Part of the Family?. Sheila Bapat

National Labor Relations Act (NLRA), which established the right of workers to organize, bargain collectively, and elect union representatives.²⁰ The law also established the National Labor Relations Board, a regulatory body that conducts elections for union representatives and investigates allegations of unfair labor practices.²¹ Though politics have chipped away at its power and scope over the years, the NLRA continues to play an important role in protecting workers’ ability to organize and collectively bargain.²² However, from the beginning, the NLRA has excluded domestic workers.²³

      President Roosevelt did not want the NLRA to exclude any workers.²⁴ The first draft of the act, as introduced by Senator Robert Wagner, defined “employee” as “any person employed by an employer under any contract of hire, oral or written, express or implied, including all contracts entered into by helpers and assistants of employees, whether paid by employer or employee, if employed with the knowledge, actual or constructive, of the employer.”²⁵ During hearings on the bill, Senator David Walsh of Massachusetts pointed out that the law would be challenging for farmers, as “it would permit an organization of employees who work on a farm, and would require the farmer to actually recognize their representatives, and deal with them in the matter of collective bargaining.”²⁶ Subsequent drafts of the bill excluded agricultural and domestic labor, amending the language to state that “the term ‘employee’ shall include any employee . . . but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home” (emphasis added).²⁷ When the NLRA ultimately passed the Senate by a vote of sixty-three to twelve, agricultural and domestic workers were excluded from its protections.

      This exclusion was the result of a deal struck between Roosevelt and legislators from the Southern states. Roosevelt knew that passage of the NLRA and other New Deal legislation required the support of Southern politicians, which was contingent on the ability of the region’s political economy to continue without limitation—in other words, on the continued supply of the cheap labor of black Americans. The compromise position between FDR and Southern politicians was, in the words of Juan F. Perea of the Loyola University of Chicago School of Law, “race-neutral language that both accommodated the southern desire to exclude blacks but did not alienate northern liberals nor blacks in the way that an explicit racial exclusion would.”²⁸ In the mid-1930s, most black workers in the South were engaged in either domestic work or farm labor. Excluding both types of work from the NLRA guaranteed that these workers could not form unions, reinforcing a racial regime of white domination, and a labor regime of extreme exploitation.

      The legislative history of the NLRA does not show overt evidence of racial prejudice. Rather, it reveals concern about the administrative difficulty of extending coverage to agricultural and domestic workers.²⁹ However, Perea argues that this history does in fact have clear racial overtones, and that this racial discrimination renders the NLRA unconstitutional. Evidence of the racial component, he says, is in the exclusion itself: the law could have exempted small businesses, including farms, but instead explicitly excluded specific classes of employees, a decision rooted in Southern legislators’ desire to maintain the economic way of life of the region, which depended on continued exploitation of the African American worker. Though slavery was unconstitutional after the passage of the Thirteenth Amendment in 1865, the exploitation of black workers continued for decades in both domestic and agricultural labor, as it was considered essential to the Southern economy.

      According to Perea, the NLRA aimed to protect workers’ attempts to bargain collectively mainly for the purpose of avoiding strikes and their resulting costs to business. (The NLRA legislative history notes that over a two-year period, thirty-two million working days were lost to strikes.³⁰) Thus, the real objective of the NLRA was to equalize bargaining power between wage earners and large industrialists, in order to avoid strikes and the resulting disruption of the national economy. But the NLRA set an unfortunate precedent: the exclusion of domestic workers became consistent through all labor legislation of the New Deal era.

      Fair Labor Standards Act

      In 1938, Congress passed the Fair Labor Standards Act (FLSA), which required a minimum wage, maximum working hours, and overtime pay for workers. Although FLSA ended regional wage differences and began the process of standardizing the way most employees were treated under the law, it applied a narrow interpretation of the Commerce Clause to exclude numerous employees either explicitly, like agricultural workers, or implicitly, like domestic workers.³¹ Since private enterprise was not seen as affecting interstate commerce, and domestic work was considered a purely private enterprise, Shah and Seville explain, “domestic work was seen as not affecting interstate commerce...and thus the work was originally considered as not part of FLSA’s coverage.”³²

      Like the NLRA, the FLSA excluded domestic workers primarily because Southern legislators wanted to keep wages for black Americans low, with one legislator stating that “agricultural laborers have been explicitly excluded from participation in any of the benefits of New Deal legislation…for the simple and effective reason that it has been deemed politically certain that their inclusion would have spelled death of the legislation in Congress.”³³ Unlike the NLRA, FLSA’s discriminatory intent was much more open and apparent. During the hearings on the legislation, Senator “Cotton” Ed Smith of South Carolina complained about the decay of America as a result of the introduction of African Americans into political society, saying, “I shall not attempt to use the proper adjective to designate, in my opinion, this bill [the FLSA]! Any man on this floor who has sense enough to read the English language knows that the main object of this bill is, by human legislation, to overcome the splendid gifts of God to the South.”³⁴

      The concept of equal pay as established by FLSA was just too radical for this era’s racial politics. Enforcing equal pay would have put workers of color on equal footing with white workers.³⁵ Representative J. Mark Wilcox of Florida stated: “You cannot put the Negro and the white man on the same [economic] basis and get away with it. Not only would such a situation result in grave social and racial conflicts but it would also result in throwing the Negro out of employment and in making him a public charge. There just is not any sense in intensifying this racial problem in the South, and this bill cannot help but produce such a result.”³⁶

      Thus, domestic workers were wholly left out of the first major worker protections the United States had ever seen. The exclusion was so clearly rooted in both racism and sexism that the entanglement of both in rendering domestic work invisible under the law is deeply evident.

      Post–New Deal Domestic Worker Policy and Activism

      During the mid-part of the twentieth century, pockets of domestic worker activism remained but did not emerge as a major force in the civil rights movement. Preeminent legislation of the era such as the Civil Rights Act of 1964 barred discrimination in employment but applied only to employers of fifteen or more people.³⁷ This naturally excluded households, as most would not employ that many nannies or caregivers. The Occupational Safety and Health Act and the Age Discrimination in Employment Act included similar employee-number thresholds.³⁸