The intersection of rights in Harris v. Quinn

via CT News Junkie, which reports that “Republican lawmakers and advocates for disabled people called upon the state Tuesday to halt plans to collect union fees from home health care workers” following the U.S. Supreme Court ruling in Harris v. Quinn. In that decision, the SCOTUS “found that home health care workers in Illinois paid through Medicaid can not be forced to pay fees to the union representing them.”

One of the advocates mentioned above is Manchester resident Cathy Ludlum, who has spinal muscular atrophy and employs personal care assistants.  Ludlow and other opponents of Connecticut’s health-care workers’ union “called upon the state to stop plans to begin collecting union dues and what is called ‘agency fees’ from workers who chose not to join the union but have nonetheless been represented by it in collective bargaining negotiations. ‘Were this not to happen yesterday, union dues and agency fees would start coming out of my employees’ paychecks,’” said Ludlum. “’What we are asking for, to answer your question, is [the application of union fees] be rescinded immediately so that they don’t take that hit starting in two weeks.’”

Other aspects of Ludlum’s advocacy have much in common with other disability rights activists:  she has written for the disability rights blog Not Dead Yet and been a vocal opponent of efforts to pass a “right to die” law in the state of Connecticut.  In a 2010 article in the Hartford Courant, Ludlum told reporters that she believed “misconceptions about people with severe disabilities can lead medical workers to give them less aggressive lifesaving options. Doctors might think they would not want to live if they were in the patient’s condition and assume the patient feels the same, she said. Or medical workers might see a disability as a fatal condition, even if it is not.” These observations made her “wary of an effort in Connecticut to let terminally ill patients end their lives through medication prescribed by doctors. . . The concept — giving people in pain control over their dying processes — may sound sympathetic, Ludlum said. But she and other advocates fear the reality will be more complex, and could leave people who have severe disabilities vulnerable. They worry about the law being misapplied — for example, if a person with a disability asks for help dying but is not terminally ill — and about the ideas such a policy would foster about the worthiness of a life lived with diminished capacity.”

On a website for disabled persons looking to hire home care workers, Ludlum has said, “The whole world opened up for me when I started hiring personal care assistants. Without their commitment and support, I could not have an active and independent life.” For Ludlum, “it became especially important that I hire personal care assistants who were reliable, and who would enjoy being part of my life. People who thought of it simply as a “job” usually moved on after a year or two. But those who really understood the importance of what they were doing often stayed five years or more. Some even became lifelong friends.”

Ludlum’s story is linked to that of her personal care assistant, Debbie Barisano, who says:

“For twenty-five years I worked in a high paying job as a computer programmer, but I was not happy. The job was very stressful and I was sick a lot. I had volunteered for two organizations working with people with disabilities, and I wanted to find a job in that area where I would be happy going to work every day. I decided to enroll at Manchester (CT) Community College in the Disability Specialist Program. One day Cathy, a woman with a severe physical disability, came to my class and spoke about her life. She mentioned that she needed a personal care assistant. I was interested, but at the same time I was scared. I had never done anything like that. I waited a month before calling Cathy, but I found out the first night that there was no reason to be nervous. She explained everything and I fell in love with the job. I have worked for Cathy since 1999, and I have loved going into work every day. In my first two years, I had only had two sick days, and I stopped needing some medications since I became a personal care assistant. I have had to make some sacrifices in order to work full time as a personal care assistant. I moved into a smaller place in affordable housing, and I do not have extra spending money any more. I also do not have any health benefits. But I would not trade my new profession for the extra money.”

Unfortunately, not all workers are able to make these kinds of sacrifices.  Both Ludlum and Barisano have opposed efforts to unionize home health care workers.  In 2012, Ludlum was the lead plaintiff in a lawsuit filed by the Yankee Institute for Public Policy, a conservative think-tank that “advocates for free market, limited government public policy solutions in Connecticut.” The lawsuit contended that Ludlow was “eligible for state subsidies that pay for her care through a Medicaid waiver,” and thus “she is an independent employer. She has the right to enter contracts with people who take care of her, and to negotiate benefits like vacation time and workers compensation, without any interference from a union. Similarly, just because PCAs receive a state subsidy for taking care of our most vulnerable neighbors like Cathy does not make them state employees. They are independent contractors and SEIU does not have a right to siphon off union dues from their pay.”

In other words, the Yankee Institute lawsuit contended that laws that created ways for home health care workers to join in collective bargaining trampled on the rights of disabled persons and the “right to work.”

Barisano also spoke against these laws.  In her testimony, Barisano called attention to the “unique relationship” between a personal care assistant and a person with a disability, likening this relationship that of a “family.” Barisano argued that the union “forcing itself” between the personal care assistant and the person with a disability would “ruin this relationship.”

This is very similar to the argument in Harris v. Quinn, except in this case it was an actual family member taking care of a person with a disability.  The lead plaintiff in that case, Pam Harris, said one reason she went to battle with the Illinois chapter of SEIU is that “I don’t want anyone to get between me and caring for my son.”

To those of us who study women’s history, these stories are very familiar.  Historically, nursing and personal care was done by female family members within the home.  Even after the profession of nursing left the physical confines of the home, and nurses started to form unions, the expectation that nursing was a “noble” profession that required exceptional levels of dedication and self-sacrifice persisted.  At the same time, the notion that these jobs were “women’s work” that were merely extensions of women’s traditional domestic responsibilities meant that they were historically undervalued and underpaid.

Eileen Boris and Jennifer Klein observe in an article in the Nation that these problems were especially true of domestic jobs held by immigrant women and women of color. They contend that the Harris decision “colludes in their misidentification as “just moms” and mischaracterizes the origins of home care work as an alternative to welfare for unemployed black domestic workers and other poor women. With a newly invented category of “partial public employee,” Alito denies women working in the home the same rights as other employees, returning unionized personal attendants to the status of household workers still excluded from the National Labor Relations Act. ” In addition,  “by dismissing the decades-long struggle of African American and immigrant women for recognition as workers, Harris reduces a state regulated labor market to individualized acts of love and obligation, furthering the agenda of well-funded anti-union forces.”

Not all home health workers share Barisano’s vision of sacrifice: rather, they welcome the ‘intrusion” of the union because it improves their wages and working conditions. Terrell Williams, one of the home health care workers who organized to become part of Connecticut’s SEIU District 1199, told CT News Junkie that “’I see being part of a union as a privilege. Home care workers put a lot of work in to form this union so we can have a voice and the issues that are important to us are heard. We are on the work sites every day, not elected officials, and we have the right to decide what is best for us and the people we care for.’”

In his column for the SCOTUS blog, Samuel Bagenstos points out that many disability rights activists supported the rights of their personal care assistants to collectively bargain:

Illinois’s system, like the systems in others states that have adopted consumer direction, gave the state the power to set workforce-wide terms and conditions of employment (like wages and benefits), while reserving day-to-day supervision and the choice of personal assistant to the individual beneficiaries with disabilities themselves. By allowing personal assistants to select a union to collectively bargain with the state on those workforce-wide terms and conditions, Illinois gave those workers the tools to negotiate higher wages and more ample benefits.  And this, in turn, helped to stabilize a personal-assistant workforce that had been marked by high turnover.  That is why many organizations of people with disabilities in Illinois and other states with similar collective-bargaining regimes signed on to a brief I filed in Harris in support of those regimes.”

In short, union rights, women’s rights, and the rights of persons with disabilities are intertwined. The Harris decision is not only a problem for organized labor and the rights of working women, it also threatens the independence of persons with disabilities.  It’s too bad Cathy Ludlow can’t see that.


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