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A shameful setback for home care worker rights

Supreme Court focus on public-private divide mischaracterizes vast female, immigrant workforce as ‘just moms’

July 3, 2014 12:00AM ET

On Monday in a 5–4 decision, the U.S. Supreme Court ruled in Harris v. Quinn that home care workers paid through Medicaid do not have to join a public employees’ union or pay union fees, because they are not bona fide public employees.

“Today’s decision is good news for our nation’s families, who are now protected from a disturbing union scheme to turn private homes into unionized workplaces,” said Sen. Lamar Alexander, R-Tenn., the ranking member of the Senate Health, Education, Labor and Pensions Committee. “The Supreme Court has preserved the First Amendment rights of dedicated parents like Pamela Harris to not associate with a union and keeps union hands out of the pockets of those providing care to their disabled family members.”

In celebrating the court’s twisted interpretation of freedom of speech to curtail collective bargaining, Alexander perpetuated two myths: that Harris — a mother who takes care of her adult disabled son and receives state assistance to do so — and the more than 25,000 home aides and attendants working for the state of Illinois were “just moms” (as the exurban, white and married Harris described herself) and thus not employees; and that the union had no business representing Harris before the state to win higher wages, benefits, training, respect and dignity.

On the face of it, the Harris case is about whether the state of Illinois is a co-employer of home aides and attendants who are compensated through its Departments of Disabilities and Rehabilitation Services. If it is, the state can require that those who decline to join an attendants’ union pay a “fair share” fee to offset the expense of collective bargaining. If not, as the court just determined, then these workers cannot be forced to pay union fees.

Conservatives hailed the decision as a protection of freedom of association and free speech. But in reality, the court’s decision weakened the collective bargaining power of 1.8 million workers in the home aide sector, one of the fastest growing occupations in the nation — and trampled upon the livelihood and rights of low-wage women, disproportionately women of color. The court deliberately chose to ignore the ways in which home care is a modern, globalized service workforce. Consequently, the justices could conveniently deny that labor standards and rights apply.

Historic state involvement

Once considered economically marginal, home care has moved to the center of the U.S. economy. While capital may migrate globally to produce goods and services, care work stays home. Over the past 30 years, it has also become the front line for the new face of labor, with female, African-American and immigrant care providers populating a vast workforce swelled by an aging population, by a vigorous movement for disability and independent living rights and by the ability of the medical sector to prolong life. About 400,000 home care workers have joined unions, including the 25,000 rehabilitative agency attendants in Illinois who are specifically affected by the ruling.

The court’s emphasis that these workers are “just moms” is an inaccurate, obfuscating frame that well-funded, conservative anti-labor groups gambled on to stop this new front in labor organizing. The suit originated with the National Right to Work Legal Defense Foundation, which for four decades has sought to eliminate unionism.

The court’s majority accepted the plaintiff’s argument that taking care of one’s own disabled children in the home is what female family members should do: provide support as unpaid labor of love and obligation — which by definition means they are not workers. The home, in the eyes of the court’s conservative majority, is a private place that a union has no business invading. “Personal assistants spend all their time in private homes,” Justice Samuel Alito wrote in the majority opinion. Union organization therefore  “does not further the [public] interest of labor peace.”

By refusing to understand home care as work and personal attendants as employees, the court has created a legal fiction that elevates abstract freedoms at the expense of women’s lives.

But history contradicts this view. The idea of the private, insular home, untouched by market or state, is a myth. Government has long shaped the conditions of home care and determined its workforce. During the 1930s, New Deal public works programs established in-home care to provide support to incapacitated mothers with young children, the chronically ill and disabled persons; they also aimed to put unemployed African-American women to work. After World War II, such workers became employees of public welfare and health departments. Government increased this labor market through its War on Poverty initiative in the 1960s and workfare programs in the 1970s and 1980s. Throughout, government set wages, recruited workers, established training and monitored performance. The provision of home care as long-term care, in other words, was based in public welfare — both the recipients and the workers had to be low-income. Through home care, welfare agencies therefore connected what went on in the home with the public interests of the state. 

Artificial boundaries

The Harris decision aims to insulate the home from law and labor standards; reprivatize care and strip it of the status of so-called real work; and thereby eliminate the need for and legitimacy of unions. The emphasis on the imperative of separating what is private from what is public is anxiously woven throughout the majority opinion.

Whereas the court’s majority deliberately evades the nature of care work, Justice Elena Kagan, in her dissent, keenly grasps the reality. “The dispersion of employees across numerous workplaces” is a compelling reason, she wrote, for Illinois “to want to ‘address concerns common to all personal assistants’ by negotiating with a single representative … The individual customers are powerless to address those systemic issues; rather, the state — because of its control over work-force wide terms of employment — is the single employer that can do so.”

The state of Illinois, in 2003, had agreed with that assessment. Collective bargaining, it decided, best enabled the state to reduce labor turnover in a low-wage sector, attract and maintain good workers, provide stable, improved service and monitor the quality of care. Given the nature of the “public interests at stake,” Kagan asserted, the state determined that the workers are public employees. The state also chose to share such authority with disabled consumers to accommodate particular needs. Yet, as Kagan rightly noted, there is “no warrant for holding that joint public employees are not real ones.” To do so is purely a function of ideology.

While Harris feared a potential restriction in her freedom of association and free speech, union activists such as Chicagoan Flora Johnson, an African-American mother of an adult son with cerebral palsy, and the chair of the Service Employees International Union Health Care local’s executive board, face the loss of the vehicle that has allowed them a modicum of recognition, rights and material improvement — at least a 50 percent wage increase and health benefits over the past decade. With the help of the union and a sister organization, Action Now, Johnson was able to successfully fight foreclosure of her modest house, to which she had added a ramp and other improvements for the mobility of her son, who uses a wheelchair. Her ability to care for her son depended on unionization: “So many mothers in my position have faced an awful choice: Stay at home to care for a child with a disability, or see them forced into institutions. Many of those mothers simply couldn’t afford to stay home if home care didn’t pay a decent wage.” Far from an invader, the union protected Johnson’s home and privacy.

The male justices of the court’s majority repeatedly display a discomfort with blurred lines and an ideological imperative to separate home from work and the public from the private — as if that is really possible. But care overflows such artificial boundaries. By refusing to understand home care as work and personal attendants as employees, the court has created a legal fiction that elevates abstract freedoms at the expense of women’s lives. It pushes them back into the shadows of homes, hidden from the rights of economic citizenship. 

Eileen Boris and Jennifer Klein are co-authors of "Caring for America: Home Health Workers in the Shadow of the Welfare State," which became the basis for an amicus brief in support of Illinois and SEIU in Harris v. Quinn. Boris is Hull Professor of Feminist Studies at the University of California, Santa Barbara. Klein is professor of history at Yale University and a public voices fellow at the OpEd Project.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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