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Human Rights and the Garment Industry

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Human Rights and the Garment Industry (DIS)ASSEMBLING RIGHTS OF WOMEN WORKERS ALONG THE GLOBAL ASSEMBLY LINE: HUMAN RIGHTS AND THE GARMENT INDUSTRY Laura Ho* Catherine Powell** Leti Volpp*** "My sisters make my blouse .... [A]re my hands clean?"' Introduction On August 2, 1995, a multi-agency raid found sixty-seven Thai women and five Thai men kept in slave-like conditions in an apartment complex in a Los Angeles community called El Monte. Under the constant surveil- lance of armed guards and confined behind a ring of razor wire, they had been held for several years and had been forced to work as garment workers up to eighteen hours per day for far less than the minimum wage. They were refused unmonitored contact with the outside world and threat- ened with rape or harm to themselves and their families if they tried to escape. On one occasion, a worker who tried to escape was brutally other workers as an exam- beaten, his photograph taken and shown to the 2 ple of what might happen to them if they too tried to flee. * NAPIL Fellow, Asian Law Caucus. J.D., Yale Law School, 1994. **Skadden Fellow, NAACP Legal Defense and Educational Fund (Black Women's Employment Project). J.D., Yale Law School, 1992. ***Skadden Fellow, American Civil Liberties Union Foundation Immigrants' Rights Project. J.D., Columbia Law School, 1993. The authors acknowledge the generous support of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School, the MacArthur Foundation Individual Research and Writing Program, and the Ford Foundation Fellowship in Public International Law. Furthermore, we thank the following individuals for their advice and encouragement: Frances Ansley, Abram Chayes, Lance Compa, Kimberl6 W. Crenshaw, Lisa Crooms, Brent Edwards, Lora Jo Foo, Inderpal Grewal, Desma Holcomb, Harold Hongju Koh, Lisa Lowe, Alissa McBride, Phoebe McKinney, Nina Perales, Mark Quarterman, Damon Silvers, Julie Su, Dorothy Q. Thomas, Patricia Williams, Joyce Yu, Helen Zia, and the participants in the 1996 Western Law Teachers of Color Conference, especially George Bisharat, John 0. Calmore, Ibrahim Gassama, Maria Ontiveros, and Harry G. Prince. We also thank our CR-CL editors, Aida Bekele, Andy Jackson, and Liza Velazquez, as well as Michelle Kim and Brian Wong. I SWEET HONEY IN THE RoCK, ARE MY HANDS CLEAN? (Flying Fish Records 1988). 2 First Amended Complaint, Bureerong v. Uvawas, No. 95-5958 (C.D. Cal., filed Oct. 25, 1995) (Collins, J.) [hereinafter El Monte Complaint]; see also Kenneth B. Noble, Thai Workers Are Set Free in California, N.Y. TIMES, Aug. 4, 1995, at Al. Echoing both Black slavery and the bracero program, these workers were imported from other countries to the United States. Their trafficking is also in some ways analogous to the international trafficking of women for sexual labor or domestic work. See SAUNDRA P. STURDEVANT & BRENDA STOLZFUs, LET THE GOOD TIMES ROLL: PROSTITUTION AND THE U.S. MILITARY IN ASIA (1992) (discussing sex workers); GEERTIE LYCKLAMA A NIJEHOLT, TRADE IN HeinOnline -- 31 Harv. C.R.-C.L. L. Rev. 383 1996 384 Harvard Civil Rights-Civil Liberties Law Review [Vol. 31 Such conditions constitute the essence of slavery.3 An ideological remnant of Black slavery that has survived despite the enactment of the Reconstruction amendments is the misguided notion that certain catego- ries of people can be mistreated through employment arrangements aimed at placing them beyond legal protections as well as through constructs of citizenship that deny them full enjoyment of human rights.4 The fact that immigrant women, Black women,5 and women of color generally continue to occupy disproportionately the most degraded positions on the economic MAIDS: ASIAN DOMESTIC SERVANTS IN MIGRATION THEORY AND PRACTICE (Inst. of Social Studies Working Paper No. 10, 1989) (discussing domestic workers). 3 See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1872) ("[W]hile negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery ... [for instance, slavery in the] Mexican peonage or the Chinese coolie labor system."); United States v. Booker, 655 F.2d 562, 565 (4th Cir. 1981) (upholding conviction for migrant farm labor abuses under 18 U.S.C. § 1583 and describ- ing "the broad and sweeping intention of Congress during the Reconstruction period to stamp out the vestiges of the old regime of slavery and to prevent the reappearance of forced labor in whatever new form it might take"); see also Neal Kumar Katyal, Men Who Own Women: A ThirteenthAmendment Critique of Forced Prostitution,103 YALE L.J. 791, 806-09 (1993) (surveying Thirteenth Amendment jurisprudence). 4The manipulation of notions of "citizenship" to deprive certain individuals of rights and remedies under law can be traced back through Supreme Court jurisprudence to the Dred Scott case. [Tihe original Constitution presented the edifying picture of a government that bestowed rights on people and persons. not with some legal construct called citizen. This idyllic state of affairs was rudely disturbed by the crisis of the 1850s [when] the Supreme Court seized on the concept of citizenship in the Dred Scott case, in a futile and misguided effort ... to resolve the controversy over the spread of slavery. ALEXANDER BICKEL, THE MORALITY OF CONSENT 36 (1975) (emphasis added) (citing Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), in which Justice Taney held that citizenship did not attach to Scott because he was "a negro of-African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves"); see also Dorothy Roberts, Book Review, Welfare and the Problem of Black Citizenship, 105 YALE L.J. 1563, 1574 (1996) ("From the founding of the nation, the meaning of American citizenship has rested on the denial of citizenship to Blacks living within its borders."). 5 For the purpose of this Article, we use the term "Black" rather than "African American," because the former is more inclusive of peoples from Africa and the Caribbean living in the United States who do not necessarily identify as "African American" At the same time, our intention is not to elide significant cultural differences through this transnational gesture, nor to deemphasize the importance of personal agency in self-iden- tification. Additionally, we capitalize "Black." Like Asian American and Latina, Black is a category embracing several groups who may also self-identify according to national origin (for example, Haitian American). Moreover, the term "Black" captures not merely pheno- type or skin color, but a category of peoples who share a common history of racial discrimination in the United States. It is an accident of history that "Black" continues to be decapitalized (both in a literal and symbolic sense), while other racial groups are capitalized. As a matter of principle, we also capitalize "White" Much of the same logic applies, except rather than sharing a common history of racial discrimination, Whites have enjoyed a common history of racial privilege. HeinOnline -- 31 Harv. C.R.-C.L. L. Rev. 384 1996 1996] Human Rights and the Garment Industry ladder triggered the search for collaborative strategies that spawned this Article. Some observers would like to explain away sweatshops as immi- grants exploiting other immigrants, as "cultural, '6 or as the importation of a form of exploitation that normally does not happen here but occurs elsewhere, in the "Third World." While the public was shocked by the discovery at El Monte, garment workers7 and garment worker advocates have for years been describing abuses in the garment industry and have for such abuses to manufacturers and retailers who ascribed responsibility8 control the industry. Sweatshops, like the one in El Monte, are a home-grown problem with peculiarly American roots.9 Since the inception of the garment in- dustry, U.S. retailers and manufacturers'0 have scoured the United States 6 For an example of this view, see Jane H. Lii, Week in Sweatshop Reveals Grim Conspiracy of the Poor, N.Y. TIMES, Mar. 12, 1995, at A1, 40 (describing exploitation in a contract shop and noting, "Everyone quotes a Chinese saying: 'The big fish prey on the little fish, the little fish in turn prey on the shrimp, and the shrimp can only eat dirt."'). For criticism, see James Ledbetter, The Times: Tryin' To Find Chinatown, VILLAGE VOICE, Apr. 18, 1995, at 9 ("[S]ome Asian activists told me they thought [Lii's article) reinforced stereotypes by portraying worker exploitation as a Chinese cultural tradition.'). See also Laura Ho & Leti Volpp, Look Also Who Profitsfrom Sweatshops, N.Y. TIms, Mar. 19, 1995, at 14 (criticizing article for laying blame for violations solely on contractors and failing to explain the role of manufacturers and retailers in the industry); Leti Volpp, (Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57 (1994) (discussing the depoliticizing effect of using "culture" to explain behavior). 7We use the term "garment workers" in this Article to refer to workers engaged in the production of clothing. A synonymous term is "apparel workers." We generally do not use the term "textile," referring to the manufacture of cloth, because we are limiting the scope of this Article to workers who cut and assemble clothing. 8See Lora Jo Foo, Laura Ho, & Leti Volpp, Manufacturers and Retailers Must Be Liable, L.A. TIMES, Aug. 24, 1995, at B9 (describing El Monte factory as "more egregious than most" but stating that "sweatshops flourish throughout ...the underground econ- omy"); John Rofe, Officials Close in on Sweatshops, SAN DIEGO UNION-TRIB., Aug. 26, 1995, at A3 (quoting Asian Pacific American Legal Center attorney Julie Su, "There's no question that some of the conditions [the El Monte workers] were kept in are rampant throughout the garment industry[,] .
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