Taunya Lovell Banks.Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law. The author thanks her research assistant, Carrie Bland, her sisters at the Black Women and Work Project (funded by the Ford Foundation), Regina Austin, Isabelle Gunning, and Penelope Andrews for their comments on earlier versions of this essay, and the Journal editors.
Feminism's adoption of the liberalist assumption that "propertied individualism affords the necessary foundation for .. . freedom and equality" led feminists to focus on gender to the exclusion of class and race.1
In the spring ofl990, Lillian Cordero, an undocumentedPeruvian woman, appliedfor ajob with a Connecticut couple. The couple, a corporate lawyer and a law professor, advertisedfor a live-in nannyfor their seven-month-old son. The nanny also would do light housekeeping and cook dinners.2 The couple hired Lillian along with her husband, also an undocumented worker. Lillian worked many weeksfor up to seventy hours in exchangefor a weekly wage of $250 plus room and board.3 During those weeks herhourly wage amounted to no more than $3.50, less than the minimum wage.4 Lillian's employer did not pay Social Security taxes on those wages.
In December 1992, Zoe Baird, Lillian's employer, became the first woman nominated as Attorney General of the United States.5 Baird subsequently withdrew her nomination following the disclosure that she failed to pay Social
Security taxes for her undocumented live-in childcare worker.6 At the time of Baird's nomination, only twenty-five percent of households with domestic workers complied with the Social Security requirements.7 Baird, like a majority of working affluent women, knowingly and unlawfully failed to pay Social Security taxes for her domestic employee.8
Initially, most senators and political analysts discounted the effect of fhis disclosure on Baird's nomination, but by January talk radio was calling the controversy Nannygate.9 Some news commentators framed the issue solely in class terms.10 The issues raised by Nannygate, however, are much larger, reflecting how work and workers are constructed and valued in American society. Nannygate also raises hard questions long avoided by American feminists about mothering as women's work.
Influenced by Zoe Baird's plight, Congress enacted the Social Security Domestic Employment Reform Act of 1994, popularly known as the Nanny Tax law.11 The new law increases the threshold amount of employee wages required to trigger the tax from $50 quarterly to $1000 annually and requires annual instead of quarterly payments of the tax to ease the reporting burden on employers like Baird.12 During the congressional hearings on this legislation, Florida Representative Carrie Meek, a Black woman, said she spoke for the "nameless, faceless [household] workers" who were not considered during the Zoe Baird controversy.13 She put a face on these women-her sisters', herPage 4mother's and herown.14 While Representative Meek spoke of Black women as household workers who needed financial security, other legislators spoke of childcare workers as babysitters and nannies who created problems for their employers.15 Throughout the legislative debate little attention was paid to the real nanny at the heart of the Nannygate controversy, Lillian Cordero, the undocumented Peruvian woman.
This essay explores how gender, race, class, and immigrant status influence legal policies affecting paid household workers. The legislative response to Nannygate reflects legal feminists' ambivalence toward mothering. Legal feminists' failure to reconcile the tension between a career outside the home and mothering left them unable to use Nannygate as an opportunity to push for adequate legal protection and regulation of paid household workers.
The first section briefly summarizes how the public-private distinction in law effectively removes paid domestic work from government scrutiny and regulation, facilitating the exploitation of domestic workers. By failing to challenge the artificially created legal distinction between labor performed in the public versus private sphere, legal feminists and supporters of the Nanny Tax law deflect attention away from the real problem-laws that perpetuate the notion that childcare, and other forms of domestic labor traditionally performed in the home, is women's work with little economic value. I also argue that nanny, the term used by affluent professional women, romanticizes and conceals the exploitative nature of the employer-employee relationship. The term nanny genders as f emale, and normalizes surrogate childcare and domestic labor in the private sphere, reinforcing the notion that men are entitled to women's domestic labor.
The next section discusses the public and legislative debates surrounding the enactment of the Nanny Tax law. The congressional debate on the Nanny Tax law, although couched in terms of protecting working women's interests, reflects the interests of powerful white men in maintaining paid domestic work as women's work. As a result, the legislative response to Nannygate fails to address the problems of poor working immigrant women like Lillian Cordero. By Americanizing the domestic workers discussed in these debates, LillianPage 5Cordero, the original nanny of Nannygate, was erased. Her erasure perpetuates an exploitive public policy that uses underpaid foreign workers to perform labor in the home, including childcare work.
In the third section I explore why both affluent working women and Black feminists distanced themselves from Zoe Baird. The affluent women argued class differences, while Black feminists argued racial differences separated them from Baird. I argue that both groups adopt themes and perspectives similar to the legislative narratives adopted by Representative Carrie Meek and her powerful white male legislative opponents. Furthermore, this section examines how Black feminists adopt a nationalistic view of the problem, ignoring the global trade in domestic workers.
The fourth section looks more closely at how federal law facilitates the migration of foreign-born women immigrants, concluding that there is little difference between the exploitation of undocumented workers like Lillian Cordero and documented foreign-born domestic workers. The fifth section briefly explores affluent working women's ambivalence and discomfort about Nannygate and contrasts these reactions to those of Black feminist legal scholars. I conclude that Black feminists see the racial dynamics surrounding domestic labor, but conflate race with class, ignoring the importance of citizenship in claiming rights. I argue that Black feminists do not fully acknowledge the complex hierarchy of paid domestic work in the United States.
In the final section I conclude that Nannygate represents a missed opportunity for all feminists. Domestic workremains under valuated and under regulated because cheap female household workers are so readily available. Nannygate was an opportunity for a dialogue about the gendering of domestic work and the application of the public-private distinction to paid domestic workers. In addition, Nannygate was a missed opportunity for a public debate about whether "mothering" is only women's work. These are core feminist issues.
An analytical starting point for a more global approach to the problems represented in the Nannygate incident is what Mari Matsuda characterizes as a bottom-up analysis.16 Focusing on working women at the bottom of the labor hierarchy displaces over-reliance on a race-based analysis adopted by some Black feminists. A more global feminist analysis does not always assume that Blacks occupy the bottom rung of any hierarchical labor structure in the United States. Affluent, native-born Black working women may have differentPage 6interests from working class women, even Black working class women. Race and gender, alone or intersected, are inadequate analytical frameworks in which to discuss domestic work.
Since housewives traditionally did domestic work for no pay,17 domestic work has little or no economic value. It "takes place outside the boundary of the world's economy as men see it... ."18 Joan Fitzpatrick and Katrina R. Kelly, writing about the Asian "maid trade,"19 posit that the increased demand for household help by affluent women in Asian countries may reflect their internalization of the low social value ascribed to home care.20 Their point applies equally to affluent working women in the United States.
The names we call women who labor as resident childcare workers reinforce the noncommercial nature of domestic work. Names like babysitter and nanny, a child's pet name for a caregiver,21 mask the value of childcare work. Society commonly believes that young children are not capable of any serious learning; thus, childcare workers are not...