The Legacies of Slavery and Jim Crow Live on With Exclusion of Home Health Care Workers from Fair Labor Laws

This year, our nation came close to ending a shameful, nearly century-long chapter in history that carried on the legacies of slavery and Jim Crow for domestic workers in the U.S. But on the cusp of finally bringing justice to a neglected class of workers, a federal judge put the brakes on the long-awaited solution.

Since the New Deal era, our labor laws, including those guaranteeing minimum wages and hours, deliberately excluded home health care workers who care for elderly individuals and people with disabilities in their homes. These workers – 90 percent of whom are women and most of whom are women of color – perform strenuous labor for long hours, helping those who need assistance with everything from dressing to meal preparation to eating to going to the bathroom to getting around. Yet until now – and to this very day – these workers are denied the basic protections of minimum wages and overtime pay. They are among the poorest workers in our country, barely getting by on low wages, with 23 percent living below the poverty line.

The exclusion of most domestic workers from our labor laws was a deliberate wrong. It was a legacy of slavery, during which enslaved African-American women provided household care, and the Jim Crow era, when African-American women continued to provide domestic service to white families at poverty wages. The low value traditionally placed on domestic work was also rooted in gender stereotypes that viewed this work as something less than real work, deeming it unworthy of legal protections. When the 1938 Fair Labor Standards Act was passed, guaranteeing minimum wages and standardizing hours, it codified this history of bias, and it was interpreted to exclude domestic workers (as well as agricultural workers, many of whom were African-American and immigrant men, also a legacy of slavery) from its protections.

Congress amended the Fair Labor Standards Act in 1976 to bring domestic workers within its protections, but the law was still interpreted to exclude many long-term care workers. In the decades since then, the home health care industry has exploded into a multi-million-dollar sector. Part of this massive growth is due to the welcome fact that, unlike in decades past, many more people who need care are now living in their homes, rather than in institutions. In addition, the portion of the population that is 65 or older has burgeoned, from 8 percent in 1950 to nearly 13 percent by 2009. Yet the growing workforce providing care is still working under pre-1938 conditions, with no guarantee of minimum pay or overtime.

After years of advocacy, the Department of Labor issued rules in 2013 that would finally bring home health care workers into the economic mainstream and grant them the basic minimum wage protections that most workers take for granted. The rules required workers who are employed by third-party agencies to be paid minimum wages and overtime, and they also narrowed the definition of the casual babysitters and elder companions who would remain exempt from wage protections. The ACLU advocated for these rules and celebrated their announcement.

Early this year, however, a federal judge in the District of Columbia struck down the rules as being beyond the scope of the Labor Department's authority. The government has appealed, and last week the ACLU, along with the ACLU of the Nation's Capital and Legal Momentum, filed a friend-of-the-court brief, joined by many civil rights and women's rights organizations, urging the federal court of appeals to reverse the lower court's decisions and uphold the rules. We argued that the exemption of long-term care workers from the labor laws was wrong, a product of racial biases and gender stereotypes that Congress intended to get rid of and that the department's rules appropriately eliminated.

It was never right to deny predominantly African-American and immigrant women workers fair wages for the work they do providing care at home. It is certainly not right today. Congress and now the federal government have acted to put this shameful legal exemption where it belongs: in the dustbin of history. Now it's time for the courts to do the same.

Learn more about workers' rights and other civil liberty issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (2)
Read the Terms of Use


"It was never right to deny predominantly African-American and immigrant women workers fair wages for the work they do providing care at home. "

Depends on what you mean by immigrant. If they are illegal immigrants, the laws of interest or those which forbid them to be in the country and to take our jobs. Nothing should be done to encourage illegal immigration nor the intentional violation of our labor laws by illegal immigrants.

It's not right to talk about injustices perpetrated against US citizens in the same breath as trying to encourage illegal immigration and the violation of US labor laws by illegal immigrants. It's also off-topic. As illegal immigrants should specifically NOT be in the country, and also NOT be taking our jobs, AT ALL, no *civil liberties* are being denied, with respect to this article's focus.


Is the ACLU using codewords when it throws out the phrase "immigrant women"? Is 'immigrant' being used as a sly codeword for 'illegal immigrant'? Is the ACLU trying to project an encoded message to the pro-illegal-immigration camp?

Does the ACLU see the abject irony in this? The article is about the struggle for US labor rights.

1.) Illegal immigrants are one of the very forces which are constantly working AGAINST US labor laws! They erode US labor laws and erode respect for them by the entire country. Illegal immigrants are and always have been BAD for US labor and US labor laws.

2.) There is a long history in the United States of codewords being used to persecute and disempower both a.) African Americans and b.) various socialist movements.

Codewords are typically a sign of weakness and they are historically a sign of evil. When something cannot stand on its own, people start using codewords. When something cannot be proclaimed in the light of day, people start using codewords.


Cesar Chavez's own words:

"For so many years we have been involved in agricultural strikes; organizing almost 30 years as a worker, as an organizer, and as president of the union--and for all these almost 30 years it is apparent that when the farm workers strike and their strike is successful, the employers go to Mexico and have unlimited, unrestricted use of illegal alien strikebreakers to break the strike. And, for over 30 years, the Immigration and Naturalization Service has looked the other way and assisted in the strikebreaking.
I do not remember one single instance in 30 years where the Immigration service has removed strikebreakers.... The employers use professional smugglers to recruit and transport human contraband across the Mexican border for the specific act of strikebreaking....
We have observed all these years the Immigration Service has a policy as it has been related to us, that they will not take sides in any agricultural labor dispute.... They have not taken sides means permitting the growers to have unrestricted use of illegal aliens as strikebreakers, and if that isn't taking sides, I don't know what taking sides means."

Barack Obama own words from Dreams from My Father:

“[T]here’s no denying that many blacks share the same anxieties as many whites about the wave of illegal immigration flooding our Southern border—a sense that what’s happening now is fundamentally different from what has gone on before. Not all these fears are irrational. The number of immigrants added to the labor force every year is of a magnitude not seen in this country for over a century. If this huge influx of mostly low-skill workers provides some benefits to the economy as a whole—especially by keeping our workforce young, in contrast to an increasingly geriatric Europe and Japan—it also threatens to depress further the wages of blue-collar Americans and put strains on an already overburdened safety net.”

Stay Informed