Updated: Aug 5, 2021
As a civil rights attorney, I hear complaints from workers about discrimination every day. As I have stated before, these complaints do not occur within a vacuum. We find throughout history the imprimatur of racism, sexism, and other forms of prejudice on the very laws that govern our day-to-day lived experiences of the workplace. But tracing the development and evolution of specific laws over the course of decades and even centuries is only one way to uncover the structural biases that govern our everyday work lives. Another is to look at the biases animating the macroeconomic policies behind those laws. Given this, it is with no small concern that I have watched the debate around President Biden’s Americans Job Plan unfold.
At this moment, there is much talk about the bipartisan infrastructure framework wending its way through the Senate. This framework, however, is narrowly focused on rehabilitating, modernizing, and building roads, tunnels, bridges, power grids, and transportation infrastructure, as well as on expanding broadband. The framework bill calls for $1 trillion worth of spending, including $550 billion in new, above base-line funding, much of it going to transportation infrastructure including $110 billion for building highways and fixing bridges, $39 billion for extending public transit, $66 billion for constructing passenger and freight rail, $17 billion for port construction, $77 billion for modernizing the nation’s electric grid, $55 billion for improving water infrastructure, and $65 billion for expanding broadband access. These are laudable infrastructural improvements to be sure, and I support them, but the framework proposes only a fraction of the spending originally proposed by President Biden, and more to the point, it wholly excludes new spending on industries that unquestionably make our economy compete on a global level but which employ far more diverse workforces.
The industries set to profit from the bipartisan framework are some of the least diverse demographically in the country. They are historically male-dominated industries, which are disproportionally populated by White employees. Male workers, for example, make up just over 53% of the workforce in the United States, but make up nearly 89% of jobs in the construction industry. Indeed, the imbalance in the ratio of male to female workers in construction is the most pronounced out of any major occupational group. Likewise, White workers make up almost 90% of construction jobs, with approximately 70% being White, non-Hispanic workers. At the same time, although Hispanic or Latino workers are slightly better represented, Black workers comprise over 12% of the national workforce, but make up only 6% of construction jobs, and Asian workers comprise barely 2% of the construction workforce.
President Biden’s Americans Job Plan originally envisioned six trillion dollars in infrastructure improvements, not only for “roads and bridges” but also for making preschool more widely available to working parents and improving low-wage caregiving jobs. Those industries are set to receive zero new funding under the imminent bipartisan framework. At the same time, these fields are far more demographically diverse, employing a majoritarian female workforce and far greater racially heterogenous labor pool, than the employees in the industries set to gain big under the current deal. Nationwide, the workforce in elementary and secondary schools is almost 76% female and, except for Asian workers, employs roughly the same proportion of racial minorities as the overall workforce participation of these groups. In healthcare, the numbers are even more pronounced. Home health aides are 87.5% female, nearly 29% Black, 5% Asian, and 19% Hispanic or Latino, with Black and Hispanic or Latino workers over-represented compared to their participation in the general workforce, and with Black workers significantly overrepresented by as much as two and a half times their general workforce participation rates. President Biden had originally proposed $400 billion to boost the home healthcare industry. That would be a much-needed influx of funding given that, despite its immense need and growth in America’s aging economy, turnover is notoriously high given its paltry pay and non-existent benefits. The median hourly wage of a home health care provider is just $13.00 an hour, or roughly $27,000 a year. Turnover in the industry is 64%.
American workers are not going to be nearly as economically productive and competitive if they must spend much of their time on unremunerated care work in the home. But somehow, despite this obvious fact, these industries that support paid work have been cut from the bipartisan framework because they somehow do not comprise “infrastructure” or “core infrastructure.” There is nothing, however, in the definition of “core” or “infrastructure” that requires such a narrow reading of the terms. Merriam-Webster, for example, defines “infrastructure” as:
1: the system of public works of a country, state, or region
also: the resources (such as personnel, buildings, or equipment) required for an activity
2: the underlying foundation or basic framework (as of a system or organization)
3: the permanent installations required for military purposes
It also defines “core” as:
1: a central and often foundational part usually distinct from the enveloping part by a difference in nature.
Global and national institutions, past national administrations included, routinely refer to spending on infrastructure beyond the brick-and-mortar type. For example, Investopedia says this about the types of infrastructure that exist:
These types of infrastructure make up institutions that help maintain the economy. These usually require human capital and help deliver certain services to the population. Examples include the healthcare system, financial institutions, governmental systems, law enforcement, and education systems.
These make up the physical systems that make it necessary to run a modern, industrialized nation. Examples include roads, highways, bridges, as well as the capital/assets needed to make them operational (transit buses, vehicles, oil rigs/refineries).
These are assets defined by a government as being essential to the functioning of a society and economy, such as facilities for shelter and heating, telecommunication, public health, agriculture, etc.
The World Bank claims that vast increases in spending on “social infrastructure” (i.e., “soft infrastructure”), specifically including in health and education, are needed to meet its 2030 Sustainable Development Goals. The Bureau of Economic and Business Affairs (part of the U.S. Department of State) under former President Trump encouraged American corporate participation abroad in state after state by promoting the notion of “social infrastructure.” In soliciting contracts bids in Uruguay, the administration said: “Parliament passed a public-private partnership (PPP) law …[that] allows various kinds of contracts that enable private sector companies to design, build, finance, operate and maintain certain infrastructures…With some exceptions (such as medical services in hospitals or educational services in schools), PPPs can also be applied to social infrastructure.” In another advertisement for bids, the administration touted India’s banks because “[t]he [Reserve Bank of India] requires commercial banks and foreign banks with more than 20 branches to allocate 40 percent of their loans to priority sectors which include agriculture, small and medium enterprises, export-oriented companies, and social infrastructure.” And the administration applauded Australia’s investments “towards the creation or development of higher education infrastructure, research infrastructure, vocational education and training infrastructure, and eligible education infrastructure.”All this is to say that the concept of important infrastructure including spending on education or healthcare is not particularly unknown to our elected officials.
I worry about the rhetorical maneuver of conflating infrastructure with construction projects, and not just because of semantics. Limiting the definition of infrastructure, whether intentionally or unconsciously, implicates the direct transfer of a vast amount of public wealth into the hands of a far narrower sliver of society, and furthermore, a sliver of society whose labor has been historically recognized as important precisely to facilitate the unequal distribution wealth and power along racial and gendered lines. It will not come as a surprise to readers of this blog that what our society traditionally conceptualized as compensable “work” has been influenced by everything from gender roles to the Civil War and emancipation. For instance, the Supreme Court in Frontiero v. Richardson discussed the impact of separate spheres ideology on laws that kept women’s caregiving labor in the domestic, “private” sphere both invisible and free in contrast to male labor which was paid and took place in the “public” sphere. That public sphere was then made off limits to women both because society deemed them incapable of performing such work, and at the same time, because society redefined the labor that takes place in the domestic sphere as merely a “benign destiny and mission,” – in other words, not work at all.
There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:
‘Man is, or should be, women's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .
‘. . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.’ 
Elsewhere on this blog I have explained how Black workers were systematically excluded from legal labor and employment protections. This was primarily accomplished through excluding industries disproportionally populated by newly emancipated slaves from coverage under laws regulating minimum wages, hours, and other benefits. Thus, during slavery, Black women raised food, watched children, cooked, and cleaned homes, amongst other labors, at no salary. After emancipation, they did so for barely much more. Gendered and racialized notions of work have intersected to create one of the most enduring populations of working poor in this country – those fulfilling society’s domestic and caregiving needs. By refusing to recognize social infrastructure as core to our society and economy, and as essential to the country’s current and future global competitiveness, the current rhetoric around infrastructure may only serve to further entrench and exacerbate racial and gendered inequalities in our economy at the macro level for decades if not longer to come.
 https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/24/fact-sheet-president-biden-announces-support-for-the-bipartisan-infrastructure-framework/  https://apnews.com/article/joe-biden-government-and-politics-business-c5e6ce9620ad98687cabb678121042a3; https://apnews.com/article/joe-biden-business-health-coronavirus-pandemic-098eb9f30c9e2f658fbe14b2477db644  https://www.bls.gov/cps/cpsaat18.htm  https://www.bls.gov/opub/reports/womens-earnings/2019/home.htm  https://www.bls.gov/cps/cpsaat18.htm; https://www.bls.gov/opub/reports/race-and-ethnicity/2019/home  https://www.bls.gov/cps/cpsaat18.htm  https://www.nytimes.com/2021/05/27/business/economy/biden-plan.html; https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/31/fact-sheet-the-american-jobs-plan/  https://www.nytimes.com/interactive/2021/07/28/upshot/infrastructure-breakdown.html  https://www.bls.gov/cps/cpsaat18.htm  https://www.bls.gov/cps/cpsaat18.htm  https://www.npr.org/sections/health-shots/2021/06/30/1010328071/with-workers-in-short-supply-seniors-often-wait-months-for-home-health-care  https://www.bls.gov/oes/current/oes311120.htm  https://www.hcaoa.org/newsletters/caregiver-turnover-rate-is-652-2021-home-care-benchmarking-study  https://www.npr.org/sections/health-shots/2021/06/30/1010328071/with-workers-in-short-supply-seniors-often-wait-months-for-home-health-care  https://www.merriam-webster.com/dictionary/infrastructure  https://www.merriam-webster.com/dictionary/core  https://www.investopedia.com/terms/i/infrastructure.asp  https://documents1.worldbank.org/curated/en/738131573041414269/pdf/Closing-the-SDG-Financing-Gap-Trends-and-Data.pdf  https://2017-2021.state.gov/report/custom/6a14b7f3b5/index.html  https://2017-2021.state.gov/report/custom/9c290f6d4e/index.html  https://2017-2021.state.gov/report/custom/6dc65f8d35/index.html  Frontiero v. Richardson, 411 U.S. 677, 684–85 (1973).
Iris Halpern is a partner and civil rights attorney at Rathod Mohamedbhai LLC. She specializes in employment discrimination and employee rights at work. Before joining the firm, Iris worked at the Equal Employment Opportunity Commission, ultimately serving as the Senior Trial Attorney and an Acting Supervisory Attorney in the agency’s Denver Field Office. From individuals to large class cases, Iris has helped hundreds of employees vindicate their rights, including pursuing class-based actions to enforce religious and disability accommodations, clamp down on age discrimination, and eradicate sexual, racial, ethnic, and homophobic discrimination and harassment in the workplace.