SCOTUS Just Undermined Thousands Of Domestic Workers’ Rights

On Monday, the Supreme Court of the United States sided with the right to work movement and weakened the ability of hundreds of thousands of U.S. domestic workers to collectively bargain for higher wages. In its 5-4 ruling on Harris v. Quinn, the Court held it is a violation of the First Amendment for the state of Illinois to assess dues on home care workers for the purposes of paying for collective bargaining efforts. This decision affects the several states who have in-home care programs like Illinois’s program, including California, Oregon, Washington, Massachusetts, and Missouri.

And in its holding, the Court is analyzing the First Amendment in a way that further entrenches the notion that domestic work is not “real” work. It is a blow to significant progress made by the domestic workers’ movement and public sector unions to show that domestic labor is indeed real labor, worthy of the same economic protections as other work.

The majority decision in Harris v. Quinn, written by Justice Samuel Alito, held that because domestic workers are technically employed by the state of Illinois and by the recipients of care themselves (people who are typically elderly, ill or with disabilities), they are therefore only “partial” public employees and thus cannot be compelled to kick in a fee that supports collective bargaining efforts, that such a compulsion is a violation of their First Amendment rights.

The dissent, written by Justice Elena Kagan, points out that while recipients of care can and should manage their relationship with their caregiver, the state of Illinois still has “sole authority” over the terms and conditions of domestic workers’ employment.

Justice Kagan also holds that the longstanding precedent of Abood v. Detroit applies in this case. Abood, decided in 1977, held that states may assess fees to support collective bargaining efforts without violating the First Amendment.

Why did Alito and his conservative brothers on the Court (literally, all 5 joining in the majority are men) rule this way? Principally, the Court bought the argument that “a home is not a union workplace.” The Court bought into the idea that the specifics of the domestic worker’s work arrangement causes domestic work to fall outside of the Abood framework.

The plaintiff in the case, Pam Harris, is represented by the National Right to Work Legal Defense Foundation. Harris and the “right to work” movement argued that the fees to support collective bargaining violate her first amendment rights and that she “object[s] to her home being a union workplace.”

The majority disagreed with the argument put forth by the state of Illinois — and its Governor, Pat Quinn — that states do have authority to assess such dues “to support legitimate, non-ideological, union activities germane to collective-bargaining representation” for home care workers, just as they would teachers or any other public sector employee.

True, the Court’s ruling preserves states’ ability to assess fees for most public sector employee collective bargaining, and that is a real relief. Many had feared this decision would be a way to gut public sector unions as a whole.

Yet this decision has a deeply troubling effect on domestic work, specifically, and thus disproportionately affects women of color. The Court’s ruling, which will make it harder for many domestic workers to earn higher wages, has essentially entrenched the historic devaluation of domestic work.

Domestic workers — mostly women of color who care for children, elderly, disabled and ill — are among the lowest-paid workers in the United States. There are some 2 million domestic workers in the country, many of whom are serving the most elderly and disabled populations as part of programs like the one in Illinois. Several states have, like Illinois, established programs through which they pay domestic workers to care for their state’s most vulnerable populations. These unions have been shown to reduce worker turnover as well as improve care for those who need it most.

Justice Kagan and the other dissenters — Sotomayor, Ginsburg, and Breyer — understand this. As Kagan notes in her dissent, “Workforce shortages and high turnover have long plagued in-home care programs, principally because of low wages and benefits. That labor instability lessens the quality of care which in turn forces disabled persons into institutions and increases costs to the state.”

But the majority in this case was not swayed by the clear precedent of Abood or these clear policy implications of this decision. The majority, in its ruling, is also clearly out of touch with emerging trends: home care work is a vastly growing sector in high demand, given the increasing aging population. The domestic workers’ movement has gained traction in recent years through fighting this idea that domestic labor is not real work — all of which the majority of the Supreme Court seems to ignore.

And the right to work movement’s belief that “a home is not a union workplace” is certainly not a view that the many, many women engaging in this labor would buy into (Pam Harris notwithstanding). Last year I interviewed Janelle Blake, a home-care worker in Vermont, who earns $9.78 per hour. Vermont established its union for publicly-paid domestic workers in 2013, joining Illinois, California, Oregon, Washington, Massachusetts, and Missouri. Blake supported this law in Vermont.

Blake started her career as home care provider more than a decade ago, caring for a man with Alzheimer’s. Later she worked as a special education teacher. Blake and her husband, who works as manager of a convenience store, have raised three adult children working in the education and care sectors.

“We were afraid we may lose our home at one point,” Blake told RH Reality Check last year. “It got really scary, that’s why I’m working so hard. We’ve always worked very hard for everything we have, we started on food stamps came up from there.”

The Supreme Court’s ruling in Harris v. Quinn is a blow to workers like Janelle Blake and the work they do day in and day out. As a fundamentally political body, the Supreme Court is, unfortunately, entrenching the idea that work that takes place inside the home is not real work.

Sheila Bapat is a former employment attorney who now writes about gender and economic justice. Her book about the U.S. domestic workers’ movement, Part of the Family? Nannies, Housekeepers, Caregivers and the Battle for Domestic Workers’ Rights, was released by Ig Publishing in May.