Proposal

Earlier I suggested two ways to address the problem of imbalanced caring: education and a Care Corps. Here is another proposal: regulate and recognize care - including material and emotional labor - as work from a legal point of view. Simply put, treat imbalanced care in marriage or long-term partnerships as work - and subject to worker protections such as minimum wage, overtime, sick leave, unjust termination, and health and safety regulations. Protections for paid care workers should extend to unpaid care workers.

Such protections could involve educational and public health interventions to protect against the effects of unreciprocated caring - just as workplace signs remind workers to wear safety equipment, so the state might warn against the risks of imbalanced emotional labor. These interventions might extend to promoting reciprocal, “safer,” caring. Moreover, legally recognizing unpaid care as work might encourage unpaid caregivers to claim reciprocation as their due, or even to unionize. Seeing care as work, legally and socially, might shift both men’s and women’s perceptions of desert - by thinking in terms of the caregiver’s right to breaks and other protections.

In principle, care work could even figure into a claim for compensation on relationship dissolution. On this model, when two competent adults enter a long-term relationship of imbalanced caregiving, including friendships, they would be treated as having agreed to certain legally binding terms (compare Chambers 2017, 157, 159, 189, 202). Presumably, in an ongoing relationship, parties would not appeal for enforcement of these terms, nor would it be practical to seek to enforce them on a day-to-day basis. But on dissolution, the caregiver could claim compensation for her work. A long-term contribution of caregiving could form a demonstrable basis for a claim to property and ongoing “severance” pay - and surely it is these long-term cases where the vulnerability is greatest.

This differs from other proposed legal rationales for spousal support such as compensation for contributions to a spouse’s career, rehabilitation, income security, and equal opportunity (Jeske 2018, 180-184; Okin 1989). The rationale is not forward-looking like rehabilitation or income security; it is backward-looking, at the work the spouse has done. The compensation rationale aims to compensate the party for the contribution she has made to her partner’s career and the opportunities she has forgone, but my proposed model directly recognizes that care is work, independent of contributions made to the spouse’s career or lost opportunities.

Of course, equal opportunity may be an adequate rationale for spousal support. Arguably, the effects of gender-structured marriage are so detrimental to women’s equal opportunity that a Rawlsian principle of fair equal opportunity requires structuring the institution of the family to protect women on divorce. Further, there are problems with treating compensation for care work as a matter of interpersonal justice. A first is evidentiary: particularly with emotional labor, proving imbalance will be difficult. A second problem is that care work is underpaid. Thus, when an unpaid caregiver divorces a highly paid husband, her claim would be less when treated as compensation for years of minimum-wage work than when treated as entitlement to a share of his earnings or continuation of her standard of living. This model would benefit the worse-off at the expense of the better-off: wives of higher earners would have lower claims, but wives of lower earners would have equivalent claims to theirs, based on their work, despite their husband’s lower earnings. A third problem is the “traditionalist” objection addressed earlier: a wife’s work might be considered “already paid” by earnings shared during the marriage. This applies only where the husband contributes financially and the wife does not - according to U.S. Bureau of Labor Statistics (2018) data, 19.5% of marriages in 2016 - but these would likely be cases of the greatest economic vulnerability. Although, if women’s work were properly valued - as caregiver, cleaner, nutritionist, and so on - the claim would be much higher (Waring 1999).

Finally, this support model only applies to women leaving relationships that have been formalized in some way, as through minimal marriage. In the current U.S. context, spousal support provides less protection to groups with lower marriage rates such as the economically worse-off and African Americans. In addition, members of worse-off groups are less likely to be able to pay spousal support. Furthermore, the exploitation of emotional labor and caring attitudes occurs outside the context of marriage and male-female relationships. Emotional labor is extracted from women in professional contexts in which they are not paid for it as well as in social settings. Hence a broader rethinking of who cares, what care entails, and what risks imbalanced caring has is best able to protect all women, and not just married or partnered women.

For all these reasons, treating unpaid care as entitled to payment - a mandatory minimum wage - has limited value in protecting women’s interests. It is infeasible, particularly outside formalized contexts (i.e., marriage). The more feasible and broadly protective aspect of the proposal is the symbolic recognition of care as work, and of caregivers as deserving worker protections such as sick days. In practice, this could be accomplished by a state-funded service providing registered caregivers with respite for a certain number of sick days each year. Even more feasible (because less costly) would be through educational and public health campaigns highlighting the labor and the risks of care. Even such limited implementation could be effective. Recognizing that emotional labor is work and that it can diminish one’s self-respect might affect women’s willingness to perform it without reciprocation. Seeing care as risky work deserving protections could help to alter the way men and women think about desert. Law has an expressive function; just as “minimal marriage” (my name for marriage-like legal supports for friends and small groups) is intended, in part, to queer expectations around love and sex, recognizing the work aspect of care may begin to queer social expectations surrounding care, of who gives it, who receives it, and what they deserve.

One objection to treating unpaid care as work is that people can choose to donate work, foregoing compensation and workers’ protections, and presumably that is what unpaid caregivers do. But it is not true that people can donate any kind of work or that they can work under any conditions they choose. Some work is highly regulated: namely, work with high risks to self or others. Unpaid volunteers in many fields must undergo rigorous screening and adhere to strict conditions. Labor law paternalistically prohibits or regulates employment that is risky to the employee. And in contract law, unpaid work leading to an employee’s impoverishment could be construed as unjust enrichment (Fineman 2004, 134). Moreover, it is well within the liberal paradigm to prohibit or regulate work that could be harmful to nonconsenting others. When the disempowerment of an unpaid caregiver affects her children through her poverty or their internalization of harmful gender roles, it becomes legitimate for the state to regulate such work.

This proposal may prompt two other practical concerns. First, on the Marxist account, workers working for wages outside the home are exploited within capitalism. Considering wives (or unpaid caregivers) as paid workers will not improve their position and in fact may make them worse-off. In U.S. law, wives have protections that paid workers do not. It is more difficult to “fire” wives; they have rights to compensation and a share of property (depending on state law) and access to the premises. But my assumption is that workers (including paid caregivers) should have fair worker protections; in an ideal liberal state these would be far greater than in current U.S. law.

Second, any proposal to treat exploited unpaid carers as paid care workers risks ignoring the serious challenges faced by paid care workers and may worsen their situation. The implications for paid caregivers are complex. For one thing, many paid caregivers are also unpaid caregivers, so measures to protect unpaid caregivers will apply to them. But there are class interests at stake. Unpaid caregivers who are also employers of less privileged paid caregivers have different class interests. As wives’ unpaid labor facilitates the exploitation of husband-workers, whose labor outside the home depends on receiving care within it, the labor of poor or migrant women facilitates exploitation of their female employers who work outside the home.4 Paid caregivers occupy the place that wives have in Marxist feminist critique, and working wives’ labor is exploited both as workers and as wives. Seeing unpaid caregiving as work could lead to solidarity between unpaid and paid caregivers. But it might also lead the privileged to feel threatened, if the rights of the less privileged are seen as coming at their expense (through higher taxes, for example).

This potential conflict points to the need for full worker protections for paid care workers. Paid caregivers have not received full legal protection as workers in U.S. law. Since the New Deal, and for reasons having to do with race and class, they have lacked the full protections against discrimination and retaliation, and minimum wage and overtime protections, that other workers have (Schoenbaum 2015; Brake 2018). The many migrant care workers working unofficially have no worker protections.

On the other hand, the dichotomy between care and work harms paid care workers because it causes their unique vulnerabilities as carers to go unrecognized. And if paid care work is less valued because it is seen as women’s work and as altruistic, then valuing unpaid care work more, and recognizing the burdens of emotional labor, stands to increase the perceived value of paid care work.

 
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