and Regulations. The Preface to the Manual makes this
point explicit:
The contents of this component are therefore NOT to be regarded as binding
instructions, nor are they intended to envisage every contingency. Rather, they are
79Although she is not assessed under the point system, the factors taken into account when she
applies under the FDM program are qualitatively similar.
80Farm workers are also admitted as temporary workers to fill a chronic need. The difference
is that farm work is episodic (Sedef Arat-Koc, “In the Privacy of Our Own Home: Foreign Domes-
tic Workers as Solution to the Crisis in the Domestic Sphere in Canada” (1989) 28 Studies in Polit-
ical Economy 33 at 46-47).
81The government has very recently resolved to enact regulations pertaining to domestic work-
ers, claiming as one motive for its action the decision of the Federal Court in Pinto. The case and
its implications will be discussed infra, note 106 and accompanying text. See also the Postscript
for the most recent regulatory statement.
82The Immigration Manual is a looseleaf service of three volumes in the public domain contain-
ing guidelines and procedures for recruitment and selection of immigrant, visitor, and refugee
applicants, examination and enforcement processes, and backlog clearance guidelines. Each vol-
ume will be cited when it is first referred to or quoted from.
1992]
FOREIGN DOMESTIC WORKERS
presented as guidelines to assist officers in applying sound judgement in the per-
formance of their duties under the Immigration Act, Regulations and related leg-
islation… . Where conflict or inconsistency exists between these guidelines
(including related Operations Memoranda) and the provisions of the Immigration
Act, Regulations and related legislation, the latter must take precedence. [empha-
sis in original]s
By situating the foreign domestic worker astride the categories of immi-
grant and visitor, the FDM program necessarily generates conflict with the
enabling legislation. The inconsistencies become graphic upon close examina-
tion of the selection process that brings a woman like Delia to Canada.
Delia first left the Philippines to work in Singapore as a domestic worker.
She heard through the grapevine that long term opportunities might be better in
Canada, so she approached a private recruitment agency in Singapore. The first
thing she learned was that she would have to pay a non-refundable agency fee
of $300.00. She went away and returned several months later after scraping
together the money. She was then told to fill out a form giving her work history
and personal information. When she got to the part about marital status and chil-
dren, the agency told her to say she was single and childless. They told her that
Canada would reject her otherwise.’ 4 Delia hesitated, but she could not afford
to be rejected. So she did as she was told. She lied.
The agency sent Delia’s name and application back to a Vancouver affiliate
which charges potential employers a fee for importing and placing domestic
workers. A few days later, a young professional couple entered the office. They
had one toddler and the woman was pregnant with their second child. They had
never hired a live-in domestic worker before, and they requested information
about what kind of person they ought to hire. They first learned about a hierar-
chy of labels that varies in accordance with the duties a domestic worker is
expected to perform in addition to childcare. The heavier the workload, the
lower the status of the title.” As one employment agency representative
explained it:
A domestic is a general term for a nanny house-keeper/cook/driver whatever. A
nanny, a true nanny is looking after the children only. A nanny house-keeper
which is what most people are doing in the Vancouver area is looking after the
children and doing the house-keeping.86
The couple felt that with their busy schedules having a person who would
do all the housework would be advantageous. The woman was particularly anx-
83mmigration Manual (Selection and Control) (Ottawa: Minister of Supply & Services Canada,
1984) at s. 1(c) of the Preface. The IS (Selection and Control) component of the Immigration Man-
ual contains guidelines and procedures for the recruitment, selection, and processing of immigrant,
visitor and refugee applicants.
84Many domestic workers report that recruitment agencies counsel them to lie about their
marital/family status (West Coast DWA, Foreign Domestic Workers in British Columbia: Recom-
mendations for Change (Vancouver: West Coast DWA, 30 November 1989) [unpublished] at 16
[hereinafter Recommendations for Change]).
85DeVan, supra, note 54 at 87.
86Ibid-
REVUE DE DROIT DE McGILL
[Vol. 37
ious since, like most women, she did most of the housework.87 The agency rep-
resentative informed them that they could not expect an Anglo-European to do
all the “dirty work.” Happily, a Filipina would do it, and for the same price:8
I think if you were talking about a Filipino you would probably use the term
domestic, and if you were talking about Australia, New Zealand it’s nanny house-
keeper, and if you were talking about a plain nanny it’s someone who only does
the work for the children.
When a family wants a very professional, trained nanny they will hire an English
nanny, but they can’t expect a lot of house-keeping. When they want somebody
who will do light house-keeping. tidying, maybe preparing the evening meal, and
lots of child care they’ll hire a European. If they want somebody who can do all
the house-keeping and maybe they have babies or small children they’ll hire the
Filipinos.
89
The couple also learned how quiet and docile Filipino women were, and
how “naturally suited” they were to childcare and domestic work. Here is a sam-
pling of employment agencies’ portrayals of Filipina domestic workers:
They’re … great with kids. They really like small children. They’re very loving,
they’re very calm. A lot of families though with older children don’t want Filipi-
nos because Filipinos have a problem with discipline. They’re too loving, they’re
not firm enough with the kids, but with young families they’re great and so they
have a big demand.
87Even in families where both partners work outside the home, women still perform most of the
domestic labour (see Sylvia Walby, Theorizing Patriarchy (Oxford: Basil Blackwell, 1990) at
80-83).
88British nannies sometimes demand higher wages than Filipina domestic workers, in recogni-
tion of their formal accreditation acquired through the NNEB training course. Since the onset of
the recent recession, employers are using their superior bargaining position to depress wages of
formally trained British nannies (Interview with Pat Henry, Vice-President, Canadian Coalition for
In-Home Child and Domestic Care (6 June 1991) Toronto). See also Jane Gaskell, “Conceptions
of Skill and the Work of Women: Some Historical and Political Issues” in Michele Barrett &
Roberta Hamilton, eds, The Politics of Diversity (London: Verso, 1986) 361 at 379. Employers’
contemporary market behaviour is dispiriting in its predictability; it virtually mimics the conduct
of employers a hundred years ago as documented by Genevi6ve Leslie:
Although employers demanded a high level of skill, they were reluctant to pay for it,
Because her skills were believed common to all women, the domestic was more vul-
nerable to competition than other workers. Experienced domestics distinguished
between themselves and “outsiders,” but many people looked upon service as a catch-
all occupation that could absorb society’s misfits.
Employers exploited the ambivalent status of domestic skills. They complained
loudly that trained servants could not be found, and that the shortage was approaching
a national emergency. They put extreme pressure on government and recruitment
agents to import large numbers of highly trained servants, thereby raising the general
level of skill. At the same time, they would employ unskilled workers whenever it was
convenient or economical to do so. In a pinch, any woman could do housework, though
her work might not be as good as employers would like. Competition from untrained
workers kept down the wages of trained servants, and the demand for skills undermined
job security for the untrained. Employers, however, won either way (supra, note 15 at
92).
89DeVan, supra, note 54 at 87.
1992]
FOREIGN DOMESTIC WORKERS
Filipino people stay the longest. They don’t go out at night, they’re not as social.
Young girls from Europe are lively…. It’s a quieter living girl [sic] in your home,
and not only that, they’re better housekeepers and laundresses.
Filipinos, you could eat off the floor they’re that clean. For some people that’s a
priority. Filipinos as a rule are very quiet people. They would not get overly
friendly with and, um, get friends with the extended family members and all that.
The Filipinos tend to be quite domesticated in their upbringing … it’s their whole
nature. They are a little more subservient, whether families want to treat them like
that or not it’s their whole nature –
they like to know
that they are going to have someone who’s going to be hard working.90
some families like that –
The couple liked what they heard about Filipino women. It seemed consist-
ent with what other couples had told them,9 and it made sense to them that Fil-
ipino women would be the tidy, diligent, submissive, child-loving type. Asian
women were like that, weren’t they? It was a feature of their culture, after all.
(Of course, had the couple walked into the same office a decade earlier, they
might have heard similar stories about West Indian women).’
The couple decided to hire a “domestic,” that is to say, a Filipina.93 The
agency gave them Delia’s profile. She sounded fine. The couple next went to
the local Canada Employment Centre (CEC) to arrange for an official job offer.
They required government validation of their job offer in order to hire a non-
resident of Canada. The employment officer instructed them to fill out a form
outlining the duties of the position and-the proposed terms and conditions of
9Ibid. at 88-89.
91Not all employers agree, however. One woman was appalled by the way in which an agency
representative constructed Filipino women:
One woman proceeded to tell me how Filipinos are such wonderful housekeepers, how
you can get them to wash your windows and floors and do laundry and everything. She
implied they were very quiet and would never complain. I was so offended. She made
it sound like slavery (Eva Herbermann, employer, quoted in “Beyond Mary Poppins”
[Vancouver] Sun (20 July 1987) Bi).
92Like Filipino women, the West Indian women who preceded them had similar stereotypes
about their fondness of children, obliging nature and affinity for housework foisted upon them. At
the same time, some researchers have suggested that the arrival of Filipino women has exposed
the variegated nature of racism experienced by women of colour. In particular, some employers
appear to rank Filipinos above Caribbean women in terms of perceived facility for childcare, the
most highly regarded of domestic tasks. One Jamaican domestic worker reported being refused a
job because the employer’s children were “more used to” Filipina domestic workers (Interview
with Mary Banasen, West Coast DWA (25 January 1991) Vancouver). Other findings also suggest
discrimination against Black women in domestic worker positions requiring childcare: Rina
Cohen, “The Work Conditions of Immigrant Women Live-In Domestics:. Racism, Sexual Abuse
and Invisibility” (1987) 16:1 Resources for Feminist Research 36 at 37.
93The process of classification and naming that constructs women of colour as suited to partic-
ular kinds of work thus culminates in the fusion of personal characteristic with occupation: “Fil-
ipino” becomes synonymous with “domestic;” Afro-American poet Audre Lorde’s infant daughter
becomes “a baby maid” in the eyes of a little white girl encountered at a supermarket (Audre Lorde,
“The Use of Anger: Women Responding to Racism” in Audre Lorde, ed., Sister Outsider (New
York: Crossing Press, 1984) 124 at 126).
McGILL LAW JOURNAL
[Vol. 37
employment.94 The form already contained various stipulations, including a
five-day week, provision of overtime after 40 hours, and days off. All the couple
had to add were the domestic worker’s duties and the wages. The employment
officer told them that their offer would not be validated unless they offered at
least the provincial hourly minimum wage. The couple offered the minimum
wage, which amounted to $5.00 per hour.
It is noteworthy that the minimum hourly wage and overtime provision
inserted by the Canada Employment Centre into the British Columbia version
of the employer/employee agreement is an improvement over what Delia would
be entitled to receive under the British Columbia employment standards legis-
lation. Under the provincial legislation, domestic workers are only entitled to a
fixed daily wage of $40.00 regardless of number of hours worked.95 Most prov-
inces in Canada either exclude domestic workers from a minimum hourly wage
and overtime provisions entirely or confine them to a fixed daily or weekly
rate.96 Only Ontario and Manitoba guarantee minimum wage and overtime to
domestic workers, though the former permits the employer to give time-off in
lieu of overtime and the latter requires domestic workers not to work for more
than 12 hours daily.97
The compensation rate that the CEC requires employers to offer varies
throughout the country. Regional CEC offices determine the rates appropriate to
that area in consultation with the Ottawa headquarters. Typically, the regional
office imposes at least the prevailing hourly minimum wage (regardless
94Canada Employment and Immigration Commission, Enployment Manual (Ottawa: Minister of
Supply & Services Canada) at EA 17.42(6)(b)(iii). The terms and conditions described herein rep-
resent those adopted by the British Columbia region of Employment and Immigration. Each region
develops its own version of the document (which becomes the employer/employee agreement) in
consultation with Ottawa. In general, most regions require the employer to pay at least the min-
imum wage whether or not provincial minimum wage legislation applies to domestic workers (Tel-
ephone interview with Glen Knapp, Canada Employment and Immigration Commission (Halifax)
(11 July 1991) Halifax).
95Employment Standards Act Regulation, B.C. Reg. 37/81, ss 3, 9.
96Alberta, Saskatchewan, Nova Scotia and New Brunswick exclude domestic workers from the
application of minimum wage, hours of work and overtime provisions (Employment Standards
Code Exemption Regulation, Alta Reg. 296/88, s. 6; Labour Standards Regulations, Sask. Reg.
317/77, s. 17; Regulations Pursuant to Sections 4 and 7 of the Labour Standards Code, N.S. Reg.
298/90; Employment Standards Act, S.N.B. 1982, c. E-7.2 as am. S.N.B. 1984, c. 42, s. 1). Prince
Edward Island excludes “persons employed for the sole purpose of protecting and caring for chil-
dren … in private homes” (Labour Act Minimum Wage Order, P.E.I. R.Reg. c. L-1, s. 1).
That these provisions effectively deny domestic workers are employees is articulated most
starkly by the New Brunswick statute, which literally defines domestic workers out of existence
by interpreting employer to exclude “a person having control or direction of or being responsible,
directly or indirectly, for the employment of persons in or about his private home (ibid.).”
Newfoundland provides domestics with an hourly minimum wage of $3.00, compared to $4.25
for other employees, though no deductions may be taken for room and board (Labour Standards
Regulations, 1988, Nfld Reg. 74/88 as am. by Nfld Reg. 254/88, s. 8). Quebec guarantees a weekly
minimum of $215.00 with overtime after 53 hours. Other Quebec workers are entitled to $5.55 per
hour and overtime after 44 hours (Labour Standards Regulations, R.R.Q. 1981, c. N-1.1, s. 3 as
am. by O.C. 1201-91, 28 August 1991, G.O.Q. 1991.11.5046).
97Domestics, Nannies and Sitters, 0. Reg. 308/87, as am. by 0. Reg. 933/87, s. 7; Domestic
Workers Regulation, Man. Reg 99/87R, s. 3.
1992]
FOREIGN DOMESTIC WORKERS
of whether provincial legislation requires it), though not necessarily over-
time.9s
The Immigration Regulations, 1978 pertaining to employment authoriza-
tions for visitors state that employers must first demonstrate efforts to hire
locally by offering wages and working conditions “sufficient to attract and
retain in employment qualified Canadian citizens or permanent residents.”99 In
specific reference to the FDM program, the Employment Manual conditions
approval of offers of employment on a determination that “wages and working
conditions offered are sufficiently above the norm to attract Canadians with pro-
fessional skills and special aptitudes in childcare and home management.”‘ ‘
This is meant to ensure that employers have access to skills unobtainable in the
Canadian labour market while precluding them from importing cheap foreign
labour as a substitute for guaranteeing wages and working conditions acceptable
to qualified Canadian residents. 1′ Nobody knows what, if anything, is “the
norm” for domestic work, nor what might amount to acceptable wages and
working conditions for Canadians qualified to do live-in domestic work. The
reason is that employers have always wielded enough political power to ensure
a supply of foreign labour desperate enough to work for minimum or sub-
minimum wages. A 1980 government task force admitted that domestic workers
are “underpaid because domestic work – when it is done by our relations as
is seriously undervalued.”1 2 In effect, the FDM
well as by our employees –
scheme exists because domestic work is undervalued and it exists in order to
keep it that way.
Michael Walzer’s description of the relation between industry and the state
with respect to European guest workers is equally apposite to Canadian parents
and the state vis-a-vis domestic workers. Walzer explains how certain socially
necessary work has come to be disparaged as “menial” in wealthy European
nations. Busting unions and dismantling the social welfare state is a politically
unpalatable route for driving the most vulnerable among the local working class
into performing the necessary labour. Equally unappealing to government and
business elites is the option of raising wages and working conditions of unde-
sirable jobs in order to render them more attractive. In Walzer’s view, this latter
gambit would “raise costs throughout the economy and, what is probably more
important, challenge existing social hierarchy.””0 Economic managers, with the
cooperation of European governments, avoid both of these local solutions by
98For example, the British Columbia version of the employer/employee agreement contains an
overtime provision. Conversely, the Nova Scotia form is silent with respect to overtime, though
employment officers verbally “encourage” prospective employers to pay it, albeit at regular rates.
In neither province does legislation compel payment of overtime to domestic workers.
99S. 20(3)(c).
10Supra, note 94 at EA 17.42(6)(a).
l”Boyd & Taylor, supra, note 67 at 719.
12Canada Employment and Immigration Commission, Task Force on Immigration Practices and
Procedures, Domestic Workers on Employment Authorizations (Ottawa: Canada Employment and
Immigration Commission, 1980) at 96 [unpublished], quoted in Jenifer Aitken, “A Stranger in the
Family: The Legal Status of Domestic Workers in Ontario” (1987) 45 U.T. Fac. L. Rev. 394 at 410.
103Walzer, supra, note 12 at 56.
REVUE DE DROIT DE McGILL
[Vol. 37
recruiting from the international labour market and making the jobs “available
to workers in poorer countries who find them less undesirable.”1″ A parallel
story could be told about why Canadian families recruit women from LDCs to
perform domestic labour on a live-in basis. Delia unquestionably left the Phil-
ippines because she found it very difficult to support herself and her family
there, and she certainly hopes that domestic work in Canada will be better than
domestic work in Singapore –
or at least more remunerative.
Once the Canada Employment Centre validated the couple’s offer of
employment, the document was forwarded to Delia, who brought it to the Cana-
dian embassy in Singapore. Delia was subsequently called in for an interview
by a visa officer to determine her eligibility for the position. In order to qualify
for the FDM program, she had to have a minimum of one year’s full-time expe-
rience as a domestic worker or a certificate from a recognized school showing
successful completion of a domestic worker training program.” Though Delia
had no formal training as a domestic worker, she brought up her education and
experience as a primary school teacher for seven years. She did not mention, of
course, her experience as a mother. The visa officer responded that being a pri-
mary school teacher had nothing to do with childcare.”0 6 Luckily, she had been
employed in Singapore as a domestic worker for almost a year and a half, so
she qualified on the basis of that experience.”0
Not all applicants are as fortunate as Delia in this regard. The recent case
of Pinto””s demonstrates how the rigid requirements of the program are used to
exclude women who have acquired relevant skills through other means. It also
illustrates the inherent conflict between the FDM admission requirements and
the law governing the issuance of employment authorizations to visitors. The
case arose because the employer (Pinto) wished to employ a distant relative in
India (Ms Quadros) as a domestic worker to care for his daughter and his elderly
parents. The Canadian visa officer in Delhi rejected Quadros’ application on the
basis that she did not meet the FDM criteria contained in the Immigration Man-
ual (Selection and Control). Though she was a school teacher and mother, and
also spoke the only language (Konkani) understood by Pinto’s parents, she
1
04Ibid.
105lmmigration Manual (Selection and Control), supra, note 83 at IS 15.61(3).
106See Pinto v. Canada (Minister of Employment and Immigration) (1990), [1991] 1 F.C. 619
at 625-26, 39 F.T.R. 273 [hereinafter Pinto cited to F.C.] (visa officer refusing application because
applicant school teacher/mother had no outside experience as domestic worker).
10 Had Delia attempted to enter as an immigrant, the amount of prior training (formal or on-the-
job) required of her would be determined by the designation of her occupation under the Canadian
Classifications and Dictionary of Occupations (Ottawa: Minister of Supply & Services Canada,
1986) [hereinafter CCDO, 1986]. In descending order of specific vocational training required, the
following six classes of domestic occupations are embraced by the FDM program: Housekeeper
(6 months-1 year), Children’s Nurse (3-6 months), Domestic Servant (1-3 months), Babysitter (up
to 30 days), Companion (up to 30 days), Parent’s Helper (up to 30 days). The content of the duties
required by the various occupational categories seems rather arbitrary and there is considerable
overlap between them. What is important to note in this context is that the requirement of at least
one year prior experience in lieu of a training course required under the FDM program exceeds
the training period demanded under the CCDO, 1986 for any of the six categories.
’08Supra, note 106.
1992]
FOREIGN DOMESTIC WORKERS
failed because she lacked direct experience as a domestic worker as required by
the terms of the FDM program. 0 9
The first telex transmitted from the Canadian visa office in New Delhi con-
veys the visa officer’s distrust of Ms Quadros:
She is a cousin of employer. She has had no outside experience as a domestic,
nanny or senior citizens care worker. … Subject lacks relevant experience in either
child or elderly persons care. Within her own household, sister and mother have
maintained home during the day while she carried on her teaching career. Believe
application motivated by eventual desire to settle herself and daughter in Canada
for greater opportunities for the latter [sic], whom she reiterated during the inter-
view is a very [brilliant] student…. She also does not meet earlier FDM criteria.
This decision is final.11
The second telex was even more resolute in its intransigence:
If need for domestic is as critical as they wish us to believe difficult to understand
why they persist in sponsoring subject rather than someone qualified as domestic.
… Believe as stated in earlier telex offer of domestic position simply intended to
facilitate entry of subject and child to Canada. Do not believe applicant meets
FDM requirements … 1
After reviewing the evidence, the Court in Pinto observed that there was
no specific authority in the Immigration Act or the Immigration Regulations,
1978 for the selection criteria of the FDM program. The only relevant provi-
sions governing the withholding of employment authorizations were contained
in section 20 of the Immigration Regulations, 1978, which instructed an immi-
gration officer to reject a qualified applicant if it would adversely affect employ-
ment opportunities for Canadian citizens or permanent residents. It was not dis-
puted that Ms Quadros could not be disqualified on this basis.
Mackay J. found that Ms Quadros’ unique language skills, along with the
experience she acquired as a teacher and as a mother, should have counted
favourably in measuring her qualifications for the position of domestic worker.
The Court concluded that the visa officer unlawfully fettered his discretion by
using the FDM guidelines to hold Ms Quadros to a higher standard than
required under the Immigration Regulations, 1978 and ordered a reconsidera-
tion of her application. The necessary but tacit implication of the judgment in
’09The fact that she was related to her employer probably did not enhance her chances of suc-
cess. Though the judgment in Pinto is silent on this point, the Immigration Manual (Selection and
Control) explicitly instructs immigration officials to be leery of such applicants:
Some domestics may be destined to family members. The fact that the employer is a
relative should not preclude the domestic from participation in the FDM program. Pro-
vided the job offer is bona fide and both the domestic and the employer meet the
requirements of the program, the case should be facilitated. Nevertheless, officers
should be mindful of the potential for abuse and resultant damage to the integrity of
the program. For this reason, extra care should be taken to ensure that the employer’s
offer is bona fide and that the domestic has the necessary qualifications (supra, note
83 at IS 15.61(4)).
110Pinto, supra, note 106 at 625. It is curious that the visa officer refers disparagingly to the
applicant’s eventual desire to settle in Canada with her daughter, since the prospect of immigration
is the obvious incentive driving the FDM scheme.
n11bid. at 627.
McGILL LAW JOURATAL
(Vol. 37
Pinto is that the selection criteria for the FDM program were ultra vires to the
extent that they were more stringent than those contemplated under the statutory
requirements for employment authorizations issued to visitors.”‘
Job training and experience are not the only factors relevant under the
FDM program, as Delia discovered. After establishing her work history, the visa
officer tested her English language ability.’13 He next inquired into her back-
ground, education, whether she had ever been in debt, how she would handle
emergencies and what her ambitions were.”‘ He must have asked her a half
dozen times if she was married and if she had children. Delia was firm in her
denial though frankly, she wondered why it wasn’t apparent to visa officers that
women in her position were supporting dependants in the Philippines. If it
wasn’t children, it was parents, or siblings, or cousins… Why else would a 32
year old woman be moving half-way around the world to take care of someone
else’s household?
Though Delia was wrong in believing that having a husband and children
would automatically exclude her from the program, she was correct in her
understanding that it would disadvantage her. The Immigration Manual (Selec-
tion and Control) addresses the marital and familial status of the applicant in an
equivocal manner:
The fact that applicants may be married and/or have dependants should be consid-
ered in relation to their background and work history and the eventual self-
sufficiency of the family unit; however, applications should not be refused only on
the basis that the applicant has dependants.1 5
The policy leaves visa officers considerable latitude for interpretation.
Some women report being told openly by visa officers that married women
” 2The result in Pinto leaves unresolved whether Ms Quadros would receive an employment
authorization qua ordinary visitor, in which case she would have no opportunity to apply for landed
status from within Canada and little hope of ever being accepted as an independent immigrant
under the point system. The other option would be to admit her to the FDM program even though
she did not meet its requirements. In the former case, Ms Quadros would be relegated to the same
vulnerable position as the foreign domestic workers on employment visas between 1973 and 1981.
In the latter case, admission of Ms Quadros on the FDM program would eviscerate the govern-
ment’s own admission criteria under the FDM guidelines, leaving employers free to generate their
own individualized standards for foreign domestic workers. In the short term, the government
would cede control over the definition of a foreign domestic worker to Canadian employers. In the
long term, private citizens would effectively participate in selecting future immigrants to the extent
that many domestic workers ultimately apply for landed immigrant status. A third alternative
would be to admit Ms Quadros into Canada on an employment authorization and to allow her to
apply to the FDM program after completing one year of service. At this point, she would meet the
requirements of the program as far as job experience goes.
ll 3″The applicant must be able to communicate orally and in writing in either French or English”
(Immigration Manual (Selection and Control), supra, note 83 at IS 15.61(3)(d)).
114FDM candidates must be “resourceful, mature, stable and possess the initiative required to
deal with possible emergencies” (ibid. at IS 15.61(3)(e)). In Pinto, the visa officer recorded that
[w]hen asked what she might do in Canada three or four years from now if no longer
required by employer, she had no idea what she would do…. Subject fails current cri-
teria as set out in IS 15.61(3). As she failed to demonstrate motivation, resourcefulness
or initiative about any future ability to settle successfully in Canada [sic] (supra, note
106 at 625).
“5lbid. at IS 15.61(3)(f).
1992]
FOREIGN DOMESTIC WORKERS
and/or women with children were ineligible, contrary to the policy articulated
in the Immigration Manual (Selection and Control).116 Filipina domestic worker
Pura Velasco recalls the basis of her initial rejection from the FDM program:
“[The immigration officer] was telling me, ‘Your job wouldn’t be able to sup-
port your family.’ I agreed with her but I had no intention of bringing my chil-
dren at that time. I told her of my options, that maybe I could do better than
domestic work in the future.””17
Until recently, women like Delia who misrepresented their marital and/or
family status risked deportation upon discovery. In Re Fernandez”” an inquiry
under the Immigration Act was ordered to investigate the allegation that Ms Fer-
nandez, qua visitor, was in violation of section 27(2)(g), which states:
27(2) Where an immigration officer or peace officer is in possession of informa-
tion indicating that a person in Canada, other than a Canadian or a perma-
nent resident, is a person who
(g) came into Canada or remains in Canada with a false or improperly
obtained passport, visa or other document pertaining to that person’s
admission or by reason of any fraudulent or improper means or mis-
representation of any material fact, whether exercised or made by
himself or by any other person….
[emphasis added]
Like Delia, Ms Fernandez lied about her marital status to immigration
authorities when she applied from Singapore for admission under the FDM pro-
gram. She repeated the misrepresentation on a subsequent occasion when she
changed employers in Canada. She admitted that she did this because she feared
that the fact of being married might adversely affect her immigration status.
The adjudicator noted that nowhere in the Immigration Act or the Regula-
tions are spouses and/or dependants considered material to the assessment of
visitors;” 9 they are only germane to the evaluation of immigrants. Ms Fernan-
dez, however, had not yet made an application for landing and the inquiry was
premised on the government’s insistence that Ms Fernandez was a visitor, not
an immigrant. Consequently, Ms Fernandez could not be deported qua visitor
because of her misrepresentation with respect to marital status. Like Pinto, Fer-
nandez reveals the incoherence of the FDM program within the current
immigrant/visitor dichotomy established under the Immigration Act and the
Immigration Regulations, 1978. Unlike Pinto, the government has since moved
to close this loophole by making misrepresentation of marital status by foreign
domestic workers relevant only at the time of application for landing.”‘
Meanwhile, Delia passed her interview with her putative single, childless
status intact. After a lengthy and costly series of medical examinations, Delia
was called in once again and given an offer setting out the terms and conditions
6INTERCEDE, Report and Recommendations on the Foreign Domestic Movement Program
11
by Sedef Arat-Koc & Fely Villasin (Toronto: INTERCEDE, October 1990) [unpublished] (on file
with author) at 17 [hereinafter Report and Recommendations].
“‘Quoted in Flavelle, supra, note 5 at C-6.
“1(14 March 1989), Vancouver 9530-01-5955 (Bd Inquiry) [hereinafter Fernandez].
“19Ibid at 3.
12See infra, notes 251-53 and accompanying text.
REVUE DE DROIT DE McGILL
[Vol. 37
of employment. Her future employers had already filled out a description of her
duties. These included childcare, cooking and general housework. Once she
signed it, it would become their employer/employee agreement.’ Delia was
relieved when she saw the contract. It made working in Canada look “like
heaven” compared to what she was enduring in her present job.”z Five dollars
an hour (minus deductions for room and board) seemed like a good wage com-
pared to what she was earning in Singapore, though of course she was unfamil-
iar with the cost of living in Canada. The provision guaranteeing overtime after
40 hours per week was especially important to her, since she noticed that her
future employers expected her to be on duty from 8:00 a.m. to 6:30 p.m.
Delia was also pleased by the provision requiring her employers to grant
her $20.00 per month and a minimum of three hours off per week to put toward
upgrading courses.”2 Delia looked forward to an opportunity to upgrade her
skills. She was concerned that her teaching qualifications would not be recog-
nized in Canada and she certainly did not want to do domestic work forever.24
The other provision in the agreement that caught her attention stated that “[f]ail-
ure to honour the terms of this contract by the employer may result in the denial
of future requests” by the Canada Employment Centre. Delia was impressed
that the government took an interest in her employers’ compliance as well as her
own.
A few months after her interview she was informed of her acceptance into
the FDM program. She returned to the visa office and was issued a one-year
Employment Authorization permitting her to work as a live-in domestic worker
for her new Canadian employers. The document cost her $50, and was renew-
able for her second year. Eight months after her initial application, Delia was on
her way to Canada. Her new employers met her at the Vancouver airport…
IV. Home/Work: The Illusory Line
Why are [aliens] admitted? To free the citizens from hard and unpleasant work.
Then the state is like a family with live-in servants. That is not an attractive image,
for a family with live-in servants is –
inevitably, I think – a little tyranny. The
principles that rule in the household are those of kinship and love. They establish
the underlying pattern of mutuality and obligation, of authority and obedience.
121Employment Manual, supra, note 94 at EA 17.42(6)(b)(iii).
122One reason Filipina domestic workers choose Canada is to escape the horrendous working
conditions for them in the Middle East, Hong Kong and Singapore. “Before we come, the contract
which domestic workers think is a legal contract is heaven compared to wherever we are coming
from” (Banasen, supra, note 92). For a description of working conditions in Hong Kong, Singapore
and the Middle East, see J.Q. Maglipon, “In Hong Kong, ‘Filipino’ Means Maid” (1990) 5:36 The
[Manila] Sunday Inquirer Magazine 14; Patria Amor, “POEA in Quandary on Plight of Domes-
tics” (1990) Philippines Journal 1; L.T. Montreal, “For Better, For Worse: One Community’s
Adventures and Misadventures in the Land of the Petrodollar” (1990) 5:28 The [Manila] Sunday
Inquirer Magazine 8.
lr3his is another “boiler plate” provision inserted in the agreement by Employment and Immi-
gration (Employment Manual, supra, note 94 at EA 17.42(6)(b)).
124Educational attainments from non-Western universities are frequently discounted (see Roxana
Ng & Alma Estable, “Immigrant Women in the Labour Force: An Overview of Present Knowledge
and Research Gaps” (1987) 16:1 Resources for Feminist Research 29 at 30-31).
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FOREIGN DOMESTIC WORKERS
The servants have no proper place in that pattern, but they have to be assimilated
to it. Thus, in the pre-modern literature on family life, servants are commonly
described as children of a special sort: children, because they are subject to com-
mand; of a special sort, because they are not allowed to grow up. Parental author-
ity is asserted outside its sphere, over adult men and women who are not, and can
never be, full members of the family.
-Michael Walzerxrs
Whenever they want you to give your all in their favor or anyway to feel comfort-
able to do what they want you to do, they use the word “we are family.” That’s
the one I hate. “You are one of the family.” That’s not true. … If you’re one of the
family, do not let me eat after you.
-Joyce Miller, West Indian domestic worker’ 26
A. Outside the Nucleus/Inside the Cell
… Delia arrived on Sunday and began work on Monday. The baby was
almost four months old by the time Delia arrived and the woman had used up
her maternity leave. The woman was being pressured by her employer to return
to work, so Delia had to take over responsibility for the two children and the
house almost immediately. Over the weeks and months that followed, Delia
learned that life as a live-in domestic worker in Canada had less to do with
meeting the terms of her contract than with adapting her time, life and behaviour
to her employers’ schedule and lifestyle.
Delia’s situation was worse than some, better than others. 27 Her hours
were supposed to be 8:00 a.m. to 6:30 p.m., but she often worked 12 hours a
day, sometimes more.s Occasionally her employers worked late; other times
lsWalzer, supra, note 12 at 52-53.
126Shellee Colen, “‘Just a Little Respect:’ West Indian Domestic Workers in New York City”
in Elsa M. Chaney & Mary Garcia Castro, eds, Muchachas No More: Household Workers in Latin
America and the Caribbean (Philadelphia: Temple U. Press, 1989) 171 at 181.
127In making this assertion about the circumstances I construct around her, I rely not only on
anecdotal accounts of domestic workers’ experiences, but on statistics compiled by two domestic
worker advocacy groups, the West Coast DWA and Toronto’s INTERCEDE. West Coast DWA sent
out 300 questionnaires in the Vancouver area and received 62 replies (20.6%) describing 85 work
situations (some women had worked for more than one employer). Eighty-three percent of the
respondents were Filipino women. The results are set out in Summary of Results, supra, note 65.
INTERCEDE distributed an undisclosed number of surveys in Toronto and Guelph, Ontario, and
received 592 replies between November 1989 and June 1990. Their results are tabulated in Report
and Recommendations, supra, note 116. Ontario attracts the largest share of foreign domestic
workers in Canada (64%); British Columbia runs a distant second (12%) (ibid.).
128The average working day for the Vancouver domestic worker was 11.3 hours, or 56.5 hours
per five-day week (Summary of Results, ibid. at 7). Sixty five percent of the respondents in the
INTERCEDE survey worked more than the legislated provincial standard 44 hour work week.
Almost one quarter worked more than 50 hours weekly (Report and Recommendations, ibid at 6).
Anecdotal accounts by domestic workers frequently depict 14 to 16 hour work days. Rosita’s story
is not unusual:
An agency in the Philippines got me a job as a domestic worker with a family in North
Vancouver. I had to wear a uniform with a white apron. I worked from 5:30 in the
morning until 8 or 9 in the evening, seven days a week. If they were having a party,
I would have to work until 2 or 3 in the morning…. When I asked my employers for
a whole day off, they started to complain that I wasn’t doing my duties well enough
(Recommendations for Change, supra, note 84 at 5).
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they had social engagements. They just expected Delia to be there, though they
often neglected to inform her of their plans in advance. Here is how Julie, a
West Indian domestic worker, describes her schedule:
I’d say my day started at about 7:30 in the morning when the kids got up and I
would work until about 6:00 p.m. when my employers came home from work, but
that depended from day to day, because sometimes they came home later. They
just took it for granted that I didn’t have anyplace to go, even though they never
asked me if I had anywhere to go.’ 29
Here is how the situation looks from the employer’s perspective:
[B]oth husband and wife are out there supporting the mortgage and … have babies
as well. They all have to have a nanny or otherwise they can’t work. Either it’s
live-in or it’s live-out or it’s day-care … live-out costs more. The difference with
day-care is that nobody does your housework. You have to drop the kids off, and
you can’t be late coming home from the office or go and meet your husband for
dinner. You can phone your nanny and say we’re going to be an hour or two late
and would you please take care of the kiddies.130
It troubled Delia that she was perpetually on call. She could never really
make herself at home, knowing that at any moment she could be put to work.
If she happened to be home during her “off hours,” her employers thought noth-
ing of asking her to watch over the sleeping children or stay around to await
deliveries or repair persons.13′ They did not seem to regard this as work, judging
by the fact that they never paid her extra for her time. She heard that some
domestic workers spent their weekends and holidays elsewhere, 132 but she had
arrived only recently and did not know much about these arrangements. She
spent most of her weekends at home, at work, on call. 33
ibid. at 94.
See also B.C. Human Rights Coalition, Human Rights Newsletter (Winter 1990) at 5-7; Turrittin,
supra, note 39 at 101; Deborah Wilson, “Immigration Review Worries Domestic Workers” The
Globe & Mail (6 January 1990) A10.
129Silvera, supra, note 50 at 26. See also Primrose, a West Indian domestic worker, in Silvera,
130DeVan, supra, note 54 at 72.
131Some 46.6% of domestic workers reported being asked to undertake these responsibilities
during designated non-working hours. INTERCEDE records that “[o]ne common problem voiced
by live-in domestics to INTERCEDE counsellors has been the reluctance by employers to recog-
nize those activities or responsibilities which did not involve visible, tangible effort or drudgery
on the part of the domestic as real work” (Report and Recommendations, supra, note 116 at 6-7).
132Almost half of the live-in domestic workers surveyed by INTERCEDE had their own place
on weekends and holidays. Living-in full time (including weekends) was the least preferred
arrangement (15.4%); 46.7% preferred live-in/weekend out and 37.4% preferred live-out (ibid. at
4).
133Disregard of days off is a common complaint of live-in domestic workers. Guyanese domestic
worker Savitri recounted how her employers took advantage of her presence whenever possible:
The work is hard, and with both of the family I work with, there was always problems
when it comes to my days off. You know, just because you live in the house, they make
you work like a horse all the time. Once you stay in that house on your days off, you
know it’s trouble you calling down on yourself because they always going to call you
to come and do something for them. Little things that they could do for themselves,
they will call you to do, like getting a glass of water for them, when the kitchen so close
to the living room. But once they in front of the T.V. they don’t want to leave it. It is
really harassing, getting up and doing these things for them when I already work all
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FOREIGN DOMESTIC WORKERS
It seemed to Delia that her activities did not qualify as “real” work to her
employers – when she was playing with the children, she was doing “noth-
ing.”” ” Like Noreen, a West Indian domestic worker, Delia learned how “work
that isn’t seen isn’t valued, except when it isn’t done!”13
You know how housework is; you could tidy up the house and wash the dishes
twenty times a day. At the end of the day, especially with three growing boy child,
the house look like a hurricane pass through it, so when she is in a bad mood she
wants to know what I do all day.136
Hana Havlicek, employment agency operator and vice-president of the
Canadian Coalition for In-House Care advances the notion that domestic work-
ers are not really “at work” during the day:
Not every job can be measured by hours. You see, a live-in girl lives in a home.
It is different than a secretary who has to be on a job at 9:00 in the morning and
leaves at 5:00 with an hour for lunch. [The domestic worker] has time during the
day to write letters…. She has time to wash her hair, to do her personal laundry.
Therefore, she is not really on duty. 137
Between caring for a newborn, a toddler and doing most of the cleaning and
cooking, Delia certainly felt that she put in a full day. And she never had an hour
for lunch!.38
When she first arrived, Delia’s employers told her to make herself at home,
to think of herself as “one of the family.” She was not quite sure what that
meant. It did not mean dining with the family, even though it was she who usu-
ally cooked supper. She had to feed the baby while her employers ate, and settle
for whatever was left over. It certainly did not mean that she was trusted. Her
employers even refused to give her a set of house keys. If she went out on her
days off she had to wait outside until someone else arrived to let her in.139
day, but I just keep quiet. Right now I don’t even get my full days off. I am entitled
to two full days off, but instead, my employer told me that I must take two half days
off. I don’t say anything though, I just pretend that everything is fine (quoted in Silvera,
supra, note 50 at 46).
See also Silvera, ibid. at 84; Rachel Epstein, “I thought there was no more slavery in Canada!”
(1980) 2 Canadian Woman Studies 22 at 26; Recommendations for Change, supra, note 84 at 5.
1340ne domestic expressed how her employer viewed some of the work she did: “When I am
playing with the child, I am doing nothing!” See Report and Recommendations, supra, note 116
at 7.
135Sheila Neysmith, “From Community Care to a Social Model of Care” in Carol T. Baines,
Patricia M. Evans & Sheila M. Neysmith, eds, Women’s Caring: Feminist Perspectives on Social
Welfare (Toronto: McClelland & Stewart, 1991) 272 at 293.
136Noreen, quoted in Silvera, supra, note 50 at 17.
137″Living on the Job,” supra, note 58.
138″I didn’t even have time to eat my lunch and dinner,” said domestic worker Angelina (quoted
in Peter Howell, “Domestics Tell of Abuses Endured in Canadian Homes” The Toronto Star (12
March 1989) C20 [hereinafter “Domestics Tell of Abuses”]).
139This incident is described in Human Rights Newsletter, supra, note 128 at 6. Another domes-
tic worker described how her employer would carry her purse with her from room to room.
Remarked thewoman ruefully, “no wonder if I’d pay someone as little as she pays me I’d also hold
on to my purse” (Cohen, supra, note 92 at 37). Cohen also notes another study in which almost
all domestic workers interviewed reported that they were tested by their employers for honesty
with money (ibid.). See also Evelyn Nakano Glenn, “A Belated Industry Revisited: Domestic Ser-
REVUE DE DROIT DE McGILL
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Being “like one of the family” also did not mean that her employers dis-
played any interest or concern in her welfare. They did not ask if she was home-
sick or inquire into how she was adapting to Canada. 4′ She did not have to
worry about concealing her family or marital status because her employers
rarely asked about her life in the Philippines. It was as if they did not want to
acknowledge that she had a family and an identity completely unconnected to
them.141
Indeed, just as her work often went unnoticed by her employers, so too did
Delia feel ignored. Her employers would carry on conversations around her as
if she was not there.142 Often her male employer would even walk around the
vice Among Japanese-American Women” in Anne Statham, Eleanor Miller & Hans Mauksch, eds,
The Worth of Women’s Work (Albany: SUNY Press, 1988) 57 at 69-70; Shellee Colen & Roger San-
jek, “At Work in Homes II: Directions” in Shellee Colen & Roger Sanjek, At Work in Homes:
Household Workers in World Perspective [unpublished] (on file with author) 1 at 10-11. Angelina,
a Filipina domestic worker, left her employer after he had her charged with theft of a bottle of nail
polish remover. The charge was later dropped (“Domestics Tell of Abuses,” ibid.).
140Eldecka, a West Indian domestic worker, commented, “You tell them you don’t know anyone
thinking they’re going to help you, but they have no feeling toward you whatsoever” (quoted in
Aitken, supra, note 102 at 406).
‘ 41In her study of relations between domestic workers and employers in Bogota, Colombia, Ber-
tha Quintero comments on the possessive attitude employers take toward domestic workers: “The
attempt is made, although not always in a direct manner, to have the woman who works as a live-in
domestic break all affective ties to her former life and become the property of her new family”
(quoted in Mary Garcia Castro, “What is Bought and Sold in Domestic Service?” in Chancy & Gar-
cia Castro, supra, note 126, 105 at 119). Rosanne Hertz also notes that young immigrant women
were “highly desirable” to American employers in the first half of the twentieth century because
“they did not have local kinship ties of their own that could foster dual loyalties” (More Equal
Than Others: Women and Men in Dual-Career Marriages (Berkeley: U. California Press, 1986)
at 162).
Helen, a white American woman working as a live-out domestic worker, describes her
employers’ casual disregard for the life and identity that exists independent of them:
I come over there every day. When they go away, I stay. They’ve given me a room.
They say I can live with them. They mean to be nice, but I get upset. They don’t stop
and think that I have a family, too. Yes, they ‘know’ I have a family, but they don’t
want to remind themselves of what they know, because they really would prefer that
I live with them. They’ve been telling me for years that I should ‘stay over,’ and they’d
pay me more. I say I’d love to do it, but I can’t. What about my daughter? What about
my son? They remind me that my mother is there to take care of my children; but I
am their mother (quoted in Robert Coles & Jane Hallowell Coles, Women of Crisis
(New York: Delacorte Press, 1978) at 236).
142See Cohen, supra, note 92 at 38. Sometimes employers physically erase domestic workers.
In one incident related to me, a Scottish nanny was ordered not to sit in the family room after work-
ing hours. In another, the domestic worker, whose bedroom was in the basement, was actually
locked out of the upper floors of the house (including the kitchen) on weekends. Requiring the
domestic worker to eat in a separate room or at a different time reinforces her separate and unequal
status. Colen and Sanjek observe that:
Household workers must operate within a different social geography of the home from
those who live, not work, there. As several studies show, household workers are
restricted in where they may eat, sleep, rest, and use toilet facilities; they may work in
some places within the home, but not sit down or even speak there. This geography is
also time-linked: there are times when household workers may be in certain spaces
within the home, or may eat with household members; and there are other times when
they may not (supra, note 139 at 7).
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FOREIGN DOMESTIC WORKERS
house in nothing but his underwear. This made her extremely uncomfortable.143
Her female employer noticed Delia’s uneasiness once and commented “Oh,
Delia, don’t be so skittish. We’re all family.” Delia smiled nervously and said
nothing. The man did not notice Delia’s reaction. Delia finally realized that he
was completely oblivious to her presence. Delia was certain that the situation
would have been quite different had it been her wandering about in her under-
wear, or lying on the couch watching TV in the evening, or eating the food she
liked,'” or taking her meals in the dining room, or doing many of the other
things that “one of the family” did.
Delia’s experience is typical of domestic workers. Writing about domestic
service in nineteenth-century America, historian David Katzman explains:
One peculiar and most degrading aspect of domestic service was the requisite of
invisibility. The ideal servant as servant (as opposed to servant as a status symbol
for the employer) would be invisible and silent, responsive to demands but deaf
to gossip, household chatter, and conflicts, attentive to the needs of mistress and
master but blind to their faults, sensitive to the moods and whims of those around
them but undemanding of family warmth, love and security.1 45
A parallel analysis of invisibility also applies to relations between domi-
nant and subordinate racial groups.146 Clearly, the invisibility of the servant and
the invisibility of the oppressed race converge and are mutually reinforced
where the servant class is comprised primarily of people of colour. In reference
to Afro-American domestic workers, Judith Rollins posits that:
[T]hough the mechanism [of invisibility] is functioning at all times when whites
and people of color interact in this society, it takes on an exaggerated form
when the person of color also holds a low status occupational and gender position
–
an unfortunate convergence of statuses for the black female domestic ser-
vant. 147
143This incident, as reported in Report and Recommendations, supra, note 116 at 9, raises the
matter in the context of possible sexual harassment. My analysis is not intended to detract from
such a characterization of the incident.
144Many domestic workers are dissatisfied with the quality and quantity of food they eat. Norma,
a Filipina domestic worker, described her experience:
My employers didn’t give me enough food. They even counted the cans in the kitchen.
I was not allowed to eat the same food they did, and I had to eat my dinner when I
finished work at 8 or 9 in the evening. When I asked for some meat and fish like I used
to eat in the Philippines, my employers bought me pig’s feet and herring. That year I
went from 120 pounds to 97 pounds. I started to gain weight when my employers let
me out to go to church on Sundays. After church I would go and buy meat with my
salary (quoted in Recommendations for Change, supra, note 84 at 9).
INTERCEDE interviewed a number of domestic workers who complained of inadequate diets
for various reasons. “In all these cases,” INTERCEDE concluded, “the domestic went half-hungry,
ate food she did not like or was forced to undergo double expenses for food – being automatically
deducted fixed amounts for her board and buying it outside” (Report and Recommendations, supra,
note 116 at 9-10). See also Silvera, supra, note 50 at 84; “Domestics Tell of Abuses,” supra, note
138.
145Quoted in Judith Rollins, Between Women: Domestics and Their Employers (Philadelphia:
Temple U. Press, 1985) at 210.
146Ibid at 210-11.
147Ibid. at 212.
McGILL LAW JOURNAL
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Add to this the invisibility of her labour qua woman’s work, her legal invisibil-
ity qua domestic worker, and Delia becomes a veritable non-entity in the coun-
try and the household in which she works and resides.
Invisibility had its advantages though, especially with respect to her male
employer. Aside from his habits of undress, Delia’s male employer seemed
fairly benign. He did not “tease” her, touch her, wink at her or make insinuating
remarks about “those girls in Manila.” She had heard of other women being
harassed and even raped by their employers,”” so on the whole she thought she
was better off being ignored by him.
While both INTERCEDE and West Coast DWA deal with disclosures of
harassment and sexual abuse by domestic workers, the real extent of the abuse
is difficult to gauge.’49 Knowing that women generally under-report incidents of
harassment and abuse, one can only speculate that foreign domestic workers
tend to be especially reticent. At the very least, there can be little doubt that
live-in domestic workers are more vulnerable to sexual abuse and harassment
by virtue of having to live on the premises. The risk escalates if the employer
148West Indian domestic worker Hyacinth describes how her white employer raped her soon
after she arrived:
He tried to push me down on the bed but I wouldn’t let him, and he had his hand over
my mouth so I couldn’t scream. … I remember him telling me that if I had sex with
him he would raise my pay. I tell him that I couldn’t do that because he was married
and his wife was upstairs. … He laugh and ask me what Black girls know about mar-
riage. … Is like it was the end of the world for me. I was so frightened … he was blow-
ing so hard, so I could smell the alcohol strong on him. … After he finish he jump off
me, spit on the floor and tell me if I tell his wife or anybody he would see that they
send me back to St. Lucia or that I go to jail. I was really frightened. … It happened
again seven or eight other times. I was just scared to say anything to anybody, further
I didn’t know where to turn to. I didn’t know anybody here (quoted in Silvera, supra,
note 50 at 56).
Here is what happened when she returned to her employer’s house:
When I go in I get one big cussing from his wife. She call me ungrateful-jealous-slut-
black-bitch. I can’t even remember some of the words…. Before I know it his wife just
come into my room, open the door without knocking and started slapping me up, telling
me that is me bring sex argument to her husband, and that we “nigger girls” are good
for nothing else, and asking me if I like it when her husband have sex with me. I was
crying the whole time, because I wasn’t used to this treatment. Then she tell me I had
to leave her house. So I pack up my little things and went and stay with my friend (ibid.
at 57).
Hyacinth’s ordeal is virtually indistinguishable from slaveowners’ practice of raping Black
women slaves in antebellum America, where slaveowners’ wives refused to recognize the practice
for what it was, or tacitly endorsed it as preferable to their husbands having “affairs” with white
women (see bell hooks, Ain’t I a Woman: Black Women and Feminism (Boston: South End Press,
1981) at 57); for a recent case, see Rollins, supra, note 145 at 151 (director of support and training
program for domestic workers in 1970’s calls employer about sexual harassment by husband): “So
we called this woman, now this is a prominent Bostonian, mind you, and we explained the prob-
lem. And you know what she said? ‘What do you think I brought her up here for?’ I was shocked.
We got her out of there, found something else for her.”
’49Felicita Villasin, Director of INTERCEDE, stated in a television interview that INTERCEDE
had received at least five reports of sexual abuse from members in 1989 (“Living on the Job,”
supra, note 58).
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FOREIGN DOMESTIC WORKERS
is a single male. Thus, many women try to avoid working for a single man or
in an environment where a single man is frequently present.150
Occasionally her employers did involve Delia in family outings, like going
to the zoo or a movie with the children. Even when they involved her in these
activities though, Delia felt that she was still “on duty.” For example, they occa-
sionally invited her to accompany them for dinner at friends’ homes. They
expected her to serve dinner there, too.”‘ They once offered to take her with
them on a long weekend camping trip, but she declined because she feared that
her employers would have a holiday and she would end up doing all the work. 52
The couple went on the camping trip without her, but left the children with her
for three days.153
As long as she was in their home or in their presence, she was never simply
Delia; she was always Delia-the-domestic, ready and available for work. l 4
Around her own family and friends, Delia could be quite lively and assertive,
but she noticed that her employers had a way of staring coldly at her when she
initiated conversations or disagreed (even mildly) with something they said. Her
opinions were neither solicited nor welcomed. They liked her to be quiet, obe-
dient and deferential –
so she was.155
“discreet” –
Like Gail, a West Indian domestic worker, Delia began to feel that her
identity had become little more than a projection of her employers’ definition
of her:
The man was nice too, but still, I always feel very uncomfortable because the
woman had this attitude that you-are-here-to-be-a-servant. Let’s face it. They are
151:
150See Epstein, supra, note 133 at 26; Cohen, supra, note 92 at 37; Rollins, supra, note 145 at
[TIoday, live-in domestics are increasingly immigrants (particularly from the Carib-
bean and Latin America) and sometimes illegal. The material desperation and precar-
ious status of such women make them especially vulnerable to material and sexual
exploitation. While using domestics sexually has never been as pervasive in [the United
States] as in nineteenth-century England or contemporary Latin America, my research
indicates this unspoken problem nevertheless does exist and is widespread enough for
all of the domestics I interviewed to give it as this reason for now avoiding male
employers.
151Anecdote reported by Rosita, a Filipina domestic worker in Recommendations for Change,
supra, note 84 at 5.
‘5 2In other instances’ the domestic worker will be invited to accompany her employers on a hol-
iday, only to spend the whole vacation caring for the children. See for example, Primrose, quoted
in Silvera, supra, note 50 at 91-93.
153Forty-six percent of respondents in the West Coast DWA survey had been left alone to care
154Garcia Castro, supra, note 141 at 122.
155Rollins observes that:
for the house and children for more than 24 hours (Summary of Results, supra, note 65 at 7).
Ingratiating behavior has been displayed by many categories of subordinate people
because of dominant groups’ desire for it. Domestic servants, Afro-Americans, and
women are three such groups that have been encouraged to incorporate ingratiation into
their encounters with employers, whites, and men, respectively (supra, note 145 at
168).
Rollins explains how domestic workers self-consciously treat deference as another requirement of
the job.
REVUE DE DROIT DE McGILL
[Vol. 37
white elite and I is Black. So I was treated as know-your-place-you-are-here-to-
do-this-and-that’s-all-there-is-to-it. But it’s hard to tell yourself, “I am only here
to do this” –
domestic work – when really I am living here twenty-four hours
a day. I feel as if this is my home. It is my home, this is where I live. It’s not like
I come to work for them and then evening time I leave and go home. When you
are living with them, they make you feel as if you really don’t belong, and where
the devil do you really belong? It’s a funny thing to happen to us, because it make
us feel like we don’t know if we coming or going. 15
Social scientist Mary Garcia Castro captures domestic workers’ perception
of their ascriptive status in her observation about domestic service in Bogota:
[w]hat is bought and sold in domestic service is not simply the labor power of the
empleada or her productive work or energy; it is her identity as a person. This is
the most specific feature of domestic service. 157
Delia yearned for the opportunity to just “be herself’ –
speak her own lan-
guage once in a while, eat the food she liked, spend time among friends. What
with her long hours and erratic schedule, she found little time to socialize, to be
just Delia instead of Delia-the-domestic. Though her employers said nothing
explicitly, Delia felt uncomfortable inviting one of her few acquaintances over
to visit, even in her own room. a5 ‘ After all, they gave her dirty looks when she
spent more than five minutes on the phone speaking to a friend.’59
Being like “one of the family” did seem to mean that she did not get much
privacy. Like most domestic workers, Delia did have a room of her own.16 A
few are less fortunate, and may be compelled to share a room with the children,
give up their room for house guests, or sleep on the floor in the laundry room. 6′
Two West Indian women describe their experiences:
While I was there I had to share my room with the six-year-old boy. The little one-
year-old girl had a bedroom by herself, but I had to share with the six-year-old son.
They never told me this before they hired me. And they never told me why. The
same day I went there to work they showed me the room and said that I had to
share. I never had any kind of privacy at all, but I didn’t want to go back to Immi-
gration again because I was afraid they would get fed up with me.162
–
156Gail, quoted in Silvera, supra, note 50 at 98.
157Supra, note 141 at 122.
t58See Cohen, supra, note 92 at 36; Molly, quoted in Silvera, supra, note 50 at 70. The live-in
requirement effectively precludes the possibility of sexual relationships. I am unaware of any views
domestic workers have expressed about this particular feature of the live-in situation, though one
employer threatened her Filipina domestic worker with deportation if she “socialized with men”
(Recommendations for Change, supra, note 84 at 5).
159Many domestic workers complain that their mail is screened and their telephone access mon-
itored, or even restricted (Cohen, ibid. at 37).
16According to the West Coast DWA, over 90% of the workers surveyed had their own bed-
room, though barely half had a private bathroom as well. The quality of the room provided is
unregulated and can vary enormously, from a private suite with kitchen facilities to a laundry room
with no door (Summary of Results, supra, note 65 at 4). In the West Coast DWA survey, 8.5%
reported sleeping arrangements ranging from shared rooms, a room in the basement with no door,
a “guest room” that had to be given up when guests stayed over, and the laundry room (ibid. at
4). See also Report and Recommendations, supra, note 116 at 9-10.
161Epstein, supra, note 46 at 226; Recommendations for Change, supra, note 84 at 7.
162Julie, a West Indian domestic worker, quoted in Silvera, supra, note 50 at 26.
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FOREIGN DOMESTIC WORKERS
The employer wanted me to come in and take the job the next day. She wanted
me to come and meet the lady who was leaving, to show me what to do. She told
me that the last domestic, who was a White lady, didn’t want to stay in the base-
ment, so her son gave her his room upstairs on the first floor and the son took the
basement. Well, if I take the job, I will have to go in the basement, and give back
her son his first floor. So I said, if I was White, I could have continued with the
upstairs room but because I am Black I have to go down in the basement.163
Like most domestic workers, however, Delia did not have a lock on her
door. It was not so much that she was concerned for her personal security, like
some domestic workers;1″ rather, it was a question of privacy. Unlike some
other domestic workers, she had no particular reason to suspect her employers
of snooping in her room or reading her mail1″ but, like other employers, they
certainly did not hesitate to enter whenever she was there:
Once they finished the basement I moved downstairs to my new room but still the
children were in my room day and night. Sometimes I felt like locking my door
but there was no lock…. They had always reasons to come in and ask me to do
things for them even on my days off.
1 6 6
Delia eventually discerned that she was most like “one of the family” when
her employers wanted her to do something for them that would be a gross impo-
sition on a person who was considered a mere employee. This phenomenon is
also noted in the research of anthropologist Shellee Colen, who observes that,
“[flamily ideology, sometimes used to explain why people have to sacrifice for
one another, is turned around to induce people who are not in the family to do
things that may be exploitative.”167
Delia had her own family in the Philippines, and she knew the difference
between making sacrifices for the sake of one’s own family and being manip-
ulated for the sake of another’s. Though she liked the employers’ children, she
‘ 63Epstein, supra, note 133 at 26; see also Cohen, supra, note 92 at 36.
1640ne woman reported piling suitcases and furniture up against her door at night lest someone
try to enter while she was asleep (Report and Recommendations, supra, note 116 at 8).
165Conversely, Julie, a West Indian domestic worker, described how she kept a locked suitcase
containing her personal effects. One day she returned to find the lock ruptured. She discussed the
matter with her male employer. This is what ensued between her and her female employer:
The next morning she just never talked to me. It went on like that for an entire week.
I felt so alone and upset. … Well, about the second week she called me and said she
understood that my suitcase was broken into. I said yes, and she said how it is quite
funny and strange, and she wouldn’t like to think that I broke into my own things
and then try to say that it was her child who did it. I can’t describe to you how I felt,
I couldn’t believe what I was hearing. This was impossible, because the baby was about
one year old, and my suitcase had a lock on it, so it wouldn’t be the baby. She said it
wasn’t her and on and on.
After that day, if I even pick up as much as a cup, I always pick up the wrong thing.
Anything I did from that day on, it was wrong. Until one day she said to me I am not
the person she wanted to look after her child (quoted in Silvera, supra, note 50 at 25).
Another woman recounted an incident where her employer “confronted” her with a bag of fruit
she found in the domestic worker’s handbag which was in her bedroom (Cohen, supra, note 92
at 37).
166Cohen, ibid.
167Supra, note 126 at 184.
McGILL LAW JOURNAL
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found it draining to meet their constant physical and emotional demands. She
could not just care for them; she had to care about them as if they were her
own.”es The housework was endless, monotonous, and tiring. Juggling childcare,
housework, and cooking was stressful at the best of times, and the added burden
of being subject to someone else’s authority only compounded the strain.
Though she took pride in doing a good job, she was not labouring for love; she
was labouring for money.
Even her female employer seemed to forget this.169 Delia could sympathize
with Monica’s indignation:
Monica Cooper tells of her employers’ habit of undressing and leaving their
clothes on the floor where they step out of them instead of placing them in the
available hampers. Resenting this behavior, she once left the clothes on the floor
until the following day, staging a one-day strike. When she spoke with her
employer about it, Monica was told that it was part of the job; the employer
“always picked up after her husband … that’s the way he is, and she accepted him
like that. Since she doesn’t want to pick … up, I’m sure she hires somebody who
will pick … up for her.”170
Delia could hardly believe how her employers expected her to forsake her
own welfare for the good of their family. They actually tried to discourage her
from attending her evening courses, knowing full well that she would have to
upgrade her skills if she wanted to obtain landed immigrant status. “We need
someone who is committed to the family,” 71 they said. What that meant was
that they needed her to stay home every night in case they made other plans.
Finally, and most pointedly, there was the matter of her wages. Her
employer/employee agreement said she was entitled to overtime after 40 hours
of work per week. She never saw any of it. After she spent the long weekend
alone with the children, her employers promised to give her a few extra days off,
but whenever she reminded them, they told her it “wasn’t a good time for
them.” Her female employer did give her “gifts” in the form of old clothes that
she no longer wanted. The clothes did not fit Delia, and quite frankly she
16SBarbara Rothman describes the intense emotional labour required by a paid caregiver in addi-
tion to the manual tasks she performs:
6 9
1
To do such work … we must call forth the emotion from our very selves. To soothe a
child, it must feel cared for, nurtured, loved. To make the child feel that way, the care-
giver must act like she indeed loves the child. To act so convincingly –
and children
are a tough audience –
requires calling forth her own feelings of love, of tenderness
(Recreating Motherhood (New York: W.W. Norton, 1989) at 207).
As political scientist Sedef Arat-Koc explains:
Domestic labour is physical as well as mental and psychological work which sus-
tains the reproduction of labour power and the labour force. It is indispensable to the
functioning of the economy. However, intertwined as it is with intimate, personal rela-
tions, domestic labour is considered a ‘labour of love.’ As such, it is ideologically
invisible as a form of real work, a status that is hard to change even when it is paid
for [emphasis added] (supra, note 80 at 38).
170Colen, supra, note 126 at 183-84.
’71An employer related to me how, when she called an applicant’s former employer for a ref-
erence, she was told that the domestic worker was “not sufficiently committed to the family”
because she wanted evenings off to pursue her own interests.
1992]
FOREIGN DOMESTIC WORKERS
did not like them, but she sensed that her employer would be offended if she
refused.’ 72
In terms of real wages, Delia received $200.00 per week (the equivalent of
$5.00/hour for 40 hours) 7 minus deductions for room and board, income tax,
unemployment insurance and Canada Pension Plan. (Delia did not understand
why she had to pay into unemployment insurance or Canada Pension Plan, since
she knew she could be sent back to the Philippines if she had no job). 74 Her net
pay was around $135.00 per week, half of which she sent home to her family.
Delia figured that she worked an average of 60 hours per week. At the usual
overtime rate of time and a half, her employers owed her another $187.50 per
week less deductions.
B. The Employee Who is Not One
Delia did not know where to turn for help. A preliminary obstacle for Delia
was lack of information. When she registered her presence in Canada at the
local Canada Immigration Centre (CIC) a week after her arrival, she was too
disoriented to ask the right questions and the Immigration officer did not explain
anything to her. He just requested her Employment Authorization and referred
her to the local Canada Employment Centre (CEC) to learn about registering for
upgrading courses. She tentatively broached a few of her concerns with the
employment officer regarding the criteria for obtaining immigrant status, but the
officer just thrust a pamphlet entitled Domestic Work in Canada17
in her hand
and told her to return to the CIC because the CEC did not deal with immigration
matters. The first time she went to the CIC she had to line up for hours just to
get in the door. Where would she find time on a week-day to do that again? 76
Eight months earlier, when Delia’s employers arrived at the same CEC to
inquire about hiring a domestic worker, the officer provided them with an infor-
172See Glenn, supra, note 139 at 66; Rollins, supra, note 145 at 189-94. Some employers tacitly
or explicitly treat “gifts” of used clothing or leftover food as payment in kind (ibid.).
173Noreen, a West Indian domestic worker, describes how her employer did not even pay her the
minimum wage:
You know how much money I get? I shame to tell anyone, I don’t even tell my friends
for fear they laugh at me. I get $260.00 a month, she claim she take out money for my
food and board. I don’t question it though, because out of it I gets to send home a little
something for my two little ones. I just play dumb, for I know that I am suppose to
get around $500.00 a month by law, but I can’t afford to cause any disturbance now.
So I keep quiet (quoted in Silvera, supra, note 50 at 19).
See also Molly where the employer paid less than the minimum wage, saying that the domestic
worker was “on probation” for a year (ibid at 69); Lucy, a West Indian domestic worker, quoted
in Recommendations for Change, supra, note 84 at 3 (employer did not pay domestic worker at
all).
174Visitors cannot collect unemployment insurance or Canada Pension. If they become unem-
ployed, they must obtain another employment authorization for another job or leave the country.
Revenue Canada estimates that foreign domestic workers contributed over $11 million in Unem-
ployment Insurance and Canadian Pension Plan premiums between 1973 and 1979 (Arat-Koc,
supra, note 80 at 48-49).
175(Ottawa: Minister of Supply & Services Canada, 1989).
’76INTERCEDE reports eight hour line-ups at the Toronto CIC office. Domestic workers found
the office inaccessible by telephone (Report and Recommendations, supra, note 116 at 16).
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mation kit entitled Hiring Foreign Household Domestic Workers177 containing
material on wages, working conditions, deductions, employer obligations and
offices to contact with specific enquiries. No comparable kit exists for domestic
workers.
It would appear that employment agencies also do not go out of their way
to provide domestic workers with information or support. When Delia phoned
one to ask how to deal with her employers’ failure to abide by the terms of her
employer/employee agreement, the woman was polite and sympathetic, but ref-
used to intervene on Delia’s behalf. What the agencies knew and Delia did not
was that while her agreement guaranteed her $5.00/hour plus overtime, provin-
cial legislation mandated only $40.00/day regardless of hours.’78 The discrep-
ancy between provincial legislation in British Columbia and the employer/
employee agreement generates a false ambiguity regarding the rules meant to
govern wages and working conditions. Obviously, the provincial minimum
standards do not preclude employers from undertaking and being bound by
terms and conditions more favourable to domestic workers. Nevertheless, Van-
couver employment agencies seem unwilling to acknowledge employers’ con-
tractual obligations, as these remarks indicate:
it’s crazy –
We just tell the families that if you expect them to work over 40 hours give them
extra [money] or give them extra free time … um, it creates a lot of concerns for
families –
it’s really unclear. What was happening before (the new
employer/employee agreement) was that nannies were working 15 hours a day for
minimum wage [ie. the daily minimum wage of $40.00]. I think they brought the
new agreement in to change that … I don’t know if anyone enforces it. I’ve never
known a nanny to enforce it yet. No one really knows what to do.
vhen they sign the contract it tells them that they will be working so many hours.
If they get here and they get wise, and talk to their friends they can fight for (over-
time). Chances are they’ll lose their job and they’ll go look someplace else ’cause
the employers won’t want to pay it.
Manpower [Employment and Immigration] says domestics get overtime, but
you call the Department of Labour [British Columbia Ministry of Labour] … they
say they are not entitled to overtime pay. So there is some contradiction there….
It is usually a 9 or 10 hour (work)day. You just can’t get around that. I just say,
“well pay her a little more or give extra time off.” It is a give and take situation
… I feel in most cases that it evens out.179
According to the West Coast DWA survey, here is how it “evens out:” in
63% of employment situations, workers received no compensation whatsoever
for work in excess of eight hours daily. Delia falls into this category. Of those
who did receive payment, only one respondent, or 5.0%, received it at the rate
of time-and-a-half. The rest received the regular hourly rate, less than the hourly
rate, erratic payments that varied according to the employer’s whim, or time-off
in lieu of monetary compensation.i s8
177Employment Manual, supra, note 94 at EA 17.42(11)(a).
178See note 95ff and accompanying text.
179Quoted in DeVan, supra, note 54 at 76-77.
t8 0Summary of Results, supra, note 65 at 7-8. One worker actually received double time (ibid.
at 8).
1992]
FOREIGN DOMESTIC WORKERS
In theory, Delia’s counterparts in Ontario ought to benefit from their leg-
islated right to minimum wage and overtime, but in practice few fare better than
Delia. According to the INTERCEDE study, 44% of domestic workers received
no overtime compensation whatsoever. Twenty-two percent received payment
that amounted to less than their legal entitlement. A third received $7.50/hour
or the requisite time-off in lieu.18′
If employment agencies in Canada are diffident defenders of domestic
workers’ rights, it may be because they align themselves with their employer-
clients.” 2 Indeed, the two groups actively join forces in the Canadian Coalition
on In-Home Child and Domestic Care, a lobby group formed to promote their
common interests.
An additional source of some agencies’ indifference toward the plight of
domestic workers may be the duplicitous conduct of unscrupulous agencies
toward domestic workers, some of which Delia has experienced first-hand.
Fraudulent activities by agencies abroad and in Canada include bringing over
domestic workers for non-existent employers in order to have a “stable” of
women available in Canada who they can dispatch to clients on short notice;
counselling women in their overseas offices to misrepresent their marital status;
charging domestic workers illegal agency fees;183 attempting to bind the domes-
tic worker to their particular agency; and even requiring domestic workers to
sign a separate contract (in addition to the employer/employee agreement) that
typically stipulates longer hours, lower pay, and a certain number of nights of
“free” babysitting.1′ Although it is not suggested that most or all employers
deliberately misinform, mislead, or take advantage of domestic workers’ igno-
rance of their contractual duties and entitlements, it can hardly be gainsaid that
employers have no interest as a class in keeping domestic workers apprised of
their rights.
Advocacy groups working on behalf of domestic workers, such as Vancou-
ver’s West Coast DWA and Toronto’s INTERCEDE, 5 devote much of their
resources to supplying their clients with information about immigration and
8’lReport and Recommendations, supra, note 116 at 6. With respect to the option of overtime
pay versus time-off, 75% of respondents in the INTERCEDE survey who were compensated for
overtime work reported that their employer decided unilaterally what form the remuneration would
take (ibid. at n. 8). This presents particular problems for women like Delia, who send money back
to their families. The additional money earned from overtime may be more important to them than
the time-off.
182West Coast DWA reports that some agency agreements with employers provide that if the
domestic worker does not “work out” within three months, the agency will replace her at no addi-
tional charge to the employer.
183INTERCEDE, “Watch Out for Illegal Agency Fees” Domestics’ Cross-Cultural News (Feb-
mary 1991) 1.
lS’Recommendations for Change, supra, note 84 at 15-16. Pat Henry, Vice-President of the
Canadian Coalition for In-Home Child and Domestic Care, says that “cleaning up” the industry is
one of her association’s mandates (supra, note 88).
l85Similar organizations also exist in Montreal (Association du personnel domestique) and Win-
nipeg (The Mary Poppins Group).
McGILL LAW JOURNAL
[Vol. 37
employment standards.’86 In addition, the West Coast DWA recently published
a frank, thorough and accessible guide entitled Domestic Worker ‘ Handbook.”7
It contains information about the FDM program, requirements for landing, how
to change employers, labour standards, how to deal with government authori-
ties, and a directory of social service agencies. West Coast DWA has offered to
make the guides available to the government for distribution to applicants
abroad or newly arrived in Canada, but the response has been negative.s
Unfortunately, Delia has not heard of the West Coast DWA. Neither the
immigration officer, the employment officer, nor the recruitment agency men-
tioned it to her. She did decide to broach the subject of her wages with her
employers though. She approached the woman and pointed out that she and her
husband were not abiding by the employer/employee agreement. “Oh that,” the
woman replied, “that’s just a formality. The government doesn’t care what we
do as long as we sign the paper.”‘8 9 Besides, she added, she and her husband
were mortgaged to the hilt, the economy was in a slump, and Delia was being
plain unreasonable if she thought she should be paid overtime every time she
wiped a runny nose or washed a dish in the evening. Furthermore, she should
be grateful to them for bringing her to Canada. Didn’t she know they could have
her deported?
Delia retreated. She was terrified of being deported.”9 Still, she could
hardly believe that the contract was meaningless. Certainly nobody told her that
when she signed it!’ 9′ Her worst fears were confirmed when she finally found
the time to go to the CIC.
The officer tried to explain to her how impractical it would be to turn the
agreement into a legal contract. A household cannot be run like a factory, after
all. It was more like a family, where everyone makes a few compromises and
takes care of one another. Every employer and domestic worker ought to have
l’5 lNTERCEDE reports that 59% of its services are expended on immigration-related activities
and 32% involve employment standards (INTERCEDE, Report to the 1990 Annual General Meet-
ing by Felicita Villasin (Toronto: INTERCEDE, December 1990) [unpublished] at 11 (covering the
period January-December 1989 and January-September 1990)). West Coast DWA estimates that
75% of the requests it receives are for general immigration and employment information (Recom-
mendations for Change, supra, note 84 at 3).
187Kyong-ae Kim, Domestic Worker’s Handbook (Vancouver: Legal Services Society of
B.C./West Coast Domestic Workers Association, 1990).
188Interview with Lois Shelton, staff lawyer, West Coast DWA (25 January 1991) Vancouver.
189
She knew exactly what I supposed to get, right, but she never paid it. When I had
the second extension [of the employment authorization], I said to her, ‘How come you
never mention to me about the salary at the Manpower Department?’ and she said,
“Well, they don’t care about what you pay once you put what they want on the form”
(quoted in Epstein, supra, note 133 at 25).
“9Employers do threaten domestic workers with deportation for “causing trouble” and many
domestic workers believe them (Seward & McDade, supra, note 55 at 45). See also Silvera, supra,
note 50, passim; “Domestics Tell of Abuses,” supra, note 138. As Walzer observes of guest work-
ers, “[d]eparture is only a formal option; deportation, a continuous practical threat” (supra, note
12 at 59).
191″Slave labor exists … I thought I signed a real contract in Switzerland,” said former domestic
worker Silvia Tobler (quoted in Mia Stainsby, “Powerless: The Plight Facing Foreign Domestic
Workers in B.C.” Vancouver Sun (10 November 1989)).
1992]
FOREIGN DOMESTIC WORKERS
the flexibility to work out their own best arrangement without worrying about
the government or the courts invading people’s private lives. In any case, if she
was really upset she should contact the Employment Standards Branch of the
provincial Ministry of Labour.
The enforceability of the employer/employee agreement has never been
subject to court challenge. For its part, Employment and Immigration will
investigate situations where the domestic worker is accused of misconduct or
failure to perform her duties. If an immigration officer decides to conduct an
inquiry and makes an adverse finding, the domestic worker may be deported.”9
Conversely, the government has never yet enforced the provision of the agree-
ment stating that employers will be denied future requests for domestic workers
if they do not abide by the terms of the contract. 93
Treating the employer/employee agreement as merely hortatory is
defended by Laura Chapman, Director of Immigration Policy for Employment
and Immigration, who insists that “[i]f there are concerns about wages, or con-
cerns about problems with working conditions, then there are provincial labour
codes and those can be used to defend someone. ‘ 194
Delia was too demoralized and bewildered to take any interest in the vagar-
ies of federal/provincial jurisdiction. She never did contact the Employment
Standards Branch, but it would hardly have mattered if she did, given the min-
imal protection guaranteed to her under the British Columbia Employment
Standards Act.” Had she been in Ontario she would have been legally entitled
to more, but in practice few Ontario domestic workers lodge formal complaints
with the provincial Employment Standards Branch. 96 There are at least two rea-
192The Immigration Manual (Examination and Enforcement) instructs immigration officers to
investigate domestic workers dismissed for serious reasons (for example, child abuse, theft, gross
neglect, etc.) and to take action requiring the domestic worker to depart Canada “if on balance it
is concluded that there are legitimate reasons not to allow the domestic to continue to work within
the context of the program” ((Ottawa: Minister of Supply & Services Canada, 1984) at IE
9.16(7)(d) (the IE (Examination and Enforcement) portion of the Immigration Manual contains
guidelines and procedures dealing with port of entry examination of all persons seeking to enter
Canada as immigrants, visitors, or refugees. It also contains information dealing with the various
enforcement processes (investigation and arrest, inquiry, detention and removal)).
Khan v. Canada (Minister of Employment andImmigration) (1989), [1990] 1 F.C. 30, 30 F.T.R.
161 [hereinafter cited to F.T.R.], illustrates a case where the Federal Court found that investigators
“wielded their formidable state power too callously” against a domestic worker (ibid. at 167).
Immigration officials suspected Ms Khan, a Trinidadian domestic worker, of working in a house-
hold that was not the place of residence she had given immigration authorities (i.e. “living-out”).
Immigration officials exercised their statutory discretion to arrest and detain where “the person
poses a danger to the public or would not otherwise appear for the inquiry or for removal from
Canada.” Though she was detained only briefly, the Court was satisfied that the entire procedure
was callous and unnecessary given other alternatives open to immigration authorities. Ms Khan
was eight months pregnant at the time.
193Interview with Barbara Stewart, Canada Employment and Immigration Commission (Policy
Branch) (2 May 1991) Ottawa. The government’s position is that the Immigration Act confers no
authority on officials to deny requests by Canadian employers.
194Quoted in “Living on the Job,” supra, note 58.
19sS.B.C. 1980, c. 10.
196Supra, note 187 at 10.
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[Vol. 37
sons why a foreign domestic worker may be reluctant to do so, according to
Suzanne Silk-Klein, Director of Policy for the Ontario Ministry of Labour. First,
domestic workers “often come from countries where they have no reason at all
to trust government officials.” ‘197 Second, like most other employees, domestic
workers do not typically lodge complaints about an extant employment situa-
tion198 because of the strain it adds to an already tense working environment.
The stress is exacerbated in the domestic context because of the live-in require-
ment. As Silk-Klein concedes:
How can you go on working? How can you go on living side-by-side with some-
body when you’ve suddenly appeared on opposite sides of a referee. … very few
of us live and work in the same place and far fewer of us work in the employer’s
house. They can’t get away from each other. It’s a very difficult relationship. 199
C. Changing Employers
Delia’s employment situation did not improve. When she described her cir-
cumstances to another domestic worker she met in the park, the other nodded
sympathetically and related her own experience:
Every day and every night I prayed to God to get me out of that house. My room
in the basement was so cold that I had to sleep with my clothes on to keep warm.
I didn’t know that I could change employers.2
00
Neither did Delia. Before she came to Canada, she heard a rumour that any
domestic worker who quit her first employer in the first year would be
deported.”1 She knew of a similar “one year rule” in Hong Kong, and she didn’t
want to take any chances. 202
Though the FDM scheme permits domestic workers to change employers,
they cannot do so at will. Unlike ordinary workers, Delia must first present
grounds that will satisfy an immigration officer that she is entitled to seek
another position. The Immigration Manual (Examination and Enforcement)
states that a domestic worker may change employers for various reasons: eco-
nomic improvement, personality clash with the employer, breach of the
employer/employee agreement by the employer, or “if either one does not live
up to the other’s expectations.””2 3 Immigration officers are instructed that
refusal to issue the domestic worker a new employment authorization should be
based on “evidence of an inability or unwillingness to perform satisfactorily, of
misconduct or of gross incompetence on the part of the domestic. ‘ ‘2’ A finding
197Quoted in “Living on the Job,” supra, note 58.
198lnterview with Suzanne Silk Klein, Ontario Ministry of Labour (Policy) (16 October 1990)
199Quoted in “Living on the Job,” supra, note 58.
20 Judith, a Filipina domestic worker, quoted in Recommendations for Change, supra, note 84
Toronto.
at 11.
201This rumour was reported to INTERCEDE by several domestic workers in Toronto (Report
and Recommendations, supra, note 116 at 15).
22Domestic workers in Hong Kong are not permitted to leave their first employer until comple-
tion of one year of service (Aguilar, supra, note 64 at 10).
203Supra, note 192 at IE 9.16(7)(a).
1id.b at IE 9.16(7)(c).
1992]
FOREIGN DOMESTIC WORKERS
of this nature may in turn form the basis of an inquiry leading to deportation
proceedings, though this rarely happens at present.
Government control over domestic workers’ mobility is subject to three
possible justifications. First, a domestic worker is not the best judge of her own
best interests. That is to say, she should be satisfied with her present job, even
if she is not. Second, the best interests of the domestic worker should be sub-
ordinated to employers’ need for employee stability. Third, the government has
a legitimate interest in monitoring the movements of domestic workers in order
to deter fraudulent use of employment authorizations. The first reason smacks
of paternalism at its worst. The second violates the most basic precept of con-
tractual remedies, namely that compelling specific performance of a contract of
personal service is tantamount to enslavement. Finally, the governmental inter-
est in monitoring domestic workers may warrant some form of passive registra-
tion system; it cannot, however, justify endowing the government with authority
to decide whether a domestic worker can switch employers. Indeed, immigra-
tion officers have been known to actually deny permission to change employers
even where the decision to leave was mutual and the domestic worker already
had an offer from another employer. 5
A domestic worker who requests permission to change employers is usu-
ally asked to produce a “release letter” from her current employer commenting
on “the quality of the domestic’s work and the reason for leaving her employ-
ment. ‘””S Some employers resent a domestic worker’s decision to leave and sim-
ply refuse to proffer the letter. Filipina domestic worker Yolanda was threatened
with deportation when she requested a letter from her employer: “[t]hey said
they knew someone in Immigration,” 7 she related.
Delia did not realize that she needed a letter. In fact, when the immigration
officer asked her for it, she wondered silently why she had to be “released” –
what was she, a prisoner?”5 She explained as best she could why she wanted
to leave her present employers: they paid no overtime and she was always “on
call.” Not only did they refuse to contribute to her tuition fees for her evening
course, they expected her to miss classes when they scheduled an engagement
for the same night.
The officer listened to her reasons, picked up the phone, and called her
employers to get their side of the story. He hung up the phone, turned to Delia
and reported that her employers called her lazy and uncommitted to the family.
They also suspected her of stealing from them, and were thinking of firing her
anyway. Delia fiercely denied the accusations, to which the officer replied,
‘ 05Recommendations for Change, supra, note 84 at 12.
206 mmigration Manual (Examination and Enforcement), supra, note 192 at IE 9.16(7)(b). The
title has recently been changed to “letter of reference,” but the connotations of bondage remain
apposite.
27Quoted in Stainsby, supra, note 191.
28One of the placards carried by domestic workers in the 1989 International Women’s bay
Parade in Toronto read “We’re not prisoners. We don’t need to be released” (“Living On the Job,”
supra, note 58).
McGILL LAW JOURNAL
[Vol. 37
“[w]hy should I believe a foreigner over two Canadian citizens?”2” In the end,
he grudgingly acceded to her request to change employers though he warned her
that if she did not secure another position quickly, she might jeopardize her
immigration status. He was clearly disgruntled, however, and he admonished
her to try harder next time if she hoped to remain in the country.
It has been almost two months now since Delia found another job with
Mary and Dan, a young couple who seem much more considerate than her pre-
vious employers. Her days off are respected (she now goes away for the week-
end as often as possible) and they are generally supportive of her educational
pursuits, except this last week when they asked her to work late. … She hopes
things work out with them, because she is worried that she cannot afford to
switch employers again.
When a domestic worker applies for landed immigrant status, she must
produce a satisfactory employment record to Immigration authorities. Having
more than three employers in two years may jeopardize a domestic worker’s
chances of success. This is the perception of domestic workers themselves and
of the organizations that assist them.21 One horror story reported in the press
concerned a woman who had changed employers three times and who was
warned by an immigration officer that she would have to leave Canada if she
switched employers again. On the first day with her fourth employer, she was
raped. She endured continued abuse for four months for fear of being ejected
from the country if she tried to switch employers again.2
It is much easier to blame domestic workers for creating the bad employ-
ment relationships that precipitate their departure than to confront the possibil-
ity that the inherent conditions of live-in domestic work potentiate exploita-
tion.212 In theory, the ability of a domestic worker to quit should help to balance
2gUnidentified immigration officer quoted in Recommendations for Change, supra, note 84 at
16; INTERCEDE also reports bias against domestic workers’ credibility (Report and Recommen-
dations, supra, note 116 at 17). In a similar vein, bell hooks describes an incident in the early twen-
tieth century wherein a young, newly married Black woman employed as a cook testified in court
that she was dismissed because she spumed the husband’s sexual demands. The husband denied
the accusation. The judge remarked that “[t]his court will never take the word of a nigger against
the word of a white man” (supra, note 148 at 56-57).
21Report and Recommendations, supra, note 116 at 12; Kim, supra, note 187 at 208.
21 Supra, note 6.
2121 adopt here the definition of exploitation provided by Iris M. Young as “the domination [that]
occurs through a steady process of the transfer of the results of labour of some people to benefit
others” (“Five Faces of Oppression” in Iris M. Young, ed., Justice and the Politics of Difference
(Princeton: Princeton U. Press, 1990) 39 at 49). Young goes on to give an account of exploitation
generally as well as gender and race-specific exploitation (ibid. at 48-53). The former consists of
the unacknowledged and/or undercompensated physical and emotional energy traditionally
expended by women to benefit others, usually men. Young locates race-specific exploitation in,
inter alia, the institution of “menial” labour and notes that “[w]herever there is racism, there is the
assumption, more or less enforced, that members of the oppressed racial groups are or ought to
be servants of those, or some of those, in the privileged group” (ibid. at 52).
If the relation of domestic worker to employer is intrinsically exploitative, it is of no particular
moral consequence whether she consents at the outset to her wages and working conditions
because she prefers them to her available alternatives. Though I make an argument to that effect
in my conclusion, I believe it is possible to rest a narrower and perhaps less contentious claim of
1992]
FOREIGN DOMESTIC WORKERS
bargaining power between employer and employee. After all, parents who sud-
denly find their domestic worker gone are in a very difficult situation. Unless
they can hire a foreign domestic worker already in Canada, they face a delay of
anywhere from two months to almost two years in order to sponsor another.’ 3
Furthermore, parents entrust domestic workers that which is most precious to
and they often fear that high turnover among childcare
them –
providers will be detrimental to their childrens’ development. Finally, training
a new domestic worker can be stressful, disruptive and costly to the mother,
who is usually the one to take time out of her work to do it. As one woman
employer declares:
their children –
While I’ve never developed an ulcer over work, I’m on my way to one over house-
keepers. I think about housekeepers all the time. There has not been a day since
Jean was born that I don’t have insecurities about losing help.214
In practice, however, insecurities about the loss of adequate childcare have
not translated into systemic amelioration of wages and working conditions of
domestic workers. Conversely, legitimate apprehension of “hassles” with Immi-
gration authorities does substantially constrain the exercise of a domestic wor-
ker’s power to transfer her services to another employer. Employers know this,
and so do the agencies:
The chances of having them fill their contractual obligations are much better, uh,
the Filipino and Jamaican women, because most of them, 99.99% of them are
working towards a future in Canada. They will be more loyal and more conscien-
tious. 215
The recruitment agency casts the issue in terms of the domestic worker’s fidel-
ity; it might be more aptly framed as an issue of her exploitability.
Mary Banasen, a Filipina ex-domestic worker and current activist with the
West Coast DWA acknowledges that the acculturation of Filipino women dis-
courages them from challenging employers’ authority. In her view however, fear
of jeopardizing one’s immigration status is the dominant factor constraining the
Filipina domestic worker’s assertion of her rights.21 The same is true for West
Indian domestic worker Hyacinth:
Right now I get $710.00 month, which is what I am suppose to get as Manpower
say. But when I took the job, I wasn’t told that I was suppose to clean and wash
clothes too for that money. I am afraid to go and complain to Manpower, because
this is my third job, and they watch this sort of thing, maybe if I go and complain
exploitation on the fact that many domestic workers do not even receive the benefits of the
employer/employee agreement to which they putatively consented, and are essentially paralysed
by their precarious immigration status from asserting their rights. Surely this state-induced vulner-
ability undermines any presumption of voluntary and meaningful consent.
213lmmigration advises prospective employers that the wait varies from 2-4 months for a West-
em European to 18-20 months for a Filipino (Canada Employment and Immigration Commission,
Domestic Application Kit (Ottawa: Minister of Supply & Services Canada, 1990)). One belea-
guered mother began the sponsorship process as soon as she discovered her pregnancy. Three
months after the birth, the domestic worker still had not arrived. See supra, note 5.
214Hertz, supra, note 141 at 176.
215DeVan, supra, note 54 at 89.
216Supra, note 92.
REVUE DE DROIT DE McGILL
[Vol. 37
they might tell me to go home. They might think I am a trouble-maker. I am just
sticking it out till I get my landed.217
Racism certainly shapes the expression and extent of exploitation of
women of colour. As suggested earlier, Filipino and West Indian women are
often worked harder and longer than white women for the same monthly salary,
which effectively depresses the hourly wage of women of colour. Overt racism
emerges in remarks, gestures and the particularity of sexual abuse endured.
Banasen cautions, however, that white domestic workers are also vulnerable to
exploitation, given the nature of the live-in situation. That is to say, employers
frequently attempt to take advantage of white domestic workers, though the
absence of a racist “spin” may effect both the manner and intensity of the sub-
ordination. In Banasen’s view, the paramount reason why women of colour suf-
fer the worst abuse is that white women are proportionately less likely to be
interested in immigrating, and therefore, less inclined to tolerate mistreat-
ment.21s
Those responsible for the FDM program and for enforcement of employ-
ment standards legislation may reply that the rules contained in the employer/
employee agreement or the applicable employment standards legislation express
the aspirations and best intentions of policy makers with respect to the treatment
of foreign domestic workers. When the government abstains from intervention
in the “private” realm of the family (either through the absence of substantive
protection or lack of enforcement) however, existing power relations are repro-
duced and reinforced. Battered women know this all too well. In the case of the
foreign domestic worker, the definition of the household as “private” is even
more problematic; it is, after all, her workplace. As such, it is a site of wage
labour transactions and should be well within the parameters of state regulation.
Privileging a definition of the household as an affective family unit (which is
its primary characteristic from the employer’s perspective) as opposed to a locus
of market transactions (which is its most salient feature to a domestic worker)
effectively denies the domestic worker her identity as a worker and the legis-
lated protections that normally attend that designation.
In addition to playing out on the “public/private dimension” (or, to be more
specific, the market/family distinction),219 the rationale for excluding domestic
workers from basic worker protections reverberates along the alien/citizen axis.
Sedef Arat-Koc argues that “separation of people into ‘citizen’ and ‘non-citizen’
categories, into ‘insiders’ (to whom rights apply) and ‘outsiders,’ serves to legit-
217Quoted in Silvera, supra, note 50 at 59.
218Supra, note 92. Domestic workers in South America and Britain are primarily drawn from the
majority race (often from rural or economically depressed regions), and there is no question that
they too are subordinated, exploited and oppressed. See Chaney & Castro, supra, note 126 passim
(domestic workers in Latin America and the Caribbean); “Nannies are ‘Slave Labour’ to the Rich”
The [London] Independent (5 January 1990) A6; Thomson Prentice, “Business Couples Underpay
their Nannies and Cleaners” The [London] Times (5 January 1990) 7 (abuse of domestic workers
from Northern England who migrate to homes in the more affluent south).
219For the classic elaboration of the market/family dichotomy, see Frances Olsen, “The Family
and the Market: A Study of Ideology and Legal Reform” (1983) 96 Harvard L. Rev. 1497.
1992]
FOREIGN DOMESTIC WORKERS
imize inferior conditions and lesser rights for the latter group.”‘
In other
words, domestic workers are especially exploitable at least partly because they
are disenfranchised, and their disenfranchised status operates in turn to facilitate
their exploitation.
The exclusion of domestic workers from the body politic is not a new phe-
nomenon. Native-born domestic servants were denied the franchise in western
Europe until the late nineteenth to early twentieth century on the grounds that
“anyone in this dependent child-like employment was not a responsible adult,
hence any extension of suffrage to them would merely reinforce the political
power of the established elites.””2 Today, their exclusion emanates from a dif-
ferent source, but the effect is the same.
As the foregoing discussion suggests, most domestic workers have mini-
mal entitlements and are effectively discouraged from asserting what few rights
they do have. Professor Martha Minow asserts that this pattern challenges us to
reassess the genuine purpose of the laws at issue:
When the unenforceability of a norm stems from the burdens it places on those
supposed to enforce it, a problem in implementation – or a problem in the feature
of the design itself –
emerges. Either way, enforcement difficulties modify the
norm and point toward the real meaning of the law. 2 2
In the case of the FDM program, the real meaning of the law appears to
be that employers may exploit domestic workers with impunity, though the gov-
ernment prefers that they behave otherwise. Christina Davidson, adviser to the
West Coast DWA, puts it this way:
It’s not that all employers are mean, nasty, dirty, evil people in comparison to
lovely domestic workers. The point is, the way the system is set up, it’s very easy
to abuse domestic workers because they are in a powerless position.Y
That many (perhaps most) employers choose not to mistreat their domestic
workers does not negate the availability of the option. Seen in this light, the
claim by Nadine Gomm of Employment and Immigration that she receives few
complaints from domestic workers because “most are happy with their situa-
tions”” 4 rings hollow.
V. The Price of Membership
I just hope that my landed come through soon. You know sometimes I feel like a
slave, sometimes I dream about freedom. You know, I wish I could move where
I want to, work in whichever job I want, and have a little apartment of my own.
-Noreen, a West Indian domestic worker 2
5
2
22Supra, note 80 at 48.
221Theresa McBride, The Domestic Revolution (New York: Holmes & Meier, 1976) at 56.
222Book Review of The Civil Rights Society: The Social Construction of Victims by Kristin
Bumiller (1988) 43 U. Miami L. Rev. 493 at 496.
223Quoted in Stainsby, supra, note 191.
2241bid. Ms Gomm admitted that no records of employee complaints were kept.
2 5Quoted in Silvera, supra, note 50 at 20.
McGILL LAW JOURNAL
[Vol. 37
After completing two years of live-in domestic work, Delia will be eligible
to apply for landed immigrant status from within Canada.” 6 She will be
assessed by a CIC officer whose discretion to recommend in favour of landed
status is guided by the following policy objective:
The Foreign Domestic program is premised on a two-year assessment period
which provides an opportunity for candidates to work in Canada and to upgrade
their skills. Provided the foreign domestic appears able to establish in Canada, is
not inadmissible and has provided satisfactory service while in Canada, a positive
recommendation should be made.227
In order to succeed, Delia must know what is expected of her and how well
she is progressing. Ignorance will cost her more than back wages and overtime;
it may cost her her future in Canada. In Aboc v. Canada (Minister of Employ-
ment and Immigration),’
immigration officials gave the applicant no explana-
tion of the FDM program requirements when she entered Canada, made nega-
tive interim assessments which were not communicated to her, and ultimately
rejected her application for landed immigrant status. Jerome J. rebuked the
respondent for its callous treatment of the applicant, noting that at no time was
she informed of “what she had a right to expect in terms of upgrading herself
in the foreign domestic programme.” He went on to say:
Certainly, if she was not given even this most fundamental information, there
couldn’t be any pretence that she was counselled. It is obvious and it is admitted
that counselling to assist her to achieve, to put together a programme of self-
sufficiency, is an essential and very important element of the programme. There
could never be even the slightest pretence that she was given anything in the
nature of counselling that would qualify to fulfil that programme obligation. 229
Inadequacy of official information and orientation services persists.'”
Delia’s best hope for obtaining accurate information is still through informal
friendship networks and community organizations.
While each domestic worker may be assessed by an immigration officer at
the end of her first year, the Immigration Manual (Examination and Enforce-
ment) instructs officers that a “first year assessment is to be conducted only
where the immigration officer has evidence that work performance is unsatis-
factory; adverse information has come to the attention of the immigration offi-
cer; or the employee is not living in the same residence as the employer.””
Since the criteria for obtaining permanent residence are broader than these three
factors, a domestic worker may have her first year assessment waived even in
circumstances where she would benefit from counselling for immigration
purposes.
226the domestic worker must also pay a non-refundable fee of $125.00 for an application for
permanent residence.
227Immigration Manual (Examination and Enforcement), supra, note 192 at IE 9.06(5).
228(1987), 7 F.T.R. 236 [hereinafter Aboc].
229Ibid. at 236. See also Sharma v. Canada (Minister of Employment and Immigration) (29 May
1985) T-40-85 (Fed. T.D.); De Gala v. Canada (Minister of Employment and hnmigration) (1987),
8 FT.R. 179; Karim v. Canada (Minister of Employment and Immigration) (1988), 21 F.T.R. 237,
6 Imm. L.R. (2d) 32.
23Report and Recommendations, supra, note 116 at 15.
231Supra, note 192 at IE 9.16(3)(a).
1992]
FOREIGN DOMESTIC WORKERS
When conducting the second year assessment, Immigration officers are
instructed to consider seven factors in determining whether a foreign domestic
worker “has, or is reasonably likely to become successfully established and self-
sufficient.” 2 The first is a satisfactory employment history as a domestic
worker. I have already alluded to the pressures exerted on domestic workers by
the dim view Immigration takes of women who have had more than three
3 The second is language proficiency; although this is a criterion for
employers. 2
3
entry in the first instance, progress is regarded “as a significant indicator of
actual or potential successful establishment.””
The third factor is financial security. Domestic workers are “expected to be
capable of managing their financial situation,” 5 taking into account their earn-
ings, expenses, financial responsibilities toward dependants and possible assist-
ance from relatives in Canada. What this means in practice is that domestic
workers should be able to show a balanced budget and savings in the bank.
Between sending money home to relatives and paying foreign student fees for
her upgrading courses, a woman in Delia’s position will find it extremely dif-
ficult to accumulate savings out of her minimum wage. InAboc, Jerome J. noted
that the applicant’s ability to save any money at all was commendable and rather
remarkable:
I really wonder how many skilled workers in Canada can claim that they have sav-
ings that aren’t under attack from the credit card companies. She has some money
in the bank. It doesn’t matter how much it is, she has some.23 6
Skills upgrading is one of the most critical aspects of the evaluation.
Although it was once mandatory that domestic workers enrol in training courses
while in Canada, the government now equivocates on the question of whether
domestic workers must upgrade. 7 InAboc, Jerome J. admitted that he could not
2321bid. at IE 9.16(3)(e), App. C.
233Supra, notes 210, 211, 217 and accompanying text.
2341mmigration Manual (Examination and Enforcement), supra, note 192 at IE 9.16(3)(e), App.
C.
235lbid.
236Supra, note 228 at 238.
23T7he Immigration Manual (Examination and Enforcement) suggests that skills upgrading is
optional:
Of significance under this factor is whether the domestic has successfully completed
any skill upgrading or training courses during the period of stay in Canada when it was
advised that such was necessary during the counselling interviews. Such courses may
be as a result of formal employer/employee agreements or undertaken at the initiative
of the domestic. It will be expected that such courses would result in an improvement
in the domestic’s ability to perform the duties of the current occupation; however, the
development or upgrading of non-related or latent skills should also be acknowledged,
particularly as they may relate to alternate employment which may be pursued in the
future. The successful completion of any such course should be documented by pres-
entation of certificates or attendance records. Of course, the above is based on the
assumption that upgrading was required. It may very well be that the person’s quali-
fications were initially strong enough that the requirements for landing can be met
without specific upgrading [emphasis added] (supra, note 192 at IE 9.16(3)(e), App.
C).
But see the Employment Manual, supra, note 94 at EA 17.42(5)(b):
REVUE DE DROIT DE McGILL
[Vol. 37
discern the government’s position, and worried that “[i]f I am left in some
uncertainty … surely the programme itself, must recognize that it will be infi-
nitely more puzzling to the very kind of person the programme is designed to
attract.”2s
The government’s equivocation is easily fathomed. On the one hand, it is
politically unwise for the government to admit to employers that its own criteria
for landing compel domestic workers to learn another marketable skill,” since
employers express genuine consternation at the rate at which domestic workers
exit the occupation as soon as practicable. On the other hand, since domestic
work is generally a dead end, low paying job, the prospects of becoming eco-
nomically self-sufficient as a domestic worker, particularly if one has depend-
ants, seems rather slim.24 Above all, the government has no interest in granting
permanent resident status to persons who it believes will be unable to support
themselves and will consequently make demands on the state’s resources. Thus,
even domestic workers who genuinely enjoy their work are best advised to learn
another occupation.
Though the government may dither on paper, in practice its priorities are
clear. Failure to upgrade job skills was cited as a factor for each domestic
worker rejected for landed status in Ontario between June 1987 and May 1988.
In addition, immigration officials who give a domestic worker a negative
assessment on her initial application for landed status will often grant her a
year’s probation for the express purpose of upgrading her skills. Finally, lack of
skills upgrade also figured prominently in adverse decisions subsequently chal-
lenged in court.”
The overarching requirement of self-sufficiency belies the government’s
claim that upgrading is not necessary. The message conveyed by government
policy in action is this: domestic work is good enough for “outsiders,” but if a
foreign domestic worker wants a chance to become an “insider,” she had better
prove that she can do something other than domestic work. Thus, the rallying
cry “good enough to work, good enough to stay” is as piquant today as it was
in the period leading up to the advent of the FDM program. In a real sense, it
is not domestic workers who are being permitted to land in Canada. It is women
Domestics who enter Canada as temporary foreign workers seeking to gain permanent
resident status are given the opportunity to gain permanent resident status after work-
ing in Canada for two years, provided they undertake sufficient training or upgrading
during those two years to enable them to successfully establish themselves in Cana-
da.
23SSupra, note 228 at 237.
239It is possible but peculiar for a domestic worker to take courses to upgrade her childcare skills.
First, she is presumed to have the requisite training and experience as a condition of entering the
FDM program. Secondly, it is unlikely that her improved skills would garner her a higher income,
or open up to her new career options.
240Most domestic workers are receptive to upgrading their skills, even though many of them are
highly educated. They do complain about the bonflicting pressures that employer demands and the
upgrading requirement exert upon them (Report and Recommendations, supra, note 116 at 13-14).
241These statistics on foreign domestics refused for landing are based on unofficial data collected
from the provinces by the Minister of Employment and Immigration (handwritten transcription on
file with author). See also cases cited supra, notes 228-29.
1992]
FOREIGN DOMESTIC WORKERS
who have been domestic workers but are about to become something else who
are allowed to cross that threshold.
The easy rejoinder is that Canada has no duty to accept those who will be
financial burdens on the state. There is something disingenuous, if not down-
right repugnant, about this argument. In a free market for labour, few people
would enter the occupation of live-in domestic work for the wages and working
conditions employers currently offer. The FDM scheme responds to this scarcity
by creating a population of women held captive in live-in domestic work by
their immigration status. This creates a buyers’ market and in turn artificially
depresses wages. When it comes time to evaluate these women as potential
members, the government then assesses them as poor candidates qua domestic
workers because the work they do is worth so little.
The implications of this attitude extend beyond the domestic workers
themselves and speak to the tehuous and contingent status of Canadian women
who do not work outside the home. Political theorist Carole Pateman argues that
civil society is constituted through and because of the relegation of women to
the domestic sphere. Central to her work is the thesis that the social contract is
predicated on women entering the marriage contract, the terms of which in turn
foreclose on women becoming parties to the former. 2 Women who fulfil the
traditional terms of the marriage contract by bearing and rearing children and
sustaining the household are thus barred from membership in civil society. The
exclusion of domestic workers as an occupational group from membership in
the Canadian polity stands as a sobering instantiation of her thesis. The Cana-
dian born housewife may never have occasion to question whether society
would welcome her as a member on the basis of the services she has to offer, 3
yet it is instructive to note that her skills and aptitudes would almost certainly
not get her past the threshold were she an external applicant. How meaningful
is the citizenship status of any housewife if foreign women who do similar work
for money are considered unworthy of membership?
The fifth factor relevant to an application for landing is labelled “social
adaptation.” This is meant to refer to the social integration of the domestic
worker into the larger community, as evinced by membership in “ethnic, cul-
tural, religious or recreational organizations” or, on a more personal level, the
development of an “interest in current events or development of a hobby, craft
or skill.”2′ As with skills upgrading, the difficulty with meeting this require-
242The Sexual Contract (Stanford: Stanford U. Press, 1988).
243Unless she divorces, that is and then attempts to enter the paid workforce. For a leading Amer-
ican study on the devastating economic consequences of divorce on women who worked primarily
or exclusively in the home, see Lenore Wertzman, The Divorce Revolution (New York: Collier
MacMillan, 1985).
2441mmigration Manual (Examination and Enforcement), supra, note 192 at IE 9.16(3)(e), App.
C. It is not always apparent to domestic workers what Immigration authorities expect of them,
however, as this excerpt illustrates:
Like the last time I went down to Immigration, they kept asking me if I belonged to
any church or group. I think they ask you those things because they want to know if
anything happens to you how you are going to manage. But a lot of girls are kind of
confused. Are we suppose to join groups or are we not suppose to? Some girls believe
McGILL LAW JOURNAL
[Vol. 37
ment is not resistance from domestic workers in principle, but rather the prob-
lem of securing enough free time to develop outside interests and contacts.
The sixth factor is “personal suitability.” 45 This nebulous requirement,
which also appears on the list of criteria relevant to admission to the FDM pro-
gram, denotes “adaptability, motivation, initiative, resourcefulness and other
similar qualities.” 6
The final factor is the existence of dependent family members:
A factor which must be considered in evaluating the prospect of successful estab-
lishment is the existence of dependent family members residing outside of Canada
who may be coming to Canada to join the applicant. The responsibilities which the
domestic will undertake with regard to accommodation, care and maintenance of
such dependent family members may be significant, particularly in the case of pro-,
spective immigrant spouses and minor children for which adequate maintenance
may be required. The admission of such dependants may have a negative impact
on the successful financial establishment of the domestic/sponsor; however, if
such dependants intend to immediately enter the labour force, this may be a pos-
itive influence on the domestic/sponsor’s establishment.247
This ambiguous guideline is the latest incarnation of a long series of immigra-
tion policies that will not countenance women as sole or primary heads of
households. The Caribbean Scheme of the 1950s and 1960s allowed women to
enter as immigrants as long as they were single and childless. The temporary
visa system between 1973 and 1981 allowed women to enter regardless of their
marital or family status but precluded them from immigrating. Immigration pol-
icy is premised on the notion that an independent immigrant is a man who spon-
sors his dependent wife and dependent children. The notion that the “normal”
family unit contains a non-working wife is grossly anachronistic in Canada; it
was never true for most women in LDCs.
s
In the notorious “Case of the Seven Jamaican Women,” immigration offi-
cials attempted in 1977 to deport domestic workers previously admitted as
landed immigrants pursuant to an agreement between the governments of
Jamaica and Canada.249 The grounds were that the women had misrepresented
if you join a group you might make it bad for yourself. They feel that maybe the Immi-
gration won’t like this (Molly, quoted in Silvera, supra, note 50 at 71).
245 lmmigration Manual (Examination and Enforcement), ibid.
246Ibid
2471Ibid
248Joycelin Massiah’s research describes how the legacy of slavery, the fluidity of family unions,
male migration in search of work and/or male unemployment have generated high levels of female
labour force participation and female headed households in the Caribbean. She suggests that Car-
ibbean womens’ combined domestic and wage earning roles are centuries old and not perceived
as contradictory (Women as Heads of Households in the Caribbean (Paris: Unesco, 1983) at 9-12);
See also Carole Yawney, “To Grow a Daughter: Cultural Liberation and the Dynamics of Oppres-
sion in Jamaica” in Angela Miles & Geraldine Finn, eds, Feminism in Canada: Front Pressure to
Politics (Montreal: Black Rose Books, 1982) 119 at 127-32).
249For various descriptions of the factual background of the saga, see Anne Bayefsky, “The
Jamaican Women Case and the Canadian Human Rights Act: Is Government Subject to the Prin-
ciple of Equal Opportunity?” (1980) 18 U.W.O. L. Rev. 461 at 467; Ronnie Leah & Gwen Morgan,
“Immigrant Women Fight Back: The Case of the Seven Jamaican Women” (1979) 7:3 Resources
1992]
FOREIGN DOMESTIC WORKERS
their marital and family status when applying to the program, a fact that was
revealed when they subsequently tried to sponsor their spouses and/or children.
At that time, a Manpower circular explicitly disqualified women who were mar-
ried and/or had dependent children from the program. Domestic workers were
the sole group of immigrants for whom existence of a spouse or dependants was
an automatic bar to entry.
The case drew the support of various organizations within and outside the
Black community, who united in protest against the racist and sexist policy of
the government toward domestic workers. The women attempted unsuccess-
fully to obtain an injunction against their deportation orders pending resolution
of their claims of discrimination under the Canadian Human Rights Act, but the
case was ultimately resolved when the Minister of Immigration publicly stated
that the women would receive sympathetic treatment if they applied to return to
Canada. A few months later, the women were re-admitted to Canada under
Minister’s Permits and eventually restored to their landed immigrant statusY
Given that the current FDM program preserves the incentive to conceal
marital and family commitments, the re-emergence of the same problem in
slightly varied legal garb is unremarkable. Following the 1989 decision in Fer-
nandez,2s’ the government modified its policy with respect to the deportation of
foreign domestic workers for misrepresentation of family/marital status. The
government’s current position is that marital and family status are still criteria
in the initial selection process, notwithstanding that these women are being
admitted as visitors. 2 However, misrepresentation with respect to the existence
of a husband or children will no longer be grounds for deportation while the for-
eign domestic worker is on an employment authorization. If she corrects her
misrepresentation before she applies for landed immigrant status, her applica-
tion will be considered on the ba’sis of the revised information. If she success-
fully obtains permanent residence without “coming clean,” she may subse-
quently be liable to deportation for making a material misrepresentation with
respect to her application for landing.”
On the advice of the employment agency, Delia did not disclose the exis-
tence of her husband and children. She now has two options: perpetuate the lie
and risk possible deportation afterwards for misrepresentation when she tries to
bring over her supposedly non-existent family, 4 or tell the truth when she
applies for landing and risk being rejected on the basis that she will be unable
to support her dependants.
for Feminist Research 23 at 23-24; Silvera, supra, note 50 at vi-viii. The accounts are not com-
pletely consistent, but the disparities are not significant for present purposes.
ibidL at 467.
‘Bayefsky,
251Supra, note 118.
252Supra, notes 115, 247 and accompanying text.
2 3Inmigration Act, supra, note 71, s. 27(1)(e).
254Apparently, immigration data banks are not infallible, and it is possible for a woman to suc-
cessfully sponsor her family without her earlier misrepresentation emerging. Furthermore, not all
immigration officers will ruthlessly seek deportation whenever it is legally possible (Telephone
interview with Barbara Stewart, Canada Employment and Immigration Commission (Policy
Branch) (5 April 1991) Ottawa).
REVUE DE DROIT DE McGILL
[Vol. 37
Melvina Scott chose the latter course. 5 She entered Canada in late 1981
on the claim that she had no children. A year later, she repeated the same claim
when applying to enter the newly instituted FDM program. In mid-1983, during
an assessment by an immigration officer, she admitted to having four children
and a common law spouse in Jamaica who she planned to marry. Immigration
authorities required her to formulate a plan demonstrating how she would “sup-
port four young children with no skills to fall back on.” 6 Early in 1984, her
application for permanent residence was provisionally approved. Then she dis-
closed the demise of the marriage plans, and also the existence of two more ado-
lescent children, but insisted that she had “no intention of sponsoring their entry
into Canada.” 7
Once it was established that she had four children and no man, Ms Scott’s
application for permanent resident status was rejected “for her failure to dem-
onstrate the necessary potential for self-establishment in Canada and to provide
for the dependent family members whom she intended to bring into Canada.””5
The Court was asked to rule on the fairness of her treatment by Immigration
officials and upheld the rejection of her application for permanent residence.
After almost five years in Canada of steady work and study to upgrade her
skills, Ms Scott was ordered to leave the country.
Doubtless the facts in Scott are unusual in that Ms Scott had many children,
and it is to be noted that she was provisionally approved on the basis that she
had four children and “intended marriage or at least the possibility of financial
assistance from her common law [sic] spouse.” 9 The question this case raises
is not whether the program criteria were applied fairly, but whether the program
criteria are fair. If Ms Scott was acceptable with four children, why was her
statement that she did not intend to sponsor the other two not given any weight?
In other words, was it necessary for Immigration officials to assume that she
would seize the first available opportunity to put herself in a situation where she
could not support herself and her family?”0 As one domestic worker stated
indignantly, “I supported five children before I came here, and I’ve supported
five children since I came here, and they want to know if I can manage on my
own?,,)26
Given the incentive structure of the FDM program, it is virtually inevitable
that some women would misrepresent the nature or extent of marital or familial
obligations. Unfortunately, no reliable estimates are available regarding the pro-
255Scott v. Canada (Minister of Employment and Immigration) (1986), 5 ET.R. 227 [hereinafter
Scott].2561bid at 228.
257Ibid
25’8IbidL at 229.
259IbiaL at 230.
2601t should be noted that the Immigration Act does, after all, provide for the removal of a per-
manent resident who “wilfully fails to support himself or any dependent member of his family in
Canada” (s. 27(1)(f)). It is not as if the government would have no remedy if Ms Scott did, in fact,
“wilfully” fail to support her dependants.
26’Quoted in Ramirez, supra, note 49 at 18.
1992]
FOREIGN DOMESTIC WORKERS
portion of women who are landed on the basis of the claim that they are single
and/or childless.6 2
One effect of disclosure that has clearly emerged, however, is the inordi-
nate delay in the processing of applications for landing in these cases. Some
women wait over three years for a decision on their application. 63
If Delia is ultimately approved for landing, she may request a generic
employment authorization (i.e. an “open permit”) enabling her to leave domes-
In the meantime, the Immigra-
tic service and seek another job if she wishes.’
tion officer will process her landing under section 114(2) of the Immigration
Act.” s Section 114(2) grants authority to the Governor in Council 26′ to circum-
vent the point system devised pursuant to section 114(1) and admit’ 7 anyone on
an ad hoc basis commonly referred to as the compassionate and humanitarian
grounds exception:
The Governor in Council may by regulation exempt any person from any regula-
tion made under subsection (1) or otherwise facilitate the admission of any person
where the Governor in Council is satisfied that the person should be exempted
from that regulation or the person’s admission should be facilitated for reasons of
public policy or due to the existence of compassionate or humanitarian consider-
ations [emphasis added].
Though section 114(2) was originally intended to be an exceptional remedy for
isolated cases, it has come to be the standard statutory route to permanent res-
idence for thousands of foreign domestic workers in the absence of a regulation
formally exempting domestic workers from the point system method of
assessment.
If Delia someday achieves permanent resident status, she may apply to
sponsor family members. In the past, the sponsorship process was particularly
slow with respect to sponsors who were oi had been domestic workers, as immi-
gration officials doubled their ability to make adequate support arrangements
for their family. What this often meant in practice was a potential lag of many
years before a domestic worker could sponsor her entire family.6 Add to this
262INTERCEDE’s survey disclosed that a minority of women “felt pressure” to misrepresent
their marital status (8.5%) and the existence of dependants (5%) (Report and Recommendations,
supra, note 116 at 17). Immigration statistics cited by the West Coast DWA indicate that in 1988,
less than 8% of foreign domestic worker employment authorizations were issued to women who
listed themselves as “married” (Recommendations for Change, supra, note 84 at 16 n. 12).
263Banasen, supra, note 92. INTERCEDE reports ongoing delays of two years or longer (supra,
note 186 at 7, 10, 11).
264Imnigration Manual (Examination and Enforcement), supra, note 192 at IE 9.16(3)(g).
2651bid. at IE 9.16(3)(f)(ii).
266In practice, the authority rests with the Minister of Employment and Immigration. See Abd-
El-Razik v. Canada (Minister of Employment and Immigration) (1986), 5 F.T.R. 210.
267Meaning to grant entry or landing (Immigration Act, s. 2(1)).
268See Barbara Jackman, Immigration and Equality of Women [unpublished] (on file with
author) at 4. In order to sponsor a spouse and children, a woman had to meet a “low income cutoff’
guideline in order to satisfy immigration officials that she would be able to support her family. She
was not required to do so if she sponsored either her spouse or her children. This disparity is only
intelligible if one assumes that the spouse would not be employed and would therefore be a com-
plete financial dependant. This assumption seems unwarranted whether the spouse in question is
McGILL LAW JOURNAL
[Vol. 37
the two years of domestic work and any delay in the processing of applications
for landing, and the result was a family dismembered.269 The anguish and des-
peration experienced by Savitri, who had been separated from her family in the
West Indies for five years, finally erupted in her encounter with an Immigration
officer:
From I have been here, I never sick one day, I always at work, working for my
own bread. I couldn’t just sit quiet so I tell [the immigration officer] that I want
my children here with me, just like he and his wife have their family with them,
I tell him that we is not wild animal and that we know family life, too. Then I tell
him good day and walk out of his office :.. I don’t understand the Immigration, I
don’t know why they want to keep me away from my children and husband. They
just feel that we are going to be a burden to the government, which is not true.
Look how long I work in this country. Away from my family all this while and still
they want me to stay away from them.270
Recent changes to the Immigration Manual take more seriously the
“acknowledged humanitarian aspects of family reunification” and encourage
officers “not to refuse sponsored spouses and/or dependent children unless
arrangements for care and support are virtually non-existent and offer no pros-
pect of improvement. Refusals should be extremely rare if the sponsor is
employed, however marginally.”271 In light of these instructions to immigration
officers, Delia may look forward to reunion with her family sooner than many
of her predecessors.
VI. Strategies of Empowerment
You’re like chattel. I feel it’s not in accordance with what your country professes
–
democracy, liberty and freedom for all, and the same rights for other people.
-Pura Velasco, Filipina domestic worker 272
The market for guest workers, while free from the particular political constraints
of the domestic labour market, is not free from all political constraints. State
power plays a crucial role in its creation and then in the enforcement of its rules.
Without the denial of political rights and civil liberties and the everpresent threat
of deportation, the system would not work.
-Michael Walzer 273
Whatever gains domestic workers have made over the years as a group
have been accomplished largely outside the courts. Through their own grass-
male or female. Indeed, immigrant women show a higher rate of labour force participation than
Canadian women (Ng & Estable, supra, note 124 at 30).
269Some Jamaican-Canadian leaders in Toronto cite the lengthy period of family dislocation
imposed by immigration restrictions as one factor accounting for the criminal behaviour of some
young Jamaican males. According to Al Peabody, “[t]he women come here as domestics. Their
sons –
they’ve been separated five, seven, ten years – when they come up here, they’ve got a
rude boy [troublemaker].” Quoted in “Identifying the Problem” The Globe & Mail (13 July 1992)
Al at A7.
27Quoted in Silvera, supra, note 50 at 49.
271 nmigration Manual (Selection and Control), supra, note 83 at IS 2, 2.08 (12-91). The rel-
evant statutory provisions are Immigration Act, s. 19(1)(b) and Immigration Regulations, 1978, s.
6. 272Quoted in Flavelle, supra, note 5 at C5.
273Walzer, supra, note 12 at 58.
1992]
FOREIGN DOMESTIC WORKERS
roots organizing,274 they have formed a number of associations that have lobbied
vigorously and passionately against their conditions of oppression. That their
struggle has not engaged the legal establishment is hardly surprising considering
that lawyers are among the major employers of domestic workers. Though for-
ays into the legal arena have benefitted individual women victimized by a harsh
and hostile bureaucracy, 75 the structure of subordination has remained intact:
domestic workers continue to be deprived of basic employment rights in most
and deterred from exercising whatever rights they do have for fear
provinces’
of jeopardizing their precarious immigration status. 7 Immigration policy
makes self-sufficiency a pre-requisite for obtaining landed status, and immigra-
tion restrictions on job mobility ensure that domestic workers’ labour remains
so cheap that self-sufficiency is barely possible.7″ This in turn is used to justify
the exclusion of women with dependants.
Thinking about the contribution law might make towards empowering
domestic workers calls for a certain amount of circumspection. Listening to for-
eign domestic workers and taking their struggles seriously affects how we
approach our role as lawyers in this process and what battles we fight first.
INTERCEDE reports that approximately 70% of its counselling services to
domestic workers involve immigration matters 79 and that a plurality of domes-
tic workers surveyed identified immigration requirements for landed status as
their greatest source of anxiety.8″ Targeting immigration status as the primary
site of foreign domestic workers’ oppression for litigation purposes responds to
the concerns foreign domestic workers express. Immigration reform thus
becomes a precondition to the realization and vindication of all other rights.
These include statutory rights under employment standards, labour and work-
274For accounts of domestic workers’ organizing efforts, see Epstein, supra, note 46; Maria Wal-
Interviews with
lis & Wenona Giles, “Defining the Issues on Our Terms: Gender, Race and State –
Racial Minority Women” (1988) 17:3 Resources for Feminist Research 43.
Immigration regarding landed immigrant status is reviewable by certiorari.
275See cases cited and discussed supra, notes 228, 229. The decision made by Employment and
276Supra, note 95-97 and accompanying text. In 1983, the British Columbia Domestic Workers
Union unsuccessfully attempted to invoke s. 7 of the Charter to challenge the exclusion of domes-
tic workers from provincial minimum wage and overtime pay provisions (Domestic Workers Union
et aL v. A.G. British Columbia (1984), 1 D.L.R. (4th) 560 (B.C.S.C.), 84 C.L.L.C. para. 14,004).
In addition, Women’s Legal Education and Action Fund (LEAF), a legal advocacy organization
engaged in sex equality litigation, launched a Charter challenge in 1987 directed at improving
Ontario domestic workers’ protection under provincial legislation. The litigation was scuttled when
the government introduced reforms incorporating most (though not all) of LEAF’s objectives.
277As Carol Smart observes, more “rights” in law do not necessarily translate into “rights” in
life without the power to vindicate and enforce them. See Feminism and the Power of Law (Lon-
don: Routledge, 1989) c. 7.
278Parallels may be drawn to the situation of divorcing women, who are often expected to
become financially self-sufficient relatively soon after termination of the marriage. Unfortunately,
years of fulfilling a socially enforced role of traditional wife and mother will often render a woman
unable to achieve financial independence.
279Supra, note 186 at 10.
28Report and Recommendations, supra, note 116 at 13. Other possible answers to the INTER-
CEDE survey question included the live-in requirement and changing employers. Since both of
these are aspects of the regulation of foreign domestic workers’ immigration status, I suggest that
concerns related to immigration status may concern a majority of respondents.
REVUE DE DROIT DE McGILL
[Vol. 37
ers’ compensation legislation”‘ and contractual rights under the employer/
employee agreement. 2
The focus of this article has been to illustrate, in narrative form, how the
existing categories of immigrant/visitor and public/private cannot be mapped
onto the world inhabited by foreign domestic workers. If we are inattentive to
the implications of this dilemma and devise legal strategies designed to inte-
grate domestic workers into existing “insider” classifications, the price of fail-
ure may be to push domestic workers even further into the “outsider” category.
I believe the danger of such a simplistic approach is particularly acute in the
case of immigration status, as the next passage illustrates.
A. Litigation Strategy
I proceed from the conviction that domestic workers should be admitted as
independent immigrants. This would guarantee domestic workers the same job
mobility as other immigrants and enable them to sell their services in a free
labour market. To the extent that I have focused on the defects of the FDM pro-
gram, a frontal assault on the FDM program appears to be the optimal gambit.
From the standpoint of ordinary administrative law, the FDM program is
already on flimsy legal terrain. The judgment in Pinto suggests that the entry
qualifications under the FDM program are subordinate to the less stringent reg-
ulations governing the issuance of employment authorizations to visitors. 3 Fer-
nandez stands for the proposition that domestic workers cannot be deported qua
visitors for misrepresentation about matters immaterial to visitor status.2 Nei-
ther of these judgments detracts from the legal basis of the landing criteria of
the FDM, which is authorized under section 114(2) of the Immigration Act. Nor
can the FDM program be tackled on normative or substantive grounds via the
administrative route. Only a Charter challenge can accomplish this.
Assume one launches a frontal assault on the FDM program as a violation
of section 15 of the Charter. One leads evidence to prove how domestic workers
281Though I have focused on minimum wage and overtime, domestic workers are also excluded
from workers’ compensation and deprived of the right to organize in most provinces. I take these
as variations on the theme that the household is not a workplace and domestic workers are not
employees.
MOne potentially fruitful avenue of litigation that has not been considered is to go after the
government’s “hands off” approach to the fate of domestic workers at the hands of abusive employ-
ers. As noted earlier, despite the words of the employer/employee agreement to the effect that
“[f]ailure to honour the terms of this contract by the employer may result in the denial of future
requests,” as a matter of policy the government never refuse employers’ requests (supra, note 193).
West Coast DWA and INTERCEDE keep lists of “bad employers” who hire and mistreat one
domestic worker after another. These names are submitted periodically to the Canada Employment
Centres, since the government assiduously avoids keeping records of complaints by domestic
workers against specific employers. It may be worth considering bringing an action against a noto-
riously bad employer and against the government in tort for negligently exposing the plaintiff to
the predictable risk of abuse by repeatedly honouring the employer’s requests. Inspiration for this
approach is taken from the American strategy of suing the police for failing to intervene in bat-
tering situations. A finding of government liability in these circumstances might encourage it to
take more seriously the welfare of domestic workers and listen more attentively to their complaints.
283Supra, note 106.
284Supra, note 118.
1992]
FOREIGN DOMESTIC WORKERS
are systematically disadvantaged by the FDM program. Evidence is admitted to
prove that virtually all domestic workers are women, most are from LDCs and
most are women of colour. One explains how the section 15 grounds of sex,
race, ethnicity, and citizenship’ operate in concert as the basis of the oppres-
sion of foreign domestic workers. One demonstrates that the tenuous immigra-
tion status of the domestic worker, the bias against women with spouses and
children and the mandatory live-in proviso structure and perpetuate material
conditions of disadvantage. Any claim that the FDM scheme may be construed
as an “affirmative action” program by admitting otherwise inadmissible appli-
cants is successfully disputed. One points out that even in those few provinces
where domestic workers are included under employment standards legislation,
their structural vulnerability precludes them from complaining. Under the s. 1
argument, one would deny that the impact of the scheme on the lives of foreign
domestic workers can be justified in a free and democratic society by countering
that exploitation is hardly a fair price to pay for the mere chance of becoming
a citizen. One might even bite the bullet and deny that the program can be jus-
tified because it facilitates access by women employers to the workplace. Make
the heroic assumption that these arguments prevail in court. We win. What then?
Asking the court to replace the existing FDM program with a superior
scheme is beyond the range of constitutional remedies currently available in
Canada, even on the most generous interpretation of the courts’ remedial pow-
ers.2 6 Because the components of the program function as an integrated whole,
selective invalidation of the most egregious aspects of the FDM seems imprac-
ticable. The most likely remedy that would be granted under section 24 of the
Charter is simply striking down the FDM program in its entirety.
I
Such a result would leave present and future domestic workers in a painful
quandary. They would be forced to choose between the two existing legal cat-
egories under which they may enter and remain in Canada: visitor or immigrant.
The first option represents a retrograde move back to the situation of domestic
workers between 1973 and 1981, when they entered as visitors on employment
visas and had no hope of immigrating. The second option already exists; noth-
ing currently prevents a domestic worker from applying to enter Canada as an
independent immigrant except for the fact that she has virtually no chance of
success under the current point system. 7 In sum, a legal strategy that chooses
285Though citizenship is not an enumerated ground of discrimination under s. 15 of the Charter,
it was recognized in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 182-83,
56 D.L.R. (4th) 1.
286See R. v. Schachter (9 July 1992), [1992] S.C.J. No. 68 (QL).
287 “It is possible but unlikely [for foreign domestic workers] to qualify for permanent residence
at a post abroad under current selection criteria” (Employment Manual, supra, note 94 at EA
17.42(5)(a)) (supra, note 73 and accompanying text). Approximately 700-800 domestic workers
entered Canada as independent immigrants in 1990. This represents about 7% of the number admit-
ted under the FDM program. About half were destined for Quebec, which exercises considerable
autonomy over its immigrant selection process. Apparently, the government of Quebec has
received complaints from employers that domestic workers admitted as permanent residents were
leaving their positions very soon after arrival, sometimes in a matter of weeks. (Telephone inter-
view with Barbara Stewart, Canada Employment and Immigration Commission (Policy Branch)
(15 May 1991) Ottawa).
McGILL LAW JOURNAL
[Vol. 37
the FDM program as its primary target could have disastrous consequences for
domestic workers.
From a strategic perspective, a preferable approach would consist of chal-
lenging the point system as presently constituted as a manifestation of sex dis-
crimination, contrary to section 15 of the Charter. Proper analysis of such a
claim warrants an extensive and detailed examination that is beyond the scope
of this article.’
In brief, the basic contention would be that the point system
systematically devalues the skills required for domestic work because of its sta-
tus as “women’s work.” It does so by allotting very few points for the skill
required to perform childcare and domestic labour. “Skill” in this context is
measured in terms of “Specific Vocational Preparation” (SVP), expressed by the
length of formal training (including apprenticeship and on-the-job training)
required to acquire competence in the occupation. Domestic work typically
merits two out of a possible ten points for SVP, corresponding to a training
period of up to 30 days. 9
As pay equity proponents have demonstrated time and again, skill is in
large measure a socially constructed category.2 0 In particular, the skills
deployed in “women’s work” are disregarded, discounted, or denied because
they are treated as inherent to women and therefore not acquired abilities
deserving of recognition, much less compensation. When skill is measured by
formal training, “women’s work” will necessarily diminish in value precisely
because most women spend their girlhood in informal training for it. Traditional
skill evaluation methodologies (such as those employed in the immigration
point system) reproduce this sex bias.29′
The defect in the point system is not simply that it devalues the skills uti-
lized in domestic work, but also that it uses this determination to reduce or elim-
inate the points available to applicants under other criteria. Though skill is puta-
tively only one of ten categories2 2 of evaluation under the point system, many
288There are certainly litigation strategies other than the ones proposed hereunder. The argument
set out is my own, and does not represent any official position taken by any domestic workers
association.
at 361.
2gThe SVP score for every occupation is contained in the CCDO, 1986, supra, note 107, com-
piled by Employment and Immigration. The occupation of domestic work falls within six overlap-
ping and somewhat arbitrary designations, labelled companion, babysitter, parent’s helper, domes-
tic servant, children’s nurse and housekeeper. Note that under the FDM program, the applicant
must have completed a training course or have a minimum one year’s experience on the job.
29For a general discussion (from a Marxist-feminist perspective), see Gaskell, supra, note 88
291The Ontario Pay Equity Hearings Tribunal recently addressed the systemic devaluation of the
skills involved in nursing qua “women’s work” in an application under the Ontario Pay Equity Act
brought by the Ontario Nurses Association. The Tribunal reported, inter alia, that traditional job
evaluation methodologies reinforce the low value of “women’s work” by rendering “invisible the
skills and responsibility required in women’s work” (Ontario Nurses’ Association v. Regional
Municipality of Haldimand-Norfork (29 May 1991), No. 0001-89 (P.E.H.T.) at 7).
292Ten factors are considered by the visa officer under the point system. The points awarded for
each are bracketed: Education (12), Specific Vocational Preparation (10), Experience (8), Occupa-
tional Demand (10), Arranged Employment or Designated Occupation (10), Demographic Factor
(10), Age (10), Knowledge of English and French (15), Personal Suitability (10), Relatives in Can-
ada (5).
1992]
FOREIGN DOMESTIC WORKERS
of the remaining categories such as experience, occupational demand and pre-
arranged employment incorporate the skill rating into the calculation of points.
For example, experience in a “high skill” occupation is worth more than the
same length of experience in a “low skill” occupation; “low skill” occupations
in high demand (such as domestic work)293 will attract no points whatsoever
under the “occupational demand” category, whereas “higher skill” occupations
in lesser demand will earn points;294 finally, an Immigration officer has discre-
tion to award an applicant no points whatsoever for pre-arranged employment
if the occupation is too “low skill” and/or the immigration officer doubts the
applicant’s long term commitment to the occupation.29 In effect, the domestic
worker who attempts to qualify as an independent immigrant has essentially no
hope of earning the requisite 70 points under the present point system: as long
as her occupation is defined as “low skill,” the fact that her occupation is in high
demand, that she has demonstrated aptitude and experience as a domestic
worker, that she may even have a job offer from a Canadian family, all counts
for next to nothing.
Those launching a section 15 challenge to the point system might argue for
a reassessment of the points awarded to domestic workers under the SVP rating.
Another remedial approach would be to contain the hegemonic role of “skill”
in the point system so that the points awarded for experience, occupational
demand aid pre-arranged employment reflect what the designations denote.
Further elaboration of a Charter challenge is unnecessary at this stage.
However theoretically attractive it may appear, as a practical resolution to the
dilemma of foreign domestic workers, litigation is of limited utility. First, what
domestic worker would ever be in a position to advance a Charter claim? I
speak here not only of the formidable financial impediments to litigation. A
challenge to the point system would require a litigant who is injured by it,
namely, a prospective immigrant. Locating a domestic worker outside Canada’s
borders who would voluntarily apply as an immigrant (presumably with the
knowledge that she would fail) in order to test the constitutionality of the point
293hnmnigration Manual (Selection and Control), supra, note 83 at IS 15.26(1)(b):
[A]s the labour force participation of mothers continues to increase, the need for quality
child care services to meet the growing demand will pose ever increasing problems for
Canadian families. Because of this, we must accept that the demand for foreign domes-
tics is not likely to decrease in the near future.
29 .4’Te points available for occupational demand are derived from the Open Occupation List
compiled by Employment and Immigration which lists the occupations officially in demand, and
the number of units awarded for each occupation. Strangely enough, the list is not generated by
simply examining labour market demand. The skill level of the occupation also figures in the cal-
culus. “Low skill” occupations do not generally appear on the list no matter how great the demand.
This means that categories of domestic work do not merely receive few points on the Open Occu-
pation List; they are not on the list at all. Zero points are awarded to domestic workers under occu-
pational demand (Stewart, supra, note 193).
295Under the FDM scheme, the CEC routinely validates employment offers by Canadian
employers to domestic workers abroad. On the other hand, the CEC does not normally validate
employment offers to prospective immigrants (as opposed to visitors) if the SVP score for the posi-
tion is considered too low, or if the officer has reason to believe that the applicant will not remain
in her designated occupation (ibid.).
REVUE DE DROIT DE McGILL
[Vol. 37
system seems a daunting and wholly implausible task. Moreover, at least two
recent Federal Court cases suggest that non-citizens outside Canada’s borders
are excluded from the ambit of Charter protection. 6 Even assuming domestic
workers currently in Canada on the FDM scheme could arguably claim standing
to challenge the point system, it seems unrealistic to suppose that very many
would jeopardize their own chances of obtaining landed immigrant status by
embarking on a course of conduct destined to antagonize their employers and
the government. Even a domestic worker with no intention of immigrating
would surely hesitate before volunteering to participate in lengthy and tedious
litigation.
The problem of locating a plaintiff may not be insurmountable, however,
if associations representing domestic workers (such as INTERCEDE and the
West Coast Domestice Workers’ Association) were granted standing to launch
an action as plaintiffs. In Canadian Council of Churches, the plaintiffs failed in
their bid for standing to challenge the constitutional validity of recent amend-
ments to the Immigration Act concerning refugee determination. Writing for a
unanimous Supreme Court of Canada, Cory J. based his decision primarily on
the finding that there were “other reasonable methods” for bringing the matter
before the court, namely through individual refugee claimants leading Charter
challenges on their own. Cory J. suggests that similar claims had in fact been
brought by individual refugee claimants in the course of judicial review of unfa-
vourable determinations, and this seemed to weigh heavily against the plaintiff
qua public interest litigant. 2′ Based on the judgment in Canadian Council of
Churches, the likelihood of domestic workers’ associations gaining standing
would depend on how seriously the court took the practical impediments to
individual domestic workers’ capacity to litigate on their own.
Even if we make a propitious leap of faith and imagine not only the advent
of litigation, but even its success, the issue does not end there. Society is demon-
strably and obstinately unwilling to improve wages and working conditions as
a means of retaining people in the occupation of domestic work. As long as this
remains true, most live-in domestic workers will use domestic work to get to
Canada and leave the occupation (or at least move out of the employer’s resi-
dence) as soon as they are legally able to do so, leaving empty the labour niche
that they are admitted to fill. This may not seem like a problem that need con-
cern foreign domestic worker advocates, but this fact can only rebound to the
detriment of the workers themselves. It would be naive to suppose that the
courts can effectively compel the government to unconditionally admit people
to perform a job that everyone suspects they will abandon at the earliest avail-
able opportunity. It is a mistake to think the government can be constitutionally
“tricked” into admitting as immigrants a group of people it has gone to such
pains to exclude from that category. After all, the very purpose of domestic
296Canadian Council of Churches v. Canada, [1990] 2 F.C. 534 (C.A.), aff’d on other grounds
(1992), 88 D.L.R. (4th) 193, 132 N.R. 241 [hereinafter Canadian Council of Churches cited to
N.R.]; Ruparel v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 615 (T.D.).
2971bid. at 261. It should be noted that the evidence upon which Cory J. based this finding of
fact was scanty at best and bordered on conjecture.
1992]
FOREIGN DOMESTIC WORKERS
workers’ precarious immigration status “is to prevent them from improving
their condition; for if they could do that, they would soon be like [local] work-
ers, unwilling to take on hard and degrading work or accept low rates of pay.” 98
That is why the FDM scheme resorts to the carrot of possible immigration in
the future and the stick of deportation at any moment in order to keep domestic
workers in line.
Immigration is one of the least controllable aspects of government activity.
Not only is it fraught with bureaucratic discretion, but its subjects are, ex hypo-
thesi, politically powerless. Public awareness of and concern about immigration
issues are nascent and in many ways inchoate, leaving the targets of immigra-
tion policy with little recourse to public support.
Without wishing to rely on artificial worst case scenarios, it is important
to appreciate the various ways that the practical ability of domestic workers to
enter as immigrants may be stymied. First, employment offers may not be vali-
dated for purposes of immigration for the very reasons that the domestic worker
will not remain in the occupation. Similarly, arbitrary and discretionary factors
such as “personal suitability” and “demographic factors” may be manipulated to
lower the overall units of assessment. In borderline cases, the corresponding
diminution in points may prevent a domestic worker from acquiring the 70
points required by independent immigrants. Finally, there is a residual provision
under section 11(3) of the Immigration Regulations, 1978 which permits a visa
officer to refuse to issue an immigrant visa to a person who has been awarded
70 points if “there are good reasons why the number of units of assessment
awarded do not reflect the chances of the particular immigrant and his depend-
ants of becoming successfully established in Canada.” Though this provision is
rarely invoked at present, it might well become more popular in circumstances
where the government is confronted with a class of persons it does not want to
admit as immigrants and yet cannot exclude on the basis of the point system.
This possibility has already been foreshadowed in the role played by the “self-
sufficiency” requirement under the present FDM scheme. Once again, entry as
a simple visitor on an employment authorization could resurface as the only
route for women who desperately need to migrate in order to support their
families.
I do not suggest that litigation should be abandoned. Rather, I am claiming
is
admission of domestic workers as immigrants –
that the goal it seeks –
desirable but also unlikely to be realized through litigation alone.
Thus, lawyers’ propensity for “litigifying” every problem is misguided if
pursued in isolation. At the very least, litigation to recognize domestic workers
as “insiders” will only be effective if pursued in tandem with lobbying for leg-
islative reform. I am sympathetic to Allan Hutchinson’s posture of “strategic
skepticism” ‘299 toward the transformative potential of litigation. In my view, the
instrumental value of the courts as one of several fora where domestic workers
298walzer, supra, note 12 at 59.
299Book Review of Making All the Difference by Martha Minow (1991) 89 Mich. L. Rev. 1549
at 1568.
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may apply pressure for legislative reform probably exceeds any direct benefits
available from litigation. If, as I suggest, the recognition of domestic workers
as “insiders” is unattainable via the courts, then what we need is a realistic
assessment of the options which seek to empower foreign domestic workers,
given the constraints imposed by their inside/outside status.
My recommendations are pragmatic and admittedly reformist. They begin
with an absolute requirement that the government supply domestic workers with
full and adequate information before they come to Canada, and comprehensive
orientation services once they arrive. The government must also furnish domes-
tic workers with the names, addresses and phone numbers of all social service,
public interest and advocacy organizations that assist domestic workers.
With respect to my substantive proposals, I recommend aiming for the
admission of foreign domestic workers as landed immigrants, conditioned upon
two years employment as a domestic worker3 O During those two years, the
domestic worker would have the option of living-in or living-out, but would be
confined to domestic work. She may change employers at will although she
should notify Employment and Immigration of her movements so that the gov-
ernment may verify that she has worked continuously as a domestic worker for
two years.
The advantage of initially granting landed status is that the sting of the
deportation threat is dulled. As long as domestic workers stay in the occupation,
they retain their immigration status. Issuance of new employment authorizations
would not require a “release letter” from the old employer, but would require
an offer of employment from the new one in order to satisfy Immigration’s
monitoring concerns. In cases where the domestic worker is alleged to be der-
elict in her duties, the onus will be on the employer to pursue the matter with
Immigration officials.
Granting the domestic worker the option of living-out while constraining
her freedom to abandon domestic work gives her the opportunity to test the
government’s claim that the reason foreign domestic workers must be com-
pelled to live-in is that there is Ao demand for live-out domestic workers?0’ If
that is the case, foreign domestic workers will presumably remain in live-in sit-
uations for the entire two years. If the assumption proves false, then they will
be able to fill a labour need without undergoing the privations of live-in domes-
tic work for an extended period. Sponsorship of family members would be pre-
cluded during the first year of the program, though the domestic worker would
be able to commence her application for sponsorship during the second year of
her employment.
In effect, foreign domestic workers would be transformed into a class
formally akin to the entrepreneur/investor class of immigrant applicants. Immi-
ing the Caribbean scheme from the 1950s to 1973. See supra, text accompanying note 29ff.
300The idea of granting conditional landed immigrant status is not new. This was the system dur-
30 Anecdotal evidence collected by the West Coast DWA suggests that some employers and
domestic workers have voluntarily moved to live-out situations, although this is illegal under the
current scheme.
1992]
FOREIGN DOMESTIC WORKERS
grants in this category are required to accumulate fewer points on the “point
system” than other independent immigrants to Canada. The government grants
them preferential treatment in exchange for their commitment to make a “min-
imum investment”3 ‘ in Canada or to start-up and manage a business in Canada.
Their immigration status is conditional upon fulfillment of their financial under-
takings, 3 just as domestic workers’ status would be contingent on continuous
employment in the industry for two years. In effect, entrepreneurs and investors
buy their way into Canada with cash and the promise to create employment
opportunities in the future for at least one Canadian other than the immigrant
and his/her dependants. 3” Similarly, domestic workers would buy their way into
Canada with their labour and the ability to enhance employment opportunities
for one other Canadian (namely, the female employer who would be relieved of
her unpaid childrearing duties in order to seek out paid employment). As with
entrepreneurs and investors, the government would recognize the anticipated
contribution of domestic workers over the period of their two year residence in
Canada by easing the points required to obtain landed status. Finally, domestic
workers could be held to a lower standard than independent immigrants in terms
of the points they must earn to warrant admission under the point system as
presently constituted.3″5 Like other immigrants, foreign domestic workers would
be admitted through provisions enacted under the Immigration Act and/or the
Immigration Regulations, 1978 specifically addressed to their situation rather
than via the “back door” of informal criteria and bureaucratic discretion as
embodied in the current scheme. Domestic workers have been coming in
through the back door long enough.
Though my proposals presume the continued immigration of foreign
domestic workers, they are not particularly motivated by a desire to serve the
interests of Canadian employers. As my concluding discussion emphasizes, the
institution of live-in domestic work inherently potentiates exploitation. 6 and is,
in my view, profoundly problematic from a feminist perspective. In the best of
all worlds, women of one region of the planet would not be forced to abandon
their own children to raise someone else’s. In the second best world, however,
I identify the immediate priority as assisting women of LDCs whose migration
manifests the urgency of their need.
3 02Defined as a range between $150 000-$500 000, depending on a variety of factors. See Immi-
3031bid. ss 23(1)(d)(iv)-(v). Note that domestic workers were also conditionally landed as immi-
gration Regulations, 1978, supra, note 73, s. 2(1).
grants between 1967 and 1973.
3041bia- ss 2(1), 9(1)(b).
305Lowering the requisite number of points a foreign domestic worker must earn is an alternative
to reforming the point system entirely in order to ameliorate the bias against people whose skills
are considered low but whose labour is in high demand. Obviously, reforming the point system is
the preferable route in the long run.
306My suspicion is that even if wages were improved, the live-in requirement contains an irre-
ducible component of subordination and loss of autonomy that cannot but make it undesirable to
any adult woman for any length of time. The only real short-term advantage it has for some women
is that it gives them more disposable income to send home than they might otherwise have if they
held an ordinary minimum wage job in a city where the cost of living was high.
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VII. The Ties That Divide
We are also saying that in a very fundamental sense all women are treated as
immigrants; that even in the countries where we supposedly belong, we are all in
some way dispossessed.
-Wilmette Brown30 7
The Feminine Mystique, 8 first published in 1963, is frequently (and not
without justification) excoriated as the ultimate symbol of white-middle class-
heterosexual-feminist essentialism. Various feminist authors have invoked it as
a symbol of what is wrong with contemporary feminism. Some have focused on
the class bias, 3 9 others the racism. Seizing on domestic service, bell hooks dryly
observes that when Betty Friedan spoke of women wanting “more” than home,
husband and children, “[s]he did not discuss who would be called in to take care
of the children and maintain the home if more women like herself were freed
from their house labor and given equal access with white men to the profes-
sions. 31 0 Hooks recognized that the answer was poor Afro-American and Chi-
cana women. In Canada, the answer is migrant women –
some West Indian,
some Anglo-European, but mostly Filipino.
There is a certain temptation to label the domestic worker as “surrogate
housewife.” After all, domestic workers are hired to perform the tasks assigned
to the modem housewife. The social and physical isolation, the invisibility of
the work, the physical labour, and interminable nature of the tasks go with the
job,31 no matter who performs it. From a stark economic perspective, the
domestic worker is a surrogate housewife who is nominally better off because
she is paid for her labour. Equating the domestic worker to a housewife permits
one to subsume the oppression of the domestic worker into an analysis of
women’s oppression qua wife and mother. The label is convenient because of
its contemporary referent, but the analogy is wrong. Delia’s persona, even in her
“mothering” capacity, owes little to the role of middle class, twentieth-century
housewife. She is neither a substitute mother nor a substitute wife. She is the
modem incarnation of the pre-industrial servant.
A servant is not merely a species of employee. The peremptory control
employers exercise over domestic workers’ time and labour, the “personaliza-
tion” of relations between the parties, the negation of the domestic worker’s
autonomous identity, the casual disregard of contractual and/or statutory obliga-
tions in favour of “informal” arrangements dictated by the employer’s will –
307Quoted in Selma James, ed., Strangers & Sisters-Women, Race & Immigration (Voices from
the Conference “Black and Immigrant Women Speak Out and Claim Our Rights”) (Bristol: Falling
Wall Press, 1985) at 58.
308Betty Friedan, The Feminine Mystique (New York: Norton, 1963).
309See, for example, Zillah R. Eisenstein, Feminism and Sexual Equality: Crisis in Liberal
310Feminist Theory From Margin to Center (Boston: South End Press, 1984) at 1.
31 For a discussion of the condition of the women who work at home, see Ann Oakley, The Soci-
America (New York: Monthly Rev. Press, 1984) at 192-93.
ology of Housework (New York: Pantheon Books, 1974) passim.
1992]
FOREIGN DOMESTIC WORKERS
these are the indicia of a reversion from employee to servant status. 312 Paradox-
ically, the domestic worker “contracts” to assume the subordinate status of ser-
vant, at which point the contractual model (with its assumption of juridical
equality) ceases to inform the internal operation of the relationship.313
When employers insist that a domestic worker is “like one of the family,”
they unwittingly affirm the feudal quality of the relation. At no time was the
domestic worker more like “one of the family” than when her status was form-
ally acknowledged to be that of a servant. Prior to the Industrial Revolution,
household and family were synonymous and coextensive314 and functioned as an
integrated economic unit of production.315 Servants living under the master’s
roof were considered full members in the patriarchal household. 16 In this pre-
industrial era, the family and the market were not treated as mutually exclusive
categories. It is the historical roots of live-in servitude that render it impossible
to fit domestic workers into the contemporary public/private discourse. The role
of the foreign domestic worker is not merely anomalous; it is an anachronism.317
Rather than depict the domestic worker as surrogate housewife, it might be
more accurate to characterize the middle class housewife as the conflation of
“two roles, the role of servant (primarily engaged in tasks of physical reproduc-
tion) and the role of ‘lady of the house’ (primarily engaged in management and
312For an articulate and concise comparison of the master/servant and employer/employee rela-
tions, see Lewis Coser, “Servants: The Obsolescence of an Occupational Role” (1973) 52 Social
Forces 31. Colen & Sanjek, supra, note 139; Rollins, supra, note 145; Arat-Koc, supra, note 80;
Glenn, supra, note 139; Aitken, supra, note 102, elaborate on the particularity of the relation
between contemporary domestic worker and employer.
313Pateman makes an analogous point with respect to wives: once they enter the marriage con-
tract, their status effectively strips them of the capacity to enter the social contract. This argument
is developed at various points in The Sexual Contract (supra, note 242, c. 1, 6, 8).
314Rollins, supra, note 145 at 26-27.
315According to historian Linda Nicholson, co-habitation (or “domesticity”) actually took pre-
cedence over kinship in the demarcation of the family unit well into the nineteenth century. Nichol-
son attributes this priorization to the role of the individual households as single economic units of
production, such that a live-in servant was more integral to the maintenance of the family/
household than blood relatives residing elsewhere. Within this system of social ordering, the family
and the market were integrated rather than counterpoised. To the extent that one can speak of a
public/private split, the line was drawn around, rather than between, the market/family nexus (Gen-
der and History: The Limits of Social Theory in the Age of the Family (New York: Columbia U.
Press, 1986) at 82).
316Along with husband/wife and parent/child, the master/servant relation was one of Black-
stone’s “three great relations in private life” (Blackstone’s Commentaries on the Laws of England
(1765), quoted in Coser, supra, note 312 at 31).
3 17As Michael Walzer points out, the inferiority of the servant relative to her master and mistress
is not contingent upon, but is integral to, the definition of what it means to be a servant:
This is the sort of work that is largely dependant on its (degraded) moral character.
Change the character, and the work may well become un-doable, not only from the per-
spective of the worker but from that of the employer, too. “When domestic servants are
treated as human beings,” wrote Shaw, “it is not worthwhile to keep them” (supra, note
12 at 180).
Individual employers may deny that this describes the relationship between them and their domes-
tic workers. Without denying the possibility of exceptional cases, my research simply does not bear
out the contention that domestic work is in fact accorded dignity and value by this society, notwith-
standing abstract claims about how valued child-rearing and homemaking is (or should be).
McGILL LAW JOURNAL
[Vol. 37
tasks of social reproduction).””31 The re-emergence of the domestic worker thus
signifies the disentangling of those two roles and the resumption of the pre-
industrial bifurcation of mistress and servant among the middle and upper
classes. The “labour of love” mystification that effaces the domestic worker’s
labour is perhaps the most prominent vestige of her connection to the house-
wife. Even today, women who do not work outside the home are still able to
derive status from their husbands. Conversely, the low status of the contempo-
rary domestic worker appears impervious to the social position of her employers
and is, in any case, lower than a housewife of any class.319 After all, the oft
invoked refrain that wives are glorified servants320 derives its rhetorical force by
appealing to a shared perception of the natural inferiority of servants.32′ Invert-
ing the trope can only make the domestic worker’s lot appear rosier than it really
is.
Furthermore, many foreign domestic workers are wives and mothers
whose own families have been dismembered by the exigencies of Third World
poverty and restrictive immigration laws. Assimilating the terms “wife” and
“servant” elides this aspect of domestic workers’ identity in much the same way
as comparing the situation of women and Blacks obscures the existence of
Black women.3 2 It also privileges the identification of the family as the primary
site of all women’s oppression by equating the experience of oppression within
31
8Martha Giminez, “Waged Work, Domestic Labor and Household Survival in the United
States” in Jane L. Collins & Martha Giminez, eds, Work Without Wages: Comparative Studies of
Domestic Labor and Self-Employment (Albany: SUNY Press, 1990) 25 at 40-41.
319Christine Bose, “Social Status of the Homemaker” in Sarah Berk, ed., Women and Household
Labor (London: Sage Publications, 1980) 69 at 76.
32As in Lady Chudleigh’s 1703 quip: “Wife and servant are the same/but only differ in the
name” (quoted in Pateman, supra, note 242 at 125). Pateman herself adopts the analogy in her
sophisticated analysis, though she qualifies it in various ways.
321Bei1 hooks makes a similar point with respect to white feminists comparing the lot of women
to that of slaves and people of colour:
Just as 19th century white woman’s rights advocates attempted to make synonymous
their lot with that of the black slave was aimed at drawing attention away from the
slave toward themselves, contemporary white feminists have used the same metaphor
to attract attention to their concerns…. When white women talked about “Women as
Niggers,” “The Third World of Women,” “Woman as Slave,” they evoked the suffer-
ings and oppressions of non-white people to say “look at how bad our lot as white
women is, why we are like niggers, like the Third World.” … [I]f they had been poor
and oppressed, or women concerned about the lot of oppressed women, they would not
have been compelled to appropriate the black experience. It would have been sufficient
to describe the oppression of woman’s experience. A white woman who has suffered
physical abuse and assault from a husband or lover, who also suffers poverty, need not
compare her lot to that of a suffering black person to emphasize that she is in pain
(supra, note 148 at 141-42).
322See Elizabeth Spelman, Inessential Woman (Boston: Beacon Press, 1988) at 114-15. As Susan
Boyd observes, the historical association of Black women with domestic service in the United
States has had an especially distorting impact on Black women’s social identity:
Ideologies of black female domesticity and motherhood have been constructed, through
their employment (or chattel position) as domestics and surrogate mothers to white
families rather than in relation to their own families. Quoted in Marlee Kline, “Race,
Racism and Feminist Legal Theory” (1989) 12 Harvard Women’s L.J. 115 at 130).
See also the discussion by bell hooks of the myth of Black matriarchy and the “Aunt Jemima”
stereotype perpetuated by white culture (supra, note 148 at 70-86).
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FOREIGN DOMESTIC WORKERS
one’s own family with oppression by someone else’s family. As Daiva Stasiulis
remarks, many migrant women of colour experience this separation from their
family as a greater source of suffering than the sex oppression occurring within
a family unit:
The central focus on the family as a site of women’s oppression is regarded as
highly problematic for black feminists. They argue that in racist societies, the fam-
ily has provided opportunities for egalitarian relations among women and men,
and has functioned as a site for shelter and resistance. Black feminists also decry
the focus of feminist theory on the centrality of the family in enforcing women’s
oppression, when racially restrictive immigration laws have served to destroy
black families by separating husbands from wives, wives from husbands, and par-
ents from children. … The distinct relationship of non-white, non-European
women to the state has been encoded in a patchwork of racist immigration policies
‘which actively restricted the entry into Canada of dependents of male or female
non-white migrant workers. 323
From a feminist perspective, the most glaring and problematic reason for
resisting the fusion of wife and servant is that it is most frequently the woman
of the household who directly supervises the domestic worker. Adopting an ana-
lytical approach that asks a domestic worker to identify her oppression with that
of her employer insults her lived experience.324 It also ignores the way domestic
services function to reinforce social hierarchy along other dimensions of
inequality:
The presence of the “inferior” domestic, an inferiority evidenced by the perform-
ance she is encouraged to execute and her acceptance of demeaning treatment,
offers the employer justification for materially exploiting the domestic, ego
enhancement as an individual, and a strengthening of the employer’s class and
racial identities. Even more important, such a presence supports the ideal of
unequal human worth: it suggests that there might be categories of people (the
lower classes, people of color) who are inherently inferior to others (middle and
upper classes, whites). And this idea provides ideological justification for a social
system that institutionalizes inequality.3
2
The grim truth is that some Canadian women’s access to the high paying,
high status professions is facilitated through the revival of semi-indentured ser-
vitude. Put another way, one woman is exercising class and citizenship privilege
to buy her way out of sex oppression. It is a measure of the personal success
323Stasiulis, supra, note 30 at 5-6. For a discussion of British immigration policies that enforce
the separation of mothers from children, see Jacqueline Bhabha et al., eds, “Childless Mothers:
Children Kept Out,” in Jacqueline Bhabha et a., Worlds Apart: Women Under Immigration and
Nationality Law (London: Pluto, 1985) 102.
324Writing about the American experience, bell hooks notes that:
In the white community, employing domestic help was a sign of material privilege and
the person who directly benefitted from a servant’s work was the white woman, since
without the servant she would have performed domestic chores. Not surprisingly, the
black female domestic tended to see the white female as her “boss,” her oppressor, not
the white male whose earnings usually paid her wage (supra, note 148 at 154).
325Rollins, supra, note 145 at 203. Elizabeth Spelman also develops this last point:
Those of us who are white may not think of ourselves as racist, because we do not own
slaves or hate Blacks, but that does not mean that much of what props up our sense
of self is not based on the racism that unfairly distributes benefits and burdens to whites
and Blacks (supra, note 322 at 121).
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[Vol. 37
of Delia’s employer Mary that she is “making it” in a man’s world on male
terms. It is a measure of her failure on these same male terms that she is blamed
as a woman for exploiting Delia, for it signifies the implicit affirmation of the
sexual division of labour: Delia is doing “Mary’s work.” ‘326
Obviously, responsibility for domestic labour should fall equally on Dan
and Mary or, more broadly, on the institution of the nuclear family. On the other
hand, shifting the blame from Mary to the couple hardly absolves Mary. Live-in
domestic work inherently tends toward the exploitation of the women who do
it. This is true whether or not Mary thinks of herself as a good employer,327 and
whether or not she has Delia babysitting in the evenings so she can attend her
LEAF meetings.32
The cross-cutting cleavages of gender, class, citizenship, race/ethnicity
complicate a feminist understanding of relations between Mary and Delia.
Indeed, they pose a challenge to any theory of inequality that is partial, for it
becomes increasingly difficult to know which oppression gets top billing and
which are only supporting actors.32
For example, while feminist legal scholar Catharine MacKinnon acknowl-
edges that “a woman’s specific race or class or physiology may define her
among women,” she warrants that “simply being a woman has a meaning that
decisively defines all women socially, from their most intimate moments to their
326Arat-Koc, supra, note 80 at 43.
3271 note in passing that every employer I encountered believes herself to be a “good employer.”
Suffice to say that the pool of self-described “good employers” is larger than the pool that would
emerge by any other measure.
328A Brazilian lawyer who shares Mary’s position describes her evolving understanding of her
role in the subordination of her domestic worker:
The domestic worker is a double, the other self one leaves at home doing those things
that traditionally you, as a woman, should be doing … I felt it in my own flesh, this
other self who freed me so that I could perform my other roles. At the beginning, I felt
very guilty: guilt for having a domestic worker, guilt for exploiting another woman’s
work. But suddenly I began to question why I alone should be feeling guilty, as she
is not working just for me but for everybody in my house. This type of guilt is felt by
most feminist women who have domestic workers because it seems a contradiction to
be a feminist and to employ a domestic worker. But if there is guilt, it should be shared
by the entire family – husband, wife and children – who are actually benefiting from
somebody else’s poorly paid work (quoted in Hildete Pereira de Melo, “Feminists and
Domestic Workers in Rio de Janeiro” in Chaney & Garcia Castro, eds, supra, note 126,
245 at 260-61).
3291 use Catharine MacKinnon’s work to illustrate the partiality of a theory of sex inequality. I
am not using it to suggest that her theory is essentialist. I do not read MacKinnon as denying that
her theory is partial. I understand her claim to be that feminism is no less powerful or primary for
being partial, anymore than Marxism is irrelevant because class is not a comprehensive category
of analysis. Indeed, MacKinnon acknowledges that sex, class or race alone are not general theories
of social inequality, though the connections between them may generate one (Toward a Feminist
Theory of the State (Cambridge: Harvard U. Press, 1989) at 130 [hereinafter Toward a Feminist
Theory]; Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard U. Press, 1987)
at 2-3). For essentialist critiques of MacKinnon focusing on race/ethnicity, see, for example,
Angela Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stanford L. Rev. 581;
Kline, supra, note 322; Celina Romany, “Ain’t I a Feminist” (1991) 4 Yale J. L. & Fern. 23.
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FOREIGN DOMESTIC WORKERS
most anonymous relations.”33 The former proposition speaks to women’s inter-
nal relations with one another, while the latter addresses women’s external rela-
tions with men. If we concentrate solely on the external perspective, we observe
that Mary and Delia are both oppressed as women, though in different ways and
with differing degrees of severity.33’ MacKinnon describes this fundamental
commonality as follows:
To be treated like a woman is to be disadvantaged … as an incident of being
assigned to the female sex. To speak of social treatment “as a woman” is thus not
to invoke any universal essence or homogeneous generic or ideal type, but to refer
to this diverse material reality of social meanings and practices such that to be a
woman “is not yet the name of a way of being human.” 332
Once we supplement this with the internal perspective, the picture becomes
murkier. The trouble is that Mary’s race, class and citizenship do not merely
define her in the sense of differentiating her from Delia. They constitute her as
a particular kind of woman, and they give her real power over Delia. And
power, in MacKinnon’s theory, is what defines men. True, the assertion of
Mary’s power is constituted through the disempowerment she experiences in her
external relations, specifically the sexual division of labour in the home and the
male-centred workplace. Patriarchy illicitly transforms Mary into the proxy for
the nuclear family and assigns blame to her for Delia’s exploitation. This is no
answer to Delia though. Mostly, Delia hears neither the language of genuine
connection and caring333 in Mary’s voice, nor does she hear Mary speaking with
the strangulated voice of a woman with a foot on her throat.334 She hears the lan-
guage of power in a different voice. Can we only make sense of the relation by
positing Mary as a nominal man in the Mary-Delia nexus, 335 or must we dismiss
power relations between women as socially interstitial because both parties are
relatively powerless compared to men? 336
330Toward a Feminist Theory, ibid at 90.
331Iris Young offers five dimensions of oppression. These are exploitation, marginalization, pow-
erlessness, cultural imperialism and systemic violence (see Young, supra, note 212). Cataloguing
Mary (an upper-middle-class white female citizen of Canada) and Delia (a lower-class Filipina
non-citizen) along these dimensions is beyond the scope of this paper, but I suggest here that their
respective experiences would vary both quantitatively and qualitatively.
332″Reflections on Sex Equality Under Law” (1991) 100 Yale L.J. 1281 at 1299.
333Carol Gilligan’s theory of female moral development posits that young women reason from
a standpoint of connection and care, rather than through the male construct of rights and duties (In
a Different Voice (Cambridge: Harvard U. Press, 1982)).
334See the exchange between Catharine MacKinnon and Carol Gilligan in “The 1984 James
McCormick Mitchell Lecture: Feminist Discourse, Moral Values, and the Law – A Conversation”
(1985) 34 Buffalo L. Rev. 11 at 74-75, wherein MacKinnon objects to Gilligan’s description of the
“feminine voice” by characterizing it as that which a woman articulates “because his foot is on her
throat.”
335MacKinnon may well affirm this type of fluid gender assignations. Writing about heterosex-
uality as a system whereby dominance and submission are eroticized and gendered, she states:
Whenever women are victimized, regardless of the biology of the perpetrator, this sys-
tem is at work. But it is equally true that whenever powerlessness and ascribed infe-
based on age, race, physical stature or
riority are sexually exploited or enjoyed –
appearance or ability, or socially reviled or stigmatized status –
the system is at work
(Toward a Feminist Theory, supra, note 329 at 179).
336That MacKinnon’s theory may be unable to fully account for every aspect of every situation
does not detract from the extraordinary explanatory power that it does possess. See, for example,
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Mary’s power and her (ab)use of it is problematic from a feminist perspec-
tive. Her various privileges cannot be rationalized as being entirely parasitic on
Dan’s. She cannot be dismissed from a feminist analysis as “exception” in her
power without eliminating Delia as exceptional in her disempowerment. They
are as interdependent in theory as they are in life.
That Delia is a woman of colour is not a prerequisite to her exploitation,
but it can facilitate it. The subject/object dichotomy MacKinnon uses to desig-
nate and define the male/female hierarchy also applies to the categories of
master/servant, dominant/subordinate race and citizen/alien. Though Mary and
Delia are on the same side of the male/female divide, they find themselves on
opposite sides of each of these other dualities. This permits Mary to objectify
Delia in various ways that are influenced, but not precluded, by gender. For
example, Mary can hardly claim that Delia is ideally suited to domestic work
because she is a woman without impugning herself, but she can fall back on Fil-
ipino women being “naturally” hard working, subservient, loyal tidy housekeep-
ers and “good with children.” In this context, race, ethnicity and culture conjoin
with sex to create a sub-category of women whose subordination other women
can rationalize by projecting onto them the stereotypical “feminine” qualities
that patriarchy has used against women generally. 37 As bell hooks trenchantly
observes, women can use their various privileges to distance themselves from
the women they wish to exploit while aligning themselves with the men whose
power they seek:
Throughout American history white men have deliberately promoted hostility and
divisiveness between white and black women. The white patriarchal power struc-
ture pits the two groups against each other, preventing the growth of solidarity
between women and ensuring that women’s status as a subordinate group under
patriarchy remains intact. To this end, white men have supported changes in the
white woman’s social standing only if there exists another female group to assume
that role. Consequently, the white patriarch undergoes no radical change in his
sexist assumption that woman is inherently inferior. He neither relinquishes his
dominant position nor alters the patriarchal structure of society. He is, however,
her discussion of the “wages for housework” debate in “Feminism and Marxism: Attempts at Syn-
thesis” in Toward a Feminist Theory, ibid., 60.
337Judith Rollins suggests that if the female employer “sees the domestic as an extension of her-
self, it is of her least capable and least ‘feminine’ self. Any identification the employer has with
the domestic is a negative identification” (supra, note 145 at 185). While I agree with Rollins’ con-
clusion, I disagree with her characterization of “feminine.” I suggest that the employer’s disdain
derives from the very fact that the domestic worker represents her “feminine” self –
the one that
is naturally suited to housework and childcare. Compare the analysis of Barbara Rothman, who
describes how the intellectual and creative progress of the Victorian boy was marked by his tran-
sition from the “private” world of nurturing women to the “public” world of male 6ducation and
apprenticeships. She observes that, today, the gender split has been transposed onto race and class
dimensions:
Poor women, women of color, are often valued for their nurturant qualities. I’ve been
told that it is “island women,” or “old southern black women,” or “Mexican women”
who are believed to be so motherly. But by the age of three or four … these aren’t the
qualities that are being sought, just as these feminine qualities were inappropriate for
the Victorian boy. At this point, European, American, middle-class caregivers are
wanted, with class and ethnicity replacing gender in this revised Oedipal story (Roth-
man, supra, note 168 at 206).
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FOREIGN DOMESTIC WORKERS
able to convince many white women that fundamental changes in “woman’s sta-
tus” have occurred because he has successfully socialized her, via racism, to
assume that no connection exists between her and black women.
Because women’s liberation has been equated with gaining privileges within
the white male power structure, white men –
and not women, either white or
have dictated the terms by which women are allowed entrance into the
black –
system. One of the terms male patriarchs have set is that one group of women is
granted privileges that they obtain by actively supporting the oppression and
exploitation of other groups of women. 338
To put the point bluntly, there is nothing egalitarian about hiring a live-in
domestic worker and thus, to my mind, nothing feminist about it. A just solution
to the dilemma of career and family would involve, at a minimum, equally dis-
tributing responsibility for child rearing across the sexes, whether within the
nuclear family or through some other arrangement. It would also mean restruc-
turing the workplace and its priorities away from its anachronistic model of the
male breadwinner with the stay-at-home housewife. Finally, it would require the
state to assume greater responsibility in making childcare available and afford-
able to all women and paying those who provide childcare a decent wage.
As long as Mary employs Delia, however, none of these things are likely
to happen, for as Audre Lorde says, “the master’s tools will never dismantle the
master’s house.” ‘339 It will always be easier for Mary-the-employer to get Delia
to do all the housework than it is for Mary-the-wife to challenge Dan’s refusal
to do his share.”4 It will always be safer to take advantage of Delia’s “flexibil-
ity” than to antagonize the partners at her firm by insisting that on-site daycare
be a priority or that the firm’s “work ethos” be humanized. As long as parents
insist on having private, individualized childcare, there will be an incentive to
keep domestic work as cheap (and socially devalued) as possible. Provincial
governments will not heed shop owners’ complaints that paying clerks mini-
mum wage and overtime will put them out of business, but they will listen to
parents who say they cannot sustain their middle class professional families
unless they can overwork and underpay their domestic workers. The imperative
of maintaining the family as a viable social, economic and reproductive unit
means that the dual career nuclear family will continue to depend for its survival
on women like Delia even as it, by definition, excludes her.
338Supra, note 148 at 155. As sociologist Caroline Ramazonaglu states:
As increasing numbers of women return to work after having children, or remain in
work, many are directly dependent on the personal services of other women. Where
this dependence is on family labour, or state nurseries, or where poorly paid working
women pay poorly paid childminders to take children into their own homes, working
relationships are unclear. But where women with careers, businesses, inherited wealth,
or wealthy husbands can afford the private domestic labour of others, women clearly
stand in contradictory relations to each other and do not have the same interests in the
transformation of society (Feminism and the Contradictions of Oppression (London:
Routledge, 1989) at 108).
339Audre Lorde, “The Master’s Tools Will Never Dismantle the Master’s House” in Lorde,
supra, note 93, 110 at 112.
340Many women report that they use domestic workers to avoid confrontations with their unco-
operative partners (Arat-Koc, supra, note 80 at 43).
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[Vol. 37
Finally, as long as the government can placate middle class families by fur-
nishing them with live-in foreign domestic workers, the FDM scheme will be
used to deflect and fragment the demand for affordable, accessible, publicly
subsidized daycare.3″ Couples who can afford the private solution will take it,
leaving single, working class and poor mothers to fight the battle alone.
Though my narrative technique has tacitly adopted the perspective of
domestic workers, I am not unsympathetic to Mary’s dilemma. It is difficult to
condemn her for wanting to have both a professional career and a family. As
Adrienne Rich writes:
There is a natural temptation to escape if we can, to close the door behind us on
this despised realm which threatens to engulf all women, whether as mothers, or
in marriage, or as the invisible, ill-paid sustainers of the professionals and social
institutions. There is a natural fear that if we do not enter the common world of
men, as asexual beings or as “exceptional” women, do not enter on its terms and
obey its rules, we will be sucked back into the realm of servitude, whatever our
temporary class status or privileges.3 2
Mary has made a constrained choice, given the current distribution of
power. She is unwilling to sacrifice her career to her children, nor to the “rev-
olution” which she may never live to see. So she and Dan hire Delia. Mary is
caught between being subordinated as a woman and participating in the domi-
nation of another. My goal is not to vilify her, but to ask her to use her expe-
rience of subordination as a means of acknowledging her domination of Delia.
This is a task beyond the realm of consciousness-raising, for the objective is not
that Mary come to realize how both she and Delia are subjugated by men and
male society. 3 Rather, I want Mary to understand how she constructs Delia as
an object of subjugation and objectification using the same tools that are
deployed against her. That is to say, I want Mary to take the lessons of
consciousness-raising and turn them inward. This is neither easy nor painless
for, as Audre Lorde observes, “it is very difficult to stand still and to listen to
another woman’s voice delineate an agony … to which I myself have contrib-
uted.”‘
First, consider the possibility that Delia really does like children, and that
this is a quality she and Mary share. Mary should know that there is a good
34 Commenting on the American situation, Martha Giminez states that “[t]he demand for child-
care itself reflects the options open to a society in which an ideological commitment to political
equality makes the call for more and affordable servants a political impossibility” (Giminez, supra,
note 318 at 41-42). Not only is the call for servants politically possible in Canada, it is also polit-
ically successful.
3″ ‘Conditions for Work: The Common World of Women” in On Lies, Secrets and Silence:
Selected Prose, 1966-1978 (New York: W.W. Norton, 1979) 203 at 206-07.
343Angela Harris criticizes what she sees as the inherently limited scope of consciousness-raising
as described by MacKinnon in Toward a Feminist Theory, supra, note 329 at 83-105, for its tend-
ency, inter alia, to impose a false unity and primacy on women’s experience (“Categorical Dis-
course and Dominance Theory” Book Review of Toward a Feminist Theory of the State by Cath-
arine MacKinnon (1990) 5 Berkeley Women’s L.J. 181 at 185-86). My tentative suggestions are
not intended to undermine consciousness-raising per se; rather, they attempt to push it beyond its
current self-imposed boundaries.
344Lorde, supra, note 93 at 128.
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chance Delia has children of her own (or perhaps young siblings or relatives)
in the Philippines and would rather be looking after them than “giving uncon-
ditional love to white babies in the suburbs of our cities.” ‘345 Secondly, Mary
must consider whether Delia’s subservient manner is a product of her accultu-
ration to the role of the compliant “Asian female” or is a behaviour pattern
adopted in response to the tacit expectations of her employer. Does Delia pas-
sively acquiesce without complaint to each of Dan and Mary’s requests because
they are so reasonable, or because of the brute fact that she may jeopardize her
opportunity to gain landed immigrant status if she complains or switches
employers? To put it crudely, if you lived daily with the fear of expulsion,
you would be pretty docile. In fact, if Mary pauses to think about it, she might
realize how often she “toes the line” precisely because she fears being
excluded, how often she self-consciously suppresses her opinions and defers to
the senior partner because he can make her life very difficult if he wants to.
And because the senior partner knows she will not refuse work or let her resent-
ment leak out, he just keeps taking advantage of her a little more each time.
The stakes may be lower for Mary than for Delia –
the mommy track versus
but the spectre of exclusion plays out in much the same way:
deportation –
lay low, do what they tell you, and maybe they will let you stay in the
game.
What Mary and Dan should do with these insights I cannot say. What I will
say is that being a “good employer” does not vitiate Mary’s role (however
unwilling or unwitting) in the subjugation of foreign domestic workers any
more than Dan’s being a “sensitive male” exonerates him from reaping the
social benefits of patriarchal privilege. A conscientious effort to eschew the
exploitive potential of the domestic worker/employer relationship is a point of
departure; it is not a destination.
VII. Postscript
On January 30, 1992, Bernard Valcourt, Minister of Employment and
Immigration, imposed a moratorium on the arrival of foreign domestic work-
ers who had not yet been approved for entry into Canada. On April 27, 1992
(as this article was going to press), Valcourt introduced several changes to
the FDM program, including renaming it the “Live-in Caregiver Program”
(LCP).
Under the terms of the LCP, applicants from abroad must have “success-
fully completed a course of study that is the equivalent of Canadian grade 12”
and have “successfully completed six months of full-time formal training in a
field or occupation” related to the specific type of caregiving position they
seek. The LCP appears more flexible than its predecessor with respect to the
type of formal training that may qualify as related to a caregiving occupation
(i.e. childcare, senior home support care or care of the disabled). These require-
345GIenda Simms, President of the Canadian Advisory Council on the Status of Women, quoted
in “Give support to non-whites, feminists told” Toronto Star (5 March 1990) AS.
McGILL LAW JOURNTAL
[Vol. 37
ments have been enacted in the form of amendments to the Immigration Reg-
ulations, 1978.46
The requirement that domestic workers obtain “release letters” from their
employer prior to switching employers has been abolished, though employers
will be obligated to provide a departing employee with a “Record of Employ-
ment” (ROE) showing how many weeks the domestic worker was employed
and a statement of her earnings. The domestic worker may lodge a complaint
with the CEC if the employer refuses to issue an ROE.
With respect to the criteria for landing, the domestic worker must only
demonstrate a minimum of 2 years employment as a full time live-in domestic
worker. There is no longer any requirement to show skills upgrading, savings,
community involvement, etc.
Finally, the government has undertaken to provide domestic workers “with
counselling information outlining terms and conditions of employment and their
rights under Canadian laws” and has pledged that the “counselling role of
domestic workers’ advocacy groups will be supported and encouraged.” 347
Employment and Immigration has also published a new guide entitled The
Live-in Caregiver Program: Information for Employers and Live-in Caregivers
from Abroad”5 which sets out the terms of the LCP with respect to selection
abroad, general rights and responsibilities governing the workplace, and the
requirements for landing.
It is too soon to evaluate the impact of the new LCP on the number, com-
position and treatment of domestic workers, though certain features of the
scheme warrant tentative speculation. To the extent that the LCP retains the
mandatory “live-in” component, the essential nature of the occupation is
unlikely to change dramatically, though the government’s commitment to fur-
34″he Immigration Regulations, 1978 (as amended by SOR/92-214, ss 1, 2) read as follows:
2(1)
“Live-in caregiver” means a person who provides, without supervision, in a
private household in Canada in which the person resides, child care, senior
home support care or care of the disabled.
20(1.1) An immigration officer shall not issue an employment authorization to a per-
son who seeks admission as a live-in caregiver unless the person:
a. has successfully completed a course of study that is the equivalent of Cana-
dian grade twelve;
b. has successfully completed six months of full-time formal training in a field
or occupation related to the employment for which the employment author-
ization is sought;
i. in a classroom setting, as part of the course of study referred to in par-
agraph (a) or otherwise, or;
ii. in a non-classroom setting where the training is part of a course of
instruction given under the direction of a qualified educator or trainer
who provides a rated assessment thereof; and;
c. has the ability to speak, read and understand English or French language at
a level sufficient to communicate effectively in an unsupervised setting.
347Canada Employment and Immigration Commission, Live-in Caregiver Program Questions
andAnswers (Ottawa: Minister of Supply & Services Canada, 27 April 1992) at 1-2.
348(Ottawa: Minister of Supply & Services Canada, 1992).
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nishing domestic workers with counselling information may, if undertaken dil-
igently, reduce the incidence of abuse and exploitation.
Taken in isolation, the relaxing of criteria for landing seems highly com-
mendable. The overall effect of the new scheme, however, is to raise the stand-
ards for initial entry to “compensate” for this slackening of the landing criteria.
This shift in emphasis may in turn have a disproportionately negative impact on
women applying from LDCs, such as the Philippines and the Caribbean nations.
Consider first the requirement that applicants possess the equivalent of a
Canadian grade 12 education. Statistics produced by Employment and Immigra-
tion indicate that 44% of Filipina domestic workers and 49% of Caribbean
domestic workers approved for permanent residence in 1989 did not have 12
years of schooling.3 49 Thus, the new educational requirements would effectively
exclude almost half of the women who currently comprise the bulk of the for-
eign domestic worker population. Moreover, the educational requirements seem
unrelated to the question of whether applicants possess the skills necessary to
perform domestic work. It is even questionable whether it is relevant to the
future economic performance of the women who leave domestic work after
landing, since the educational attainments of women educated abroad often go
unrecognized in the Canadian job market anyway.350 Even more drastic impli-
cations flow from the requirement that applicants must have at least 6 months
of formal training in a caregiving occupation. Under the FDM program, appli-
cants could qualify on the basis of formal training or practical experience. While
British domestic workers frequently came equipped with certification from the
National Nursery Examination Board, the vast majority of women from LDCs
entered on the basis of the latter criterion. This will no longer be possible. The
guidelines for the implementation of the LCP program unequivocally declare
that “[t]raining does not mean experience. Therefore, practical experience, in
whole or in part, which is not part of a formal training program or course, does
not qualify as a substitute for training.” 351 Though it remains to be seen how
stringently visa officers will construe their new mandate, the revised six month
formal training prerequisite could effectively shut the door on the majority of
current applicants from LDCs, most of whom are women of colour.
The shift in emphasis of the LCP toward more rigorous overseas selection
criteria also signals a relative fortification of the “gatekeeping” role of visa offi-
cers abroad at the expense of immigration officials in Canada. The prospects for
349 Canada Employment and Immigration Commission, Permanent Residents Years of Schooling
by Country of Last Permanent Residence for Special Program FDM (Ottawa: Canada Employment
and Immigration Commission, January-December 1989) [unpublished]. To make matters worse for
applicants from LDCs, Canadian immigration officials do not necessarily credit years of schooling
abroad as the equivalent to schooling in Canada, such that foreign applicants may need to demon-
strate more than 12 years of schooling to satisfy the requirement of a Canadian grade 12 education
(Canada Employment and Immigration Commission, “Operations Memorandum” IS 92-08 (24
April 1992) at 4 (this “Operations Memorandum” is a change to the Immigration Manual (Selec-
tion and Control), but has not yet been given an IS number representing its actual location within
the manual).
35See Ng & Estable, supra, note 124 at 30-31.
351″Operations Memorandum,” supra, note 349 at 5.
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[Vol. 37
future self-sufficiency, which form the basis of applications for landed status
under the FDM, will now be the concern of overseas selection officers. This
transfer in the locus of decision making may in turn have repercussions on the
availability of judicial review of administrative decision making. A foreign
domestic worker situated in Canada who is denied her application for landed
immigrant status or who faces deportation may challenge Employment and
Immigration’s actions in a Canadian court, but the rejected applicant in Manila
or Hong Kong is hardly in a position to do so.35 The possibility that bureau-
cratic arbitrariness and unfairness may go unchecked is thus greater in Canadian
visa offices overseas than in Canada, a prospect which can only redound to the
detriment of the persons subject to the new LCP.
To the extent that the terms of the new LCP will eliminate significant num-
bers of women from the pool of eligible applicants, it remains to be seen
whether the stricter criteria will permit the entry of enough domestic workers to
satisfy employer demands. This factor may influence the long term viability of
the LCP as much or more than its political, legal or ethical merits.
352The Pinto case is somewhat exceptional in that it concerns an applicant to the program who
was still in India, but it must be noted that the party before the Court in Canada was her Canadian
would-be employer (supra, note 106).