Academic journal article Labor Law Journal

No Fault of Her Own: Redressing Family Responsibilities Discrimination in the State Unemployment Compensation Systems

Academic journal article Labor Law Journal

No Fault of Her Own: Redressing Family Responsibilities Discrimination in the State Unemployment Compensation Systems

Article excerpt

1. Introduction

A single mother loses her fast-food job and files for unemployment. When she is denied benefits and contests the denial in a hearing, the administrative law judge (ALJ) questions her about her availability for work. She explains that she has access to childcare through the Boys and Girls Club 10 hours a day, five days a week. The judge responds that many fast food jobs are outside of those hours. Only after she assures him that she would find additional care if she found work outside those hours does he find her eligible for benefits.

After unsuccessfully asking her employer for schedule adjustments to accommodate her need to care for her grandmother, a chiropractor quits her split-shift job. Although she actively seeks and eventually finds compatible work, the unemployment agency finds her unavailable for work and therefore ineligible for unemployment benefits.

State unemployment insurance (UI) systems were created to protect individual workers and the economy as a whole from involuntary unemployment. From the creation of UI to the present, women have received unemployment benefits at lower rates than men. In some states, men's rate of receipt of unemployment benefits is 20 percent higher than women's.1 There are a range of explanations for this, but the stories above, from Washington State, suggest one fundamental reason: UI places structural hurdles in the way of claimants with family care-giving responsibilities. Since women are disproportionately assigned the work of family care-giving in our society, the result is to disproportionately exclude women from unemployment benefits. The systems both set eligibility requirements that caregivers typically cannot meet and subject caregivers to higher scrutiny than other workers in assessing whether they meet the requirements.

The demographics of the labor market have changed dramatically since the creation of UI in the U.S. The percentage of women over the age of 16 in the labor force grew from 19 percent in 1900 to 60 percent in 2003.2 60 percent of mothers with children under six were in the paid labor market in 2000, up from 40 percent in 1975, and the percentage of mothers of children under 18 in the paid work force rose from 47 percent to 73 percent.3 Women now make up just under half the labor force.4

Yet UI has not changed to match this new reality. This may be one reason that the percentage of those out of work who received unemployment fell from 50 percent in 1980 to 33 percent in 1990.5 The decline in reach of unemployment benefits threatens UI's ability to fulfill its two goals of protecting individual workers and the economy as a whole. Reconfiguring the systems to allow those with family caregiving responsibilities to claim unemployment benefits would boost UI's reach and better enable it to serve these goals.

Recently, particularly as a result of incentives created by the Unemployment Insurance Modernization Act of 2009 (UIMA), a component of the American Reconstruction and Revitalization Act (ARRA), a.k.a. the stimulus law, states have revised their UI statutes to make it easier for women and low-income workers to receive benefits.6 Many states now grant benefits to workers who quit their jobs to follow a spouse or to escape domestic violence and to those who worked part-time. Many states have made the earnings and hours thresholds for qualifying for benefits more flexible. While it is too early to measure the effect of these changes on women's receipt of UI, they are likely increasing it. However, most states have not shifted the basic eligibility requirements that most affect caregivers: the definitions of availability for work and good cause for quitting a job. In fact, the trend is the reverse, toward defining availability and good cause more restrictively; in 1940 most states granted benefits to those who left or refused jobs for personal reasons, but by 2003 only 15 states left good cause unrestricted.7 By 2009, only 10 did. …

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