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What Do the Recent Supreme Court Decisions Mean for Women’s Economic Security? | The Nation

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What Do the Recent Supreme Court Decisions Mean for Women’s Economic Security?

Supreme Court

(AP Photo/J. Scott Applewhite)

In the final days of its 2013–14 term, the Supreme Court handed down three rulings of major consequence for women. In Burwell v. Hobby Lobby, a 5-4 majority held that requiring some for-profit employers to pay for insurance that covers contraception was a violation of religious freedom. In McCullen v. Coakley, the Court unanimously found that a Massachusetts law creating a thirty-five-foot “buffer zone” around abortion clinics violated protesters’ free speech guarantees. In Harris v. Quinn, the Court ruled 5 to 4 that it was unconstitutional to require homecare workers to pay fees to the unions representing them.

While the McCullen and Harris decisions were adjudicated primarily on First Amendment grounds, and while the Hobby Lobby and McCullen cases, in particular, have often been framed as “culture war” issues, all three rulings have profoundly important implications for women’s economic rights. What does it mean when an employer is able to paternalistically restrict how a worker chooses to use her own health benefits? How does restricted access to abortion and contraception affect women economically? How does the setback the Court dealt to homecare workers—a workforce composed overwhelmingly of women of color—affect their decades-long fight better pay and working conditions, and the feminist project to revalue care work? We explore these issues and more in this week’s roundtable. —Kathleen Geier

Sarah Jaffe: When SCOTUS handed down its decisions, a handful of journalists discussed Hobby Lobby and Harris together—they came out on the last day of the Court’s session, they were written by the same justice (George W. Bush appointee Samuel Alito, certainly no friend of women, workers or women as workers), both split 5-4, and both clearly issues of rights in the workplace. McCullen was discussed separately: the abortion clinic buffer zone ruling came out on a different day, was unanimous, and was written by a different justice (Chief Justice Roberts). But McCullen too is a decision that will affect women (and men) in the workplace.

How many other people go to work each day being accosted, called murderers, and violently threatened as they attempt to cross the parking lot?

An abortion clinic is a fraught location, a front in the so-called culture wars, and an institution with which even some pro-choice people have an ambivalent relationship. Decades of legal and legislative attempts to chip away at Roe v. Wade have isolated abortion clinics and the doctors, nurses and other workers there from other, less controversial medical establishments. Decades of anti-abortion rhetoric that calls doctors murderers has painted targets on the backs of physicians who perform abortions. We understand the need for a buffer zone in order to help the patients reach the clinic in safety, but we should also understand it as a way to keep the workers safe on the job. How many other people go to work each day being accosted, called murderers and violently threatened as they attempt to cross the parking lot?

The attempts by lawmakers to make abortion more difficult, more arduous, more expensive to access have a disproportionate effect on lower-income people. Waiting period? Try taking several days off of work, and in a post–Hobby Lobby world, do you really want to explain to your boss why you need that time? For the 40 million workers in this country who have no access to paid sick time, it means losing several days’ pay for an expensive procedure not covered by insurance if you’re lucky, and added travel costs if you aren’t. Add to that the prospect of having to run a gauntlet of people trying to shame you, harangue you, and yes, possibly out you.


Image created by NARAL Pro-Choice America

It should go without saying that the decision to have a child or not is one of the most profound economic decisions most of us will make in our lifetimes. The Supreme Court this week made it harder for lower-income women to be able to make that choice for themselves. While I support those who argue for the right of all people to enjoy sex on their own terms, we have spent far too little time elaborating the ways in which the “culture war” is a class war.

Take Hobby Lobby. The hashtag #NotMyBossBusiness gave me some hope that the discussion of this case would turn not on religion, hypocrisy or even just on corporate personhood but on the place where Americans’ freedoms are most curtailed: work. It is, after all, the boss, not the government, who has the most say over what we do and say, whether we can pay the rent or feed the kids, the boss who has increasingly sought the right to influence our political choices and what we wear and track our every move and keystroke.

Instead, I have watched photos of people going into Hobby Lobby stores to rearrange letter-blocks to read “pro-choice” flit across the Internet as if the workers who will have to put those blocks back away are unaware of their boss’s power over them. If we were more aware of this decision as one that will affect women not simply as women but as workers, we might stop and ask ourselves what it would mean to actually be in solidarity with the people who work at those stores, to help them get what they need.

The separation between abortion care and other healthcare that I commented on above plays out in Hobby Lobby, which attempts to paint birth control not as a legally required part of a worker’s compensation package, one that allows women to work on an equal footing with the men, but as something outside, different and worse. Or, in the voices of some dismissive commentators, simply less important, not a big deal, something easy enough for women to buy on their own.

If we recognized Hobby Lobby as a workplace issue, we might reply that the people who work at Hobby Lobby stores make between $9.50 and $14 an hour (and those are actually fairly good wages when it comes to retail work) and that $25 a month (if it’s actually that cheap; that depends on which form of contraceptive you’re using) is a significant extra expense if one is, say, raising children on the wages from that job.

Which brings me to Harris, also a decision about mostly women in the workplace and about healthcare. Even more so than the retail service work Hobby Lobby employees do, home healthcare work is gendered labor that women are expected to do for love, not money. The age-old expectation that women are natural carers, that their highest calling is to care for a family—that very same sexist expectation is at the core of McCullen and Hobby Lobby. It’s an expectation that both denies women’s opportunities to work outside the home, and devalues the caring work they do, waged or unwaged.

Kathleen Geier: There is much to be said about the Supreme Court’s deeply disturbing Harris decision. But as Sarah points out, one important aspect of the ruling has gotten buried in the avalanche of more general commentary: its blatant sexism. Writing for the majority, Justice Samuel Alito invented a new, separate-but-unequal category of worker known as the “partial public” employee. Alito’s rationale is that because partial public employees perform care work in the home, they should be treated differently from other employees who work directly for the government. The most significant conclusion of this line of argument is that, unlike public employees proper, partial public workers are not required to pay union contributions. The economic threat this poses to their unions is clear: if enough workers choose to opt out of such contributions, the unions could be bankrupted.

In granting a second-class legal status to labor that is performed in the home, the Supreme Court reinforced patriarchal norms that devalue domestic work and care work.

The ruling is a devastating setback for hundreds of thousands of organized homecare workers nationwide. These workers, who are overwhelmingly women of color, have fought back against the economic exploitation they suffer by joining labor unions. With its decision in Harris v. Quinn, not only did the Court target this largely female workforce, but it also undermined broader feminist goals. In granting a second-class legal status to labor that is performed in the home, the Court reinforced patriarchal norms that devalue domestic work and care work. It attacked the larger feminist project of advancing women’s economic equality by recognizing care as work and insisting that our society compensate female workers fairly.

Domestic workers, including homecare workers, have long struggled to gain the legal benefits and protections that other workers in our society enjoy. It wasn’t until the 1970s that most domestic workers were finally covered under the Fair Labor Standards Act, which offers overtime protections and a minimum wage. Even so, one category of domestic worker was exempted from the FLSA: workers who provide “companionship services,” a group that includes homecare workers. Precisely because the traditional New Deal–era legislation offered no remedies to this group of workers, they need unions to fight for their rights. According to the Economic Policy Institute’s Ross Eisenbrey, because of union contracts, “this almost entirely female workforce has made huge improvements in wages and benefits, in training, and in respect in the states that provide for collective bargaining.” But those gains are seriously threatened by the actions the court took in Harris.

Low-wage homecare workers illustrate a larger problem, which is the role that women’s care work plays in maintaining their deep and persistent economic inequality. Directly, there is the opportunity cost that comes when women cut back hours or drop out of the paid labor force to provide care; economist Nancy Folbre has referred to this cost as the “care penalty.” Unpaid care work also affects women’s compensation in the paid labor market in ways that are less direct. Research has shown that a portion of the gender pay gap is attributable to the fact that women with children are, on average, paid less than their otherwise identical counterparts, regardless of whether they’ve ever taken time out of the work force to devote themselves to full-time motherhood. The disrespect associated with care is so strong that working in a caregiving occupation is associated with a 5 to 10 percent wage penalty, even when skill levels, education, industry and other observable factors are controlled for. Clearly, feminists have a powerful interest in revaluing care, a cause that has suffered a serious setback with Harris.

Why do we devalue care work in the first place? Eileen Boris and Jennifer Klein point out in their excellent history, Caring for America: Home Health Workers in the Shadow of the Welfare State, that intimate care work is associated with the stigma of handling dirt, bodily fluids, mess. Additionally, in a society based on the myth of individual autonomy, care work provides an uncomfortable reminder of how profoundly the condition of dependency structures human existence. Boris and Klein also argue that the “devaluation thesis assumes the unworthiness of the labor because of the race, class, and gender of the workers.” But more than anything else, they say, what ensures the continuing devaluation of this type of labor is “the way the state chooses to structure it.” With the Harris decision, the state has elected, as it has so often in the past, to structure care work in a way that ensures the continuing economic inequality of those who perform it.

Already, Harris is having an effect. Observers believe that the gains of recently organized home-based Connecticut childcare workers are threatened, because the Harris decision would likely apply to them. In addition, in one of a series of end-of-term orders, the Court sent back a Michigan case to the lower courts “for further consideration in light of Harris v. Quinn.” In These Times’s Moshe Marvit argues that since the legal issues in the Michigan case were somewhat different from those in Harris, the Court’s move “may be a quiet expansion of the Harris decision.”

It would hardly come as a shock if the Roberts Court built on the relatively narrow Harris decision to issue far more expansive rulings against labor unions. According to The New Yorker’s Jeffrey Toobin, “in confronting a politically charged issue, the court first decides a case in a ‘narrow’ way, but then uses that decision as a precedent to move in a more dramatic, conservative direction in a subsequent case.” Toobin believes that the Court may eventually use Harris as a precedent for a more radical move against public sector sector unions generally. If they do so, it would be a serious blow to women’s economic equality. As a recent study documents, women in labor unions earn significantly highly wages than their non-union counterparts, and this finding holds for every educational level, from women who dropped out of high school to those with graduate degrees. Unionized workers are also significantly more likely to receive employer-sponsored health insurance, retirement benefits and paid family and medical leave. To the extent that the Court weakens unions, it also undermines women’s economic power in our society.

For now, however, the Court has carefully and cleverly restricted its ruling to one vulnerable group: the overwhelmingly female, nonwhite, low-income group of workers who labor in private homes and receive their wages from the state. The Court’s decision rests on the dubious contention that homecare workers are not public employees. But these workers are paid by the government and the vital work they do, which serves broader public goals of improving public health and enabling families to balance work and care responsibilities, is anything but private. By weakening their right to economic redress through unions, the Court increased the state’s—and by extension the taxpayer’s—complicity in maintaining low-wage markets. We are low-wage employers now, and it is women, and most especially immigrant women, women of color and poor women, who continue to pay the price.

Sheila Bapat: As analyses of the Supreme Court’s June 30 ruling in Harris v. Quinn continue to swirl, the potential of this decision to weaken public sector unions becomes more and more clear. The “right to work” movement is exploiting domestic workers’ uncertain status and, as Kathleen notes, the bias against women performing care work, to begin dismantling public sector unions. After the ruling, Tennessee Senator Lamar Alexander weighed in to support the Supreme Court’s ruling, stating that that Illinois’s collective bargaining program is a “disturbing union scheme to turn private homes into unionized workplaces.”

As a result of this ruling, funding for collective bargaining efforts—efforts that can help raise domestic workers’ wages and improve their overall working conditions—will likely dwindle. Yet there are policy changes we can make to lessen the blow.

How can domestic workers seek higher wages and improved benefits, given the Harris decision setback?

Raise the federal minimum wage, for all workers. A wage hike for all workers would improve earnings for domestic workers, too. Unfortunately, in April the US Senate failed to raise the federal minimum wage from $7.25 to $10.10 per hour. While states and localities have been succeeding in raising wages, disparities in wages across states have been found to hurt domestic workers. Some states that did raise minimum wages are still excluding domestic workers from that guarantee—this includes Rhode Island, West Virginia and Delaware. An across-the-board wage increase for all workers—which is what a federal wage hike can accomplish—helps avoid this disparity.

Create a federal program that pays and advocates for domestic workers. It is primarily Medicaid dollars that pay domestic workers in state programs. We could envision a more robust federal program— as part of Medicaid or outside of it—to support domestic workers’ wages and working conditions. We could envision a federal “association” of such workers that solicits comments from fellow workers, holds public meetings, makes recommendations to the state and speaks on behalf of domestic workers. Given the rising demand for care workers in the United States, it makes sense to develop a federal program that ensures the protection of this crucial workforce.

Support state domestic workers’ bills of rights. The domestic workers’ movement secured domestic workers’ bill of rights in New York in 2010, which expands overtime protections for workers, provides a day of rest and disability benefits. Similar legislation has emerged in California, Hawaii and, most recently, Massachusetts. Most of these bills expand overtime protections for workers. The Massachusetts legislation may be particularly important to look at, as it includes model provisions for workers who are not unionized such as a worker’s right to a contract with their employer that spells out wages, hours and expectations.

Support worker centers who advocate for domestic workers. Non-union actors like 501(c)3 worker centers have been crucial to advocating for domestic workers already. Worker centers may become more important given this ruling. The domestic workers’ movement comprises many of these centers and has achieved success by appealing to the public and to state legislators directly. The legislation these worker centers advocate for can ensure that workers are entitled to the state’s minimum wage so that exclusions like those found in Delaware, Rhode Island and West Virginia are eliminated. The local and national campaigns undertaken by worker centers also keep domestic workers’ rights on our local and national radar; they help us remember why domestic work is so crucial and why domestic workers should have better working conditions.

Federal legislation may not be politically plausible right now given that Congress cannot even raise the minimum wage. State-focused campaigns aimed at addressing the effects of Harris v. Quinn may have more success. Regardless, in light of the ruling in Harris v. Quinn, we should begin to explore creative solutions to improving wages for domestic workers and other public sector employees—solutions that can improve conditions both for workers and for those who need care.

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