Why Harris and Hobby Lobby Spell Disaster for Working Women

Retail sales and home healthcare work are two of the three fastest-growing jobs in this country. That’s an important consideration when looking at the decisions the Supreme Court handed down today in Harris v. Quinn and Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores: If you are not affected by these rulings yet, you well could be in the future.

Both 5 – 4 decisions were written by Justice Samuel Alito, a conservative Catholic from New Jersey appointed by George W. Bush, and both rested on narrowly tailored legal arguments that just happen to cut wide enough to impact groups of workers who are almost exclusively female. Harris creates the special designation of “partial public employees” for publicly-funded home healthcare aides who work both for the client and for the state—who are 90 percent female, most of them poor, immigrants, and of color. Hobby Lobby, meanwhile, in deciding whether an employer with religious beliefs can be required to provide health insurance that covers contraception, singles out women by targeting its arguments towards workers who use birth control—but not any other form of healthcare.

As Sheila Bapat, author of Part of the Family? Nannies, Housekeepers, Caregivers and the Battle for Domestic Workers’ Rights, tweeted, “These decisions speak squarely to the value of women’s labor.”

The Harris case was brought in 2010 by Pamela Harris, an Illinois homecare worker who received Medicaid money as wages for caring for her son, who has a disability. An executive order issued by Illinois Governor Pat Quinn the previous year had designated personal assistants caring for disabled adults as state employees, allowing them to be represented by a collective-bargaining agent. Harris and the other plaintiffs were backed in the suit by the well-heeled anti-union group National Right to Work Legal Defense Foundation, and argued that she and other workers should not have to pay the costs of representing her to SEIU Healthcare Illinois & Indiana (SEIU–HCII), the union that represents homecare workers who are paid by the state for their work. The suit claimed that paying representation costs amounted to a forced association that is unconstitutional under the First Amendment.

But Harris’ attorneys also made an emotional appeal about state interference in personal, family matters, despite the fact that many home healthcare workers actually do not care for their own family members.

Homecare and other domestic employees have been long excluded from labor protections given to other workers, and this line of argument taps into a history of failing to see them as “real” workers. According to the ruling, unions will still be able to assess representation fees to workers who are represented by their collective bargaining units but choose not to join the union, provided that they work outside of a private home. But as Bapat noted, the Supreme Court “bought the right to work movement’s claim that ‘the home is not a union workplace’ hook, line and sinker.”

The majority in Harris stopped short of overturning the Supreme Court’s prior decision Abood v. Detroit Bd. of Ed. (1977), which would have reversed the ruling that public-sector workers can be required to pay representation fees to the union that represents them, thereby affecting all public-sector workers. Alito did strongly criticize that decision, calling it “questionable on several grounds” and inviting speculation that the Right to Work Foundation could pursue another lawsuit with even broader impact on public-sector unions. For now, though, the Court instead chose to single out the home healthcare aides as “partial” workers—a not-quite-as-serious type of worker perhaps, who is once again excluded from rules that apply to others.

The home is indeed a different kind of workplace than most others: It is far more difficult to organize a large group of workers who do not share a common shop floor. While it is always a challenge for a union to sign up a large number of workers to pay dues voluntarily when they can get the benefits of union representation without it, it is nearly impossible to do so when that would entail going home by home, individual workplace by individual workplace. The particular union in question, SEIU–HCII, currently represents more than 50,000 homecare aides; imagine having to visit 50,000 individual workplaces to collect dues each month.

One effect of the decision, therefore, may be that unions make it less of a priority to organize homecare workers than other workers from whom they can more easily collect dues. In that event, the raises and improvements in conditions won by unionizing will be harder and harder to achieve for homecare workers.

Alito’s decision in Harris also weighs in on the question of who ultimately employs the growing number of workers laboring under a confusing web of contracts and subcontracts. As Supreme Court watchers at SCOTUSblog explained, “One of the key points of the Harris decision is that the customer (i.e., the patient) is the nominal employer of the home-carer.” Alito argues that while the state provides the paycheck, customers control most of the relationship with the care worker—which in Pamela Harris’ case, implies that her son is in fact her boss. One would not assume that the patient in a hospital is the ultimate employer of the nurse who cares for them, but in this case, it seems, the patient is assumed to be the boss.

Harris and Hobby Lobby are both cases about healthcare and how it will be provided and paid for. In the case of Harris, the Court implies that healthcare paid for by the state is still the individual responsibility of the recipient of care; in Hobby Lobby, an employer required by the government to include healthcare as a part of a compensation package is able to dodge the requirement to provide a certain kind of care for a certain kind of worker—leaving that worker ultimately responsible for her own healthcare. In each case, the ultimate decision of the court is that healthcare is an individual, not a social, responsibility.

The Affordable Care Act, passed in 2010, requires large employers to include in the healthcare plans for their employees certain types of coverage—among them contraceptives. The owners of the Hobby Lobby corporation, a chain of 500 crafting stores with 13,000 employees across the country, object to certain of those birth control methods, and sued to avoid having to provide that insurance. The Court ruled in Hobby Lobby that birth control is different from other forms of healthcare, and that an employer therefore has the right to pass judgment on their employees’ reproductive and sexual healthcare decisions by virtue of their religious beliefs—at least, if the employer is a “closely held” corporation, with at least half its shares owned by five or fewer individuals Such corporations employ more than half of the American workforce, according to one 2009 study. (So as long as you work for someone with some seriously concentrated power, in other words, your birth control is up to their beliefs.)

The majority decision was based on the Religious Freedom Restoration Act (RFRA), a 1993 law signed by Bill Clinton, which says, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The Hobby Lobby ruling applies this to closely held corporations the way it would to nonprofit religious organizations.

As SCOTUSblog noted, “The Court holds that corporations (including for-profit corporations) are ‘persons’ for purposes of RFRA. The additional question was whether corporations can have a religious “belief” within the meaning of RFRA. On that question, the Court limits its holding to closely held corporations, leaving for another day whether larger, publicly traded corporations have religious beliefs.”

This means that workers at Hobby Lobby, relatively low-wage retail employees (though the company has raised its wages to $14 an hour for full-timers, $9.50 for part-timers) will either have to buy their own birth control, or, as SCOTUSblog noted, the Obama administration may figure out a way for the government to pay for the coverage.

Under our current system, employer-funded healthcare is part of compensation provided by one’s employer. If, of course, we had a single-payer healthcare system or something like it, employers would not be required to pay for insurance directly at all (though the longstanding Hyde Amendment, which bans public funding for abortion, implies that conservatives certainly won’t stop at trying to halt direct employer-provided coverage for reproductive and sexual healthcare). Justice Kennedy implies in his concurring decision that the government funding birth control directly would be acceptable, at least to him, but for the moment, I’m not going to re-argue the single payer question. (See my recent piece on the subject for more.)

Though employer-subsidized healthcare is sometimes referred to as a “benefit,” as if health insurance is a gift, it is as much yours as are the wages you have worked for. The decision in Hobby Lobby, then, says that bosses can decide that certain parts of a worker’s compensation are against their religion. Though the decision, as noted above, is tailored narrowly to exclude only contraceptives, it’s worth noting again that employer-provided healthcare became a norm because workers struggled and bargained for it, not because employers decided once upon a time to be nice.

We’ve long known that low-wage workers have very few rights on the job, that their bosses are able to interfere in all sorts of personal decisions. In this case, it’s the particular nature of the benefit denied that is worth exploring for a moment. Eileen Boris, author with Jennifer Klein of Caring for America: Home Health Workers in the Shadow of the Welfare State, has noted that particular ideas of “intimacy and dirt” influence how we think about home healthcare workers and the work they do, which often involves exposure to bodily processes that are extraordinarily intimate. In the case of contraception, too, we see ideas of intimacy and dirt coming into play—sexuality is dirty, and intimate decisions can in part be influenced by one’s boss. By ruling, in theory, that the state cannot make an employer provide health insurance that covers birth control, or require that homecare workers pay the costs of their representation to the union, the court is in fact weighing in on the intimate relationships of thousands of workers.

Justice Elena Kagan, in her dissent to Harris, pointed out that the care provided by homecare workers is better when the workers are valued and paid better—things that have happened since they have had the right to union representation. In this way, she argues, the interests of the workers and the care recipients are not in opposition, as Alito’s opinion implies—they are actually aligned. The statement of Hobby Lobby’s CEO on raising wages indicates that Hobby Lobby, too, understands that workers do a better job when they are properly cared for. That includes, or should include, the right to make their own healthcare decisions, when it comes to contraception or anything else.

The conservatives pushing both of these cases would have you believe that these are cases about freedom—the freedom to avoid a union, the freedom to practice religion. And yet what they wind up being about is reducing power on the job for thousands of mostly women, mostly low-paid workers across the country.

Attacks on all workers’ rights often come first through attacks on those deemed less important workers. When we decide that birth control isn’t a pivotal issue because it only affects some workers, or that homecare workers’ loss is not a loss for us all, we leave the door open for the next attack.

And so, in a country where these feminized personal service jobs are increasingly the only jobs available, the court continues to rule that workers’ rights are less important than the bosses’, that protections on the job are a luxury working-class women can’t afford.

Originally published at InTheseTimes.com