If you’re like me, you were probably following the Hobby Lobby V Birth Control Supreme Court case for the last year or more, so Monday’s ruling was highly anticipated. It was also nigh impossible to not witness countless arguments on the subject. While it was and is and will be an important case and needs to be grappled with still, there was another important case also ruled by the anti-union Justice Alito that set some pretty damning precedents against forward action. And while the Hobby Lobby case ruled against women’s reproductive rights and for corporate personhood, as SCOTUSblog’s Samuel Bagenstos notes, the Harris V Quinn case was a decision both against public sector unions and against people with disabilities – dividing to defeat. So that’s two anti-worker rulings, one anti-woman ruling and one ableist ruling in one day. What will this court do next session to top this?
At its heart, HVQ was a case brought in by the adamantly anti-union National Right to Work Legal Defense Foundation (NRTWLDF) to gut public unions in Illinois – and thus setting precedence wherever there are public unions – by making them Right-to-Work. In other words: Dues Optional; Union Dies. The good news is that SCOTUS didn’t give unions quite the blow NRTWLDF was looking for. But if you know Alito, you know he’d leave that door wide open for future cases brought by anti-union/pro-big business plaintiffs. SCOTUS is, be aware, slowly eroding the power and lifeblood of unions and specifically government employee ones. Think of how much Republicans hate SIEU and teachers unions and you get a taste of where the Supreme Court conservatives are heading. The death knell for how unions are run may be nigh.
Because this is the Supreme Court, though, the premise of these cases have to be on how they uplift or challenge the constitution. How Alito and NRTWLDF are framing unions as unconstitutional is through the Freedom of Speech protection. They present the argument as though those who don’t want to pay dues are having their speech denied. But, to turn this argument back on its head, those who do want and need representation are also having their speech gutted. Without proper collective bargaining, their will is not represented to their employers. Their right to have free speech is being denied.
Even those who seek to not pay dues benefit from representation, much the same way we all benefit from our taxes going towards firefighters and police even though we don’t always need them.
The specific unionized workers this affects, though, aren’t your typical governmental employees. They are paid through Medicaid and work in the homes and communities of people with disabilities. Alito and the majority rule of the Court used these in-home aides as a linchpin to make their case – as being outside the normal offices of how a typical government employee operates, therefore not under the same (though apparently temporary) protections. These in-home health care aides are basically employees of the people they provide for and not directly employees of the state (Illinois in this case), even though the state pays them. Yet, personal home health aides have scant workplace protections and abysmal pay. According to the Economic Policy Institute, in-home workers for the most part are not covered under the Occupational Safety and Health Act, the Civil Rights Act, the Americans with Disabilities Act, and similar workplace protections. Additionally, their pay tends to be abysmal, coming in over 25% lower than other workers with similar demographics (education, age, race/ethnicity, citizenship, gender, etc) even though the work they do is crucial (Table 4 ).
Though they would have to pay out of already-small checks for union dues, it’s clear that these same workers need union representation, and the state of Illinois (for all of our faults) understood that.
They also understood that unionizing workers who work at homes would be a much better step than sending the clients into centralized institutions. Since the passing of the ADA and particularly over the last twenty years, disability rights groups and government agencies have worked to make access for people with disabilities a priority. Previously, PWD were locked up and kept out of sight. Special education classes, as an example, were in a secluded section of the school building and students spent their entire days there, away from everybody else and not really getting the social and intellectual services they needed. Out of sight; out of mind.
With de-institutionalization, the trend is to allow those with disabilities to live, do their chores, go to their jobs, and be with their families in their homes and communities and on their terms as much as they possibly can on their own and with assistance when and where necessary.
When Alito argued against unionizing these attendants, the crux of the matter lied in how they are not working in a centralized institution. In other words, Alito was setting up what is good for people with disabilities – to have aides who can afford to pay the rent and allowed safety and anti-discriminatory protocols – against what is best for people with disabilities – to live independently as much as possible.
Illinois Governor Pat Quinn, named as the defendant in the case, released a statement after the verdict that said in part:
A high-quality workforce of long-term, in-home care workers gives our most vulnerable citizens the opportunity to live independently in their own homes, instead of forcing them into expensive, long-term care institutions. All people, no matter what their challenges are, deserve the opportunity to choose to live in the community.
Very, very soon, we’re going to have to figure how to serve both low wage workers and people with disabilities better. Because SCOTUS, the ultimate law interpreters, sure ain’t – as Harris V Quinn demonstrates yet again. And we somehow keep getting turned against each other.
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