Laws of Care: The Supreme Court and Aides to Elderly People

Laws of Care: The Supreme Court and Aides to Elderly People

There’s no place like home”—unless you’re one of the 1.4 million home aides who assist elderly and disabled people but whom the Supreme Court last June abandoned to the feudal manors of the past. In Long Island Care at Home v. Evelyn Coke, the justices unanimously determined that the Department of Labor had the authority to place providers of home care outside the labor law. For seventy years, the Fair Labor Standards Act (FLSA) has guaranteed minimum wage and overtime compensation to the nation’s workers, but somehow one of the fastest growing occupations of the twenty-first century doesn’t deserve the status and protection of formal employment.

Even Ruth Bader Ginsburg, the court’s champion of women’s rights, let anxieties over the availability, affordability, and quality of long-term care trump justice for this disproportionately minority, female labor force. She joined the opinion of Stephen Breyer, who during oral testimony had worried whether “millions of people” could afford to keep their loved ones out of institutions if they had to abide by the wage-and-hour law. In foregrounding the concerns of consumers, Breyer obscured the realities of those who actually perform care work as employees of home health agencies. Typical of these women is seventy-three-year-old Jamaican immigrant Evelyn Coke, now infirm herself, who in twenty years of bathing, cleaning, and feeding her charges rarely received overtime for twelve- and sometimes twenty-four-hour shifts.

Long-standing assumptions have cast home care as outside the law. Consisting of activities necessary to sustain daily living, but not technically medical, with the worker substituting for an incapacitated or absent wife or mother, home care easily became confused with routine family maintenance, mother love, or wifely obligation—labors of love that we think exist beyond the marketplace. Even if work in the home was real work, common sense insists that you can’t enter a man’s castle to regulate what happens there. And since anyone can do this work, it must be unskilled and not worth much. Such notions rationalized low pay and irregular working hours.

Care might take place in the home, but government policies since the 1930s significantly shaped its contours. The New Deal created visiting housekeeping projects as work relief for unemployed domestics. Following the Second World War, both public welfare departments and private family agencies established homemaker services to maintain aged and disabled people in the community rather than in more expensive hospitals and nursing facilities. The private agencies depended on child welfare and public assistance monies—Old Age Assistance, Aid to Dependent Children, Aid to the Blind, and Aid to the Totally Disabled—to run their programs. The Older Americans Act promised new services, while Medicare and Medicaid promoted a particularly medicalized version of home care. By the 1960s, antipoverty ini...

Duggan | University of California Press Gardels