When Caring is Work: Home, Health, and the Invisible Workforce

Abstract

This essay introduces the SUNY Buffalo Law School 2012 James McCormick Mitchell Lecture. The Lecture featured distinguished scholars Hendrik Hartog, Jennifer Klein, and Peggie R. Smith, who each contributed an essay to this volume. These three scholars give a richly detailed picture of home caretakers' struggles to gain visibility and support for their important work. Legal rulings and policy choices have made care workers distinctly vulnerable, treating care services as an expression of love rather than contract (as Hartog describes), or as social rehabilitation for marginal citizens rather than as skilled health care provision (as Klein explains), or as informal "companionship" exempt from labor standards (as Smith criticizes).

Our introduction draws on Martha A. Fineman’s theory of the vulnerable subject, which grounds law in the inevitable interdependency resulting from the embodied human condition. That vision centers justice on law’s responsiveness to the vulnerabilities of those bodies, so that intimate caretaking work is not seen as an exceptional or burdensome need of “special” populations. Instead, government support for caretaking is a beneficial and productive instance of law’s normal provision of collective protection essential to individual power and responsible citizenship. That perspective can help challenge the law’s treatment of caretaking work as naturally and necessarily requiring special personal sacrifice, subordination, and hardship on the part of intimate caretakers.

Keywords: vulnerability, inequality, health care, employment, labor, family law, caretaking, gender and the law, low-wage workers, law and society, legal history, elder law