Health reform and women: the road ahead

Repeal. Replace. Repair.

Whatever shape the next iteration of policy change takes in health, it will affect every American.  Health is an everyday experience, and the trials of accessing health care services and the importance of health insurance coverage touches every American life.

Another reality of health care in America is that it is experienced differently by women and men.  Sex differences in health care utilization are well documented. These differences are driven by a range of factors that may also influence how health care policies applied broadly affect men and women differently.

It’s increasingly apparent that impending changes to health care policy are certain to occur in some form, specifically altering the financing and organization of health care delivery shaped by the Affordable Care Act (ACA), also known as Obamacare.  Media reports describe how Obamacare repeal may affect everyone.  Yet the form these policy changes take matters greatly – and differently – for women and men across the country, and also – of course – for children and families. Below I outline briefly how repealing and/or replacing the ACA may affect women, especially reproductive-age women, in ways that are distinct and relevant.

 

Repeal

Full repeal of the ACA would have an impact on health insurance coverage, access to preventive care, and access to essential health care services, including maternity care.

Insurance coverage

In 2012, my School of Public Health colleagues Jean Abraham, Beth Virnig and I published a study showing that 25% of all reproductive-age women were uninsured at some point in 2009, the year before the ACA was signed into law. Implementation of the ACA provided additional health insurance options for women at or below 400% of the federal poverty level, by offering expanded access to coverage through state Medicaid programs, health insurance exchanges, and federal subsidies for purchasing coverage.  These new coverage options would be eliminated with repeal.  Women of color would be disproportionately affected by the loss of coverage options.

ACA repeal would also undo regulations that require health plans to charge the same premiums to men and women (women were previously charged much higher prices for coverage than men), to offer coverage to individuals with pre-existing health conditions (which may include things like a prior cesarean delivery), and eliminates lifetime limits on coverage and annual amounts that plans spend. All of this could add up to more expenses for women, under ACA repeal.

 

Preventive services and essential health benefits

Among those who were already insured before Obamacare passed, the law changed how health insurance worked for reproductive-age women by expanding access to preventive care without cost sharing. Starting in August 2012, all health plans covered the following preventive services for women without cost sharing:  annual well-woman visits; screening for gestational diabetes; human papillomavirus testing; screening and counseling for sexually-transmitted infections including HIV; contraceptive methods; breastfeeding support, supplies and counseling; and screening and counseling for interpersonal and domestic violence. Repeal of Obamacare may mean a return to out-of-pocket costs for these services. Professor June Carbone’s recent post to the Gender Policy Report analyzes the implications of the such changes in coverage for American fertility, especially among poorer women and Latinas.

Obamacare also requires that qualified health plans include certain services (such as maternity care) as essential health benefits, and repeal would remove the requirement that plans include the following ten benefit categories: (1) ambulatory patient services; (2) emergency services; (3) hospitalization; (4) maternity and newborn care; (5) mental health and substance use disorder services including behavioral health treatment; (6) prescription drugs; (7) rehabilitative and habilitative services and devices; (8) laboratory services; (9) preventive and wellness services and chronic disease management; and (10) pediatric services, including oral and vision care. This may spur a return to the pre-Obamacare days, when only 12% of individual health plans included maternity care, and such plans were substantially more costly.

 

Replace

The form that an Obamacare replacement may take is yet unknown.  Much of the effects of a replacement plan would depend on changes to the elements of the ACA described above in the section on “repeal.”  Changes may be made to modify currently-existing benefits or to make large-scale changes.

Replacement plans may make tweaks to ACA provisions, or revamp major aspects of the healthcare delivery system. For example, the ACA includes a number of provisions with specifically address care related to pregnancy and childbirth. State Medicaid programs finance nearly half of all births in the U.S., and the ACA includes additions to Medicaid such as coverage for prenatal smoking cessation support and for childbirth in licensed, freestanding birth centers.  Some of these may be retained in a replacement plan, but the broader question around replacement of Obamacare is whether there may be fundamental changes to the Medicaid program, such as block grants.

There are some lesser-known aspects of the ACA that have profound effects on reproductive-age women.  Obamacare includes grants to states to support home-visiting programs for pregnant women and new mothers, and also to provide services to women who develop postpartum depression. The ACA also established new workplace protections for breastfeeding mothers, requiring employers with 50 or more employees to provide their workers with a private place to express breastmilk and ample break time to do so.  It is quite unclear whether such provisions would be revised, updated, or even remembered when a replacement plan is drafted.

Others have highlighted key aspects of potential replacement plans, based on Republican ideas and proposals, but most do not account for the particular aspects of the law that disproportionately or solely affect women.

 

Repair

While it is an unlikely strategy, from a political perspective, there is a possibility that full-scale repeal and replacement of the ACA may not occur. Indeed, some GOP leaders have alluded to the possibility of “repair” of the ACA, with a focus on some of the persistent challenges that health care policymakers (and American families) have faced, from decades past to the present, including high out-of-pocket costs, variable quality of care, and limited access to health insurance and to health care services.

Many factors are at play in determining the path ahead, but whether the fate of the ACA is repeal, replace, or repair, the next steps in federal health policy reform will likely have enormous consequences for women.

 

— Katy B. Kozhimannil, PhD, MPA; University of Minnesota School of Public Health

Photo by Texas Heart Institute




The Prison Rape Elimination Act and the Limits of Liberal Reform

In 1996, the suicide of a young Texas man named Rodney Hulin, Jr. in the wake of multiple sexual assaults partially spurred Congress to unanimously pass the 2003 Prison Rape Elimination Act (PREA). The purpose of the nation’s first federal civil law addressing sexual violence behind bars was to call for nationwide data collection on the problem of prisoner rape and federal grants to help states combat it within prisons, jails, police lockups, youth facilities, immigration detention facilities, and community corrections.

While PREA was developed with good intentions by the National Prison Rape Elimination Commission (NPREC) in concert with prisoner rights’ advocates from across the country, and has been lauded by the American Civil Liberties Union and Just Detention International, it falls far short of what is needed to protect all prisoners, especially women, people of color, transgender individuals, and disabled people.

The new presidential administration and Congress would do well to consider the benefits and shortcomings of PREA, and may have the impetus to do so with Jeff Sessions, an original co-sponsor of the legislation, now in the position of Attorney General. The pro-law enforcement “Blue Lives Matter” mandate under Sessions, however, is unlikely to include strengthening PREA’s enforcement provisions, investigating prison guards for rampant sexual violence against incarcerated people, or following through on progressive policing and prison reform.

Due to various Republican-led moves to delay and weaken PREA enforcement, it wasn’t until 2012 that the Department of Justice (DOJ) issued the final rule implementing the PREA standards that include protections for LGBT people, crisis services for survivors, and prisoner education on the right to be safe behind bars. Prisons are required to perform background checks on prospective staff, prevent juveniles from being housed with adult prisoners, provide external and anonymous channels for prisoners to report sexual abuse, and provide physical and mental health care to imprisoned survivors of sexual assault. PREA has caused a change in the way that prison rape is viewed by addressing not only forcible rape, but other forms of sexual abuse, whether perpetuated by prisoners or staff. Unfortunately, many of these standards (for example, standards that restrict cross-gender pat-down searches of female prisoners) will only be in full effect in 2017—a full 14 years after PREA was signed into law. In the meantime, rape continues unabated inside our nation’s correctional facilities.

The failure to implement PREA in ways that are consistent with NPREC’s initial recommendations has led to damaging results for Black and multiracial people [1], women of color [2], LGBTQ people, and disabled people who are more likely to be targeted for prison rape than white heterosexual men, nondisabled people, and cisgender people.

First, PREA’s enforcement provisions are virtually non-existent since compliance by corrections agencies is voluntary. The primary means by which PREA attempts to ensure compliance by the states is through a financial incentive. A state is at-risk of losing 5% of federal grant funding “for prison purposes” if it fails to certify that it is in full compliance with PREA. Additionally, as noted by the PREA Resource Center, there is no oversight with respect to a governor’s certification that their state is in compliance with PREA. Recent investigative reporting suggests that New Jersey’s prisons have a pervasive sexual abuse problem—and that officials look the other way when incarcerated people complain about it and that the state intentionally underreports its prevalence. Even factoring in sexual abuse charges filed against five corrections officers at the state’s only women’s prison last year and the more recent investigation into a correctional officer who was never charged for sexually abusing sixteen women for years, the department maintains its rate is low—well below the average of 4 percent of state and federal prisoners nationally. Meanwhile, the annual audit performed in compliance with PREA found the New Jersey corrections department met federal standards. New Jersey is not alone.

Second, the courts have allowed PREA to “become both sword and shield in the hands of detention officials” according to Professor of Law, Gabriel Arkles [3]. Since Congress never created a private right and remedy in a way that courts would recognize under Supreme Court precedent, many courts refuse to consider that PREA may be relevant to claims of incarcerated survivors of sexual abuse. This means that survivors can’t bring a lawsuit against individual correction officials or agencies that fail to comply with PREA standards. While courts disregard any favorable implications of PREA for survivors, “courts do entertain arguments from defendants who seek to use PREA to justify infringements on prisoners’ constitutional rights” [3].

PREA has provided an excuse for correctional staff to force unwanted penetrative exams on prisoners and to place more prisoners in solitary confinement. Courts have allowed prison officials to use PREA against prisoners in ways inconsistent with its legislative intent.

Courts have also interpreted PREA to limit incarcerated people’s access to the courts by first requiring that they exhaust all steps of an institution’s internal grievance system. This requirement further exacerbates the already serious barriers faced by survivors who want to bring their claims to court [3]. Incarcerated survivors of sexual assault often experience relentless intimidation, either by staff or other prisoners, and are often not believed because of their criminal histories. According to a 2012 DOJ report on sexual victimization in prison, incarcerated people who follow appropriate grievance procedures to report staff sexual misconduct faced staff retaliation and were punished 46.3 percent of the time.

Effectively turning the mandate of PREA on its head and shielding the perpetrators of state sanctioned sexual violence isn’t just limited to the courts. Transgender and gender non-conforming prisoners, in particular, have experienced unanticipated negative impacts from PREA, including being punished through new policies purportedly created to comply with PREA that punish consensual sex and forbid gender non-conforming behavior. PREA standards permit facilities to treat consensual sex as equivalent to sexual abuse and to prohibit sex of any kind between incarcerated people. PREA has given correctional authorities a potent weapon to selectively sanction incarcerated people for any sexual expression, including masturbation [5, 6]. This blanket prohibition against sex has resulted in discipline or criminal prosecution for prisoners who engage in consensual sex and has discouraged prisoners from reporting sexual violence. Transgender and gender non-conforming prisoners bear the brunt of these policies punishing gender and sexual expression [6].

In a recent Columbia Law School report, Chase Strangio, Staff Attorney with the ACLU, shares their experience representing trans and gender non-conforming prisoners: “In Idaho, for example, PREA has been used to restrict the gender expression of people in custody under the guise of ending sexual assault…I represented a transgender woman in a New York men’s prison who was disciplined after reporting a sexual assault perpetrated against her. The officials argued that her gender non-conformity was evidence that she had consented to the rape. Meanwhile, all corrections agencies continue to prohibit consensual sexual contact or touching of any kind.”

While PREA has effectively enforced penalties against prisoners for consensual sexual activity, there is no evidence that the new rules have reduced the gender-based and sexual violence against incarcerated people that is perpetuated most frequently by correctional staff. Yet, it is clear that the regulations have increased punishment of incarcerated people.

PREA has been a focal point of both mainstream feminist and trans politics. While passed with the aim of preventing sexual assault, according to Professor of Law Dean Spade, “abolitionist activists doing prisoner justice support work have pointed out that because some of the main tools the act uses are punishment tools, those tools have become just another part of the arsenal used by punishment systems to increase sentences, target prisoners of color and queer and trans prisoners, and expand imprisonment” [2]. Ultimately, individuals seeking to remedy prison conditions—whether policy-makers or advocates—should be aware of inadvertently strengthening the criminal punishment system. A case in point: prison reformers who have advocated for gender-responsive prisons and gender-specific rehabilitative programs for female-identified prisoners have unintentionally contributed to prison expansion.

The final rule issued by the Department of Justice to implement the PREA standards represents the start, not the end, of efforts to curb prison rape and sexual abuse.

Much more needs to be done to fully implement the standards and ensure meaningful and continual compliance monitoring. First, incarcerated people need legal rights to sue corrections agencies and officials, in particular, a private right of action, to enforce the PREA regulations [3]. Relatedly, reforms need to include repeal of the exhaustion requirement that, as mentioned above, limits incarcerated people’s access to the courts.

Second, the DOJ should amend and extend regulations and fight against efforts to weaken PREA compliance. Strong action will be needed to monitor compliance and impose penalties when needed.

Third, the DOJ should amend the PREA regulations to require prisons to eliminate bans on consensual sex among incarcerated people [4]. Relatedly, work needs to occur at all levels of government to implement all the policy recommendations forwarded in the A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV report.

If we take seriously the warning issued by prison abolitionists such as Dean Spade, liberal legal reforms need to be advanced while we continue to remember that prisons are not safe spaces for anyone.

— Lena Palacios,  Assistant Professor in the Department of Gender, Women & Sexuality Studies, University of Minnesota

— Photo by miss_millions

References:

  1. Buchanan, Kim Shayo. 2012. “Engendering Rape.” UCLA Law Review 59: 1630–1810.
  2. Buchanan, Kim Shayo. 2007. “Impunity: Sexual Abuse in Women’s Prisons.” Harvard Civil Rights-Civil Liberties Law Review 42: 45–557.
  3. Arkles, Gabriel. 2014. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.” New York University Journal of Legislation and Public Policy 17 (4): 801–834.
  4. Spade, Dean. 2015. Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law. Revised and expanded edition. Durham, N.C.: Duke University Press.
  5. Smith, Brenda. 2006. “Rethinking Prison Sex: Self-Expression and Safety.” Columbia Journal of Gender and the Law 15 (1): 185.
  6. Arkles, Gabriel. 2015. “Regulating Prison Sexual violence. (Prisoners’ Rights in the Modern Era).” Northeastern University Law Journal 7 (1): 69–123.



Food Stamp Work Requirements and the Implications of Devolution

On January 23, 2017, Wisconsin governor Scott Walker announced a new pilot program to require the state’s food stamp recipients who have children to work 80 hours per month for those benefits.  The change would require approval from the Trump Administration, since federal policy currently prohibits states from imposing additional requirements on food stamp recipients.  Unlike the Obama administration, which utilized those policies to protect and expand access to this and other programs, President Trump has signaled his intention to weaken those guidelines or eliminate them completely.

Walker’s proposal, therefore, provides important insight into the likely implications of that approach for poor workers and their families.

Officially known as the Supplemental Nutrition Assistance Program, or SNAP, food stamps were created by the War on Poverty in 1964 to ease the long-term effects of poverty on children and to invest in their health and well-being. The program reaches millions of poor children and families and has been remarkably successful in reducing severe hunger in the U.S.  After Unemployment Insurance, SNAP is the most responsive federal program providing assistance during economic downturns.  The use of SNAP benefits tracks the poverty rate quite closely.  During the most recent recession, demand for food stamps and spending on them rose sharply but, as unemployment eased, both fell (and continue to fall) across the country.  The Center on Budget and Policy Priorities reports that SNAP kept over 15 million people out of poverty and deep poverty in 2012.  Part of the program’s success is due to its consistent national design structure that targets those in greatest need, implements safeguards that insure extremely low rates of error and fraud, and responds quickly to changes in the economy.

Walker’s proposal is premised on the widespread public misconception that most food stamp recipients are avoiding work.

In fact, 64% of SNAP recipients are children, elderly, or disabled people who are typically not expected to be working.  Another 15% are already required to work because they are able-bodied adults without dependents.  The Wisconsin Governor’s changes would target the 21% of participants who are caring for children and thus, under current policies, exempted from the work requirement.  Even within this group, however, 62% of SNAP households with children have at least one member working and, in 87% of those households, a family member has been employed at some point during the year.  Many of these family members work at extremely low wage jobs where their annual earnings leave them at or below 130% of the federal poverty line (the income eligibility requirement).

To date, the Walker administration has provided few details about how the new rules will work.  Policymakers and legislators have raised many questions.  For example, if a SNAP participant does not find work, will the state provide a job, or will that family lose their benefits? Given that 66% of families receiving SNAP benefits in Wisconsin are single parent, primarily female-headed, households, how will child care be provided? Will single parents be required to take jobs that require long travel times or overnight shifts?  If families lose benefits, how will the state insure that it penalizes only the parent and not the child? If a mother cooks a meal with food purchased using food stamps, is she not allowed to eat it?

In addition to targeting female-headed households, these cuts will likely exacerbate Wisconsin’s already near-worst in the nation levels of racial inequality.

This is not, as is widely believed, because non-whites are particularly dependent upon government assistance.  In fact, food stamp usage closely tracks poverty rates among all racial groups. Yet, since African Americans are heavily concentrated in Milwaukee and other cities with high levels of unemployment, they are overrepresented in SNAP when compared to the population as a whole.  Indeed, this is further evidence of the effectiveness of the program in targeting labor-market inefficiencies.  It also indicates that restricting access will increase the stark inequalities in poverty levels between Milwaukee and the rest of Wisconsin.

Walker has stated that his plans are designed to “increase the supply of available workers” at a time when, he claims, “the state of Wisconsin has a worker shortage.” One way to increase labor force participation is to increase incentives to work by raising wages.  The Walker administration has decidedly rejected that path.  Since 2011, it has passed a series of bills that have deeply wounded the state’s labor unions and it has refused to consider raising the statewide minimum wage.  Taking food stamps from families with children represents a punitive alternative, one that compromises the health of those families in the present and may damage the long-term health and development (and labor market prospects) of their children.

Walker calls these changes “a giant step forward” and likens them to the welfare reform policies that were implemented by former Wisconsin governor Tommy Thompson and became a model for the national changes implemented by President Bill Clinton in the 1990s.  Last fall, a federal district court halted a Wisconsin law passed in 2015 that required drug testing of SNAP beneficiaries.  Rather than appeal the decision, Walker sent a letter to then President-elect Trump asking for a waiver.  He has expressed confidence that the new work requirements will be approved and also proposed similar requirements for recipients of federal housing vouchers.

Given the Trump administration’s interest in devolving control to state governments, Walker’s proposals provide a vivid illustration of the actions states may take when given leeway to impose new restrictions and make new rules for federal programs.

Wisconsin is not the only state seeking to change the rules for federally administered safety net programs—in 2016, it was one of twelve states that signed a letter to the US Department of Agriculture requesting permission to drug test SNAP recipients. Recent Congressional proposals to transform Medicaid funding into block grants raise the specter of similar restrictions health care safety net protections from poor families.  The Walker administration has already signaled its intent to change Medicaid eligibility requirements, either through a new federal block grant program, or failing that, through requesting exemptions to federal Medicaid rules.

While in some policy domains state discretion may lead to innovation, we also know that the success of programs like Medicaid and SNAP historically has been linked to their nationally standardized, coherent and transparent best practices, uniformly administered and monitored across the states.

New proposals like this one, by imposing undue hardship on the most vulnerable of the poor, threaten to leave citizens of some US states unprotected from personal misfortune and economic downturn, unraveling our already strained national safety net.  The result is deepening inequality that is manifested not just as economic inequality, but also as gender and racial inequalities

 

— Jane Collins is Professor of Community & Environmental Sociology at the University of Wisconsin-Madison. She is author, most recently, with Victoria Mayer, of Both Hands Tied: Gender, Welfare Reform and the Race to the Bottom in the Low-Wage Labor Market (University of Chicago Press, 2010)

— Photo by Liz Y




US Women’s Cabinet Representation Falling through the “Concrete Floor”

US Women’s Cabinet Representation Falling through the Concrete Floor

Since 1993, every U.S. president, regardless of party, has included at least three women in his initial Cabinet. Clinton appointed four women in his second term (and five total across his presidency). Clinton’s successor, George W. Bush, had three female appointees in his first term and four in his second. Barack Obama appointed four women in his first term and, eventually, another four in his second term. According to political scientists Claire Annesley,  Karen Beckwith, and Susan Franceschet, the United States, for decades, has had a “concrete floor” of nominating at least three women to cabinet posts.

Annesley, Beckwith and Franceschet are completing a comparative study on patterns of women’s appointments to cabinet posts in seven advanced industrialized democracies. They find that each country has a “concrete floor” or a minimum number of women necessary for a cabinet to be perceived as legitimate. As they summarized in the Washington Post: “Concrete floors matter because regardless of which party wins office, a minimal threshold of female appointments is generally predictable, and because selectors generally adhere to the standard set by their predecessors.”

How has U.S. President Trump fared?  At this point, he has fallen through the “concrete floor” with just two women nominated and confirmed for his cabinet. This marks a stunning reversal to a decades long norm.

While different countries have different norms in cabinet selection – for example Canada’s cabinet must always contain a representative from each province whereas in the United States geographic representation is less important than at least some racial and ethnicity diversity –  Beckwith and her colleagues found that all the countries they have studied consider women’s representation in cabinets to be salient.  Yet, norms on the degree of gender balance varies. In some countries, such as Germany and Spain, cabinets come close to being evenly balanced between men and women. In other countries, such as Britain, women tend to make up a substantial minority of cabinet positions.

In Evolving Norms and the Demand for Equal Female Inclusion in Governing Cabinets, Beckwith, Annesley and Franceschet discuss the most recent example: Trudeau’s cabinet, which was the first one with gender parity ever constructed by a North American government. They ask “How is this possible? How did Trudeau manage to find fifteen women to serve as ministers in his first government – enough women to staff the entirety of the smaller U.S. presidential cabinet – while during the same era in the United States, President Barack Obama only found four women out of 318 million people to nominate for his initial cabinet?” And now President Trump has not even met that standard.

When it comes to the more US-specific norm of cabinets having at least some racial and ethnic diversity,  Beckwith also points to divergence from the norm; President Trump has been heavily criticized for forming the first cabinet without a Latino in decades.

The Washington Post used photos of all white men in decision-making mode to convey “the glaringly obvious” lack of diversity in the Trump administration.  Among those photos is one that Rep. Carolyn B. Maloney (D-N.Y.) used on the House floor to questions this administrations’ representative legitimacy – the photo was of Vice President Pence and six male advisers in the Oval Office surrounding President Trump while he signed an order restricting federal funds for abortion-related activities in foreign countries.

These forms of push back demonstrate the “concrete floor” and consequences of ignoring it. According to Beckwith and colleagues “Wealthy democracies can no longer have men-only cabinets, or, as we have written elsewhere, a prime minister can no longer ‘over-select from just half the population’ in appointing a cabinet. Having women in the national cabinet has become crucial and conventional – even in the United States, where women have now served in every presidential cabinet since 1983, under Democratic and Republican presidents alike. Indeed, having just one token female in a cabinet is no longer enough.”

Of course representational criteria are not the only criteria the Trump administration has broken with precedence to ignore.  Experiential and affiliation are described in greater detail in our video clip and below.

Beckwith and her colleagues make the point that for cabinet appointments across the countries they studied neither supply nor process is an obstacle to achieving gender parity in cabinet posts. “Across all parties, wealthy democracies have large numbers of highly educated, politically elite women who could serve in cabinets as ministers or department secretaries… an incoming head of government can, if she or he wants to do so, quickly and effectively establish a gender parity cabinet with relatively little opposition.”  Present President and the U.S. included.




Baby UI Revisited: Paid Parental Leave under Trump

During the campaign, then candidate Trump advanced a proposal to provide six weeks of paid leave to new mothers through the Unemployment Insurance (UI) benefits program.  According to reports, the administration is now considering adding new fathers based on earlier criticism. In crafting this proposal, his advisors were likely looking back to a similar plan dubbed “Baby UI,” a US Department of Labor regulation advanced by the Clinton administration and later rescinded under the Bush administration.

“Baby UI” allowed (and encouraged) states to create parental leave programs that would allow both male and female workers to collect UI benefits while caring for a new baby.

Some UI experts have argued that individual states could advance such a program without federal approval, but the idea fell out of favor due to the stress placed on the UI programs by the recession and the chilling effect of Bush’s reversal of the Clinton plan.

What are the merits of a program delivered through Unemployment Insurance? While the idea holds promise for allowing the US to finally join the rest of the developed world in providing wage supports to parents after the birth or adoption of a baby, a deeper examination of the proposed policy parameters and funding mechanisms suggests that additional work is needed to craft a national program that accomplishes key policy goals and minimizes unintended consequences.

Let’s turn to the funding mechanism first.  The Trump campaign said it would pay for the estimated $2.5 billion a year cost by reducing fraud in the unemployment insurance system, which it estimated at $3.4 billion.  There are three concerns about this approach:  (1) reducing abuse, the extent of which is contested, is not cost neutral. It costs money to monitor and curb fraud, and deterrence efforts often do not deliver the expected revenues; (2) employers that currently provide leave benefits would likely drop coverage and require workers to use government benefits instead, which may inflate the expected costs to the state; and (3) the UI tax system is largely “experience rated,” meaning that the tax rate charged to employers depends on the utilization of benefits by their employees, which is meant to deter employers from excessive use of the program.

Leaving aside the questions about the extent of fraud (i.e., how much can be reduced and the cost of achieving such a reduction, which are debatable and well summarized in the New Yorker) and leakage from private offerings, in this post we examine the third point: employer incentives in the UI system.

The UI system contains ingrained incentives for employers based on how taxes are calculated that may have negative economic consequences for women.

The Unemployment Insurance system is currently funded through a complex payroll tax system that includes statutorily defined and interconnected federal and state components, totaling at least a combined 6% tax rate on an employer’s payroll for the first $7,000 of each worker’s wages.  However, all states have a significant amount of discretion and vary their portion of the tax based on how much a particular employer’s workers use the system.  Commonly referred to as “experience rating,” this means that an employer’s UI tax rate increases when more of their workers use the program. This system is in part designed to keep UI programs solvent but it also discourages employers from unnecessarily or capriciously laying workers off.

If used for a maternity leave program, however, that system would create additional disincentives for employers to provide paid leave to new mothers on their payroll or even hire pregnant women or those that are likely to become pregnant.

Such a tax penalty could result in an increase in the already relatively high levels of discrimination against pregnant workers, new mothers or women likely to become pregnant, since employing them may increase an employer’s UI tax rate and bill. Therefore, one unintended consequence of using the UI system to finance maternity leave is that it may reduce employer incentives to hire these workers in the first place, promote them or pay them fairly.

That leads to a second set of considerations related to unintended consequences.  Several scholars and advocates have already summarized the problems associated with singling out mothers for these benefits and the new administration seems to be listening and considering the addition of fathers.  Increasingly, millennial fathers are interested in playing equal roles in parenting.  Excluding fathers from the program would not only deny men that opportunity, but also provide economic reinforcement for the assumption that only women are responsible for infant care.  Workplace discrimination against pregnant workers and parents is technically illegal, but it remains common according to EEOC complaints  and research conducted by the Work Life Law Center.

Unless a separate funding mechanism is put in place, the Trump administration proposal would only make this problem worse by penalizing employers when their female workers (and also potentially their male workers, if they are added) use the program.

It is also not clear how eligibility for the program would be determined.  If current criteria are used, which are determined at and vary by state, the Institute for Women’s Policy Research (IWPR) has found that UI eligibility criteria often leave lower-income women out.  IWPR finds that “the criteria were designed to benefit full-time workers with incomes large enough to support a family, which means that low-income and part-time workers are typically ineligible. Women are frequently disenfranchised by state eligibility criteria that fail to consider the social and economic issues that affect women’s employment patterns and their earnings.”  Benefit levels also vary dramatically from state to state, generally providing only around 50% of lost wages when caps, wage credits and other criteria are combined.   At 50% wage replacement, many workers would be unable to make use of the program.

In addition, the Trump proposal does not address the right of a worker to take a parental leave without losing their job or suffering other negative employment consequences such as demotion.

Such a right would be even more critical if the program increases the economic penalty for employers when female workers take leave.  The federal Family and Medical Leave Act (FMLA) currently gives workers the right to take 12 weeks of unpaid leave to care for a new child, but it only applies to around 60% of workers in the U.S.  A patchwork of state level unpaid leave laws provides some additional workers the right to take parental leave, but for the most part these laws (which pre-date the federal FMLA) cover a similar set of workers.  Only four states (Minnesota, Maine, Oregon, and Vermont) provide a leave entitlement to additional, but not all, workers.  Unfortunately, without additional protections the workers that are most economically vulnerable are the same workers that could get fired for taking a maternity leave under the Trump proposal (low-wage, younger, workers of color).

All of these issues do not necessarily diminish the potential benefits of taking advantage of the significant UI infrastructure for delivering wage replacement during parental leaves.

In fact, the three states that currently provide wage replacement to new parents (California, New Jersey, and Rhode Island) depend in varying degrees on this infrastructure, but do so while also addressing some of the unintended consequences highlighted here.  Other states, like Minnesota, have looked in detail at how a state could make use of the UI program structure of revenue collection and benefit disbursement to deliver a program efficiently and are considering adoption of a similar approach.  Congressional proposals, such as The FAMILY Act being reintroduced by Senator Gillibrand, would provide uniform benefits through a payroll tax and benefits system administered by the Social Security Administration.  If the Trump administration proceeds down an alternative UI-based path, the research findings presented here would assist them in building upon and learning from the effective approaches already implemented in three states and planned in others.

— Debra Fitzpatrick, Co-director, Center on Women. Gender and Public policy, Humphrey School of Public Affairs

— Colleen Manchester, Associate Professor, Department of Work and Organizations, Carlson School of Management

Photo by Mark Panado




Title IX and Campus Sexual Assault under Trump

Two important Trump education picks have either refused to endorse or openly criticized Title IX, the landmark 1972 federal law that prohibits discrimination on the basis of sex in any federally funded program. Betsy DeVos, Trump’s nominee for Education Secretary, refused to answer whether she would enforce the law during her confirmation hearing, while Jerry Falwell Jr., Trump’s pick to lead a federal task force on higher education, has stated he would like to curb the rules that require colleges to investigate campus sexual assault under Title IX. What might a rollback of Title IX under the Trump administration imply for the incidence of campus sexual assault and campus climates? The challenges and opportunities to fight sexual assault on campus are better understood when we consider 1) legislation in place concerning campus sexual assault, and 2) the role of formal and informal institutions in the enforcement of these laws.  Specifically, enforcement of existing formal rules has helped to create campus climates in which it is clear that sexual violence is not tolerated, and in which victims are encouraged to come forward and report crimes because they can expect a quick, protective response. A change in federal policy will bring about a corresponding and equally important change in informal institutions, sending a chill over campuses that have only recently begun to work in earnest against campus sexual assaults.

Existing Legislation

Title IX is one of three major pieces of legislation concerning sexual violence on campus. This legislation requires campuses to report and investigate cases of sexual violence and requires that campus authorities trained on issues of domestic violence, sexual assault, and internal institutional hearing processes carry out the investigations.

Title IX is well-known for requiring women’s sports to be funded equitably. As part of the law’s protection against discrimination resulting from acts of violence against women, Title IX also calls for regulating campus reactions to sexual assault. Since violence against women has a chilling effect on women’s participation in academics and other activities on campus, violence systematically keeps women from accessing education.  (It should be noted that not all sexual assault is heteronormative, but the vast majority appears to be, which provides us with a starting point for policy.) Title IX measures are clarified and enforced by the Department of Education, frequently in the form of Dear Colleague Letters (DCLs). DCLs are a quick way for the administration to convey clarification or modification of existing law. DCLs are elements of sexual assault prevention or enforcement easily modified within an administration or with an incoming different administration.

The most recent DCL germane to sexual assault and Title IX was issued in 2011, to clarify that in cases of alleged sexual assault, schools are to follow the ‘preponderance of the evidence’ standard in order to determine the accused’s responsibility. In other words, the accused will be considered responsible for sexual assault if evidence indicates that it is more likely than not that the accusations are true.

While the ‘beyond a reasonable doubt’ burden of proof is better known, that is the standard for determining guilt in criminal cases. The ‘preponderance of the evidence’ burden of proof is the standard for enforcing civil rights legislation as well as for issuing civil protective orders. Current Title IX regulations thus allow college campuses to proceed quickly to hearings that protect students in cases of sexual assault.  Further, the 2011 DCL specifies that, “If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.”

The second key piece of legislation is the Clery Act of 1992.  Clery calls for colleges to compile yearly public reports of crimes on campus (not just sexual violence), and to issue timely reports to the campus community when there is a continued threat to public safety. The Clery reporting process is mandated for all crimes reported to “Campus Security Authorities” or local police, and the campus adjudication, which may follow, takes place separately from any criminal proceedings.

Congress has revised the Clery Act various times, most recently in the 2013 re-authorization of the Violence Against Women Act (VAWA, first passed in 1994): the third key policy regulating campus responses to sexual assault. The 2013 re-authorized VAWA includes a specific section on college campuses called the Campus SaVE Act (Campus Sexual Violence Elimination Act), which, among other things, adds stalking to the list of Clery-reportable crimes.   Public policy has thus been carefully crafted to facilitate formal institutional reporting processes, and to make crime information public and accessible.

 

Formal and Informal Institutions

There are both formal and informal mechanisms at work in institutional responses to sexual assault on US college campuses. As economist Douglass North has defined them, formal institutions are “rules that human beings devise” (North 1990, 4). In this case, they are comprised of the government legislation and regulations regarding sexual assault on campus based on the legislation described above. On the other hand, informal institutions are “conventions and codes of behavior” (North 1990, 4). With regard to campus rape, informal institutions are those social norms and attitudes that impact key factors in campus responses: the victim’s decision to report or not report; the typically gendered perspectives on victims and perpetrators (specifically, campus officials’ reactions to reports and how these are colored by perceptions of who rapists (in most cases, men) and victims (in most cases, women) are; and the rape myths that are part of rape culture prevalent society-wide. Changes in culturally derived informal institutions will typically lag behind changes in formal institutions, creating an inefficient tension between the two (North 1990, 54).

Such tensions are evident between the formal institutions facilitating reporting of sexual assault, and the informal institutional practice of under-reporting these crimes. Under-reporting of rapes and sexual assaults ranges from 95% on college campuses to 65% nation-wide. Yet, under-reporting does not get as much popular attention as false reports do. Indeed, there is much hand-wringing over the phenomenon of false accusation, even though it is really quite rare.  Studies on false reporting of rape indicate rates ranging from 2% to 13.7%, with a couple of outliers at 41% and 45%. False accusations (where specific perpetrators are named) are especially harmful of course, and these are a small subset of false reports. Despite the infrequency of false reports and accusations, vivid accounts capture media attention. The Duke lacrosse case, for instance, is often referenced in discussions of campus sexual assault. Class differences, which often but do not always overlap with race differences, further complicate perceptions of perpetrators.

Because of enduring stereotypes of rapists as visibly disturbed strangers who leave obvious physical injuries on their victims, campus communities are often reluctant to view college students as assailants. Yet there are key commonalities between rapists who are incarcerated as a result of conviction, and rapists who are undetected by the criminal justice system and never brought to justice.

According to the ‘predator theory’ in psychology, each set of assailants tends to be repeat offenders. These aggressors usually brag about overpowering women, they typically assault acquaintances, and they often leave no clear physical injuries. Despite the actual similarities in criminal behavior between rapists who are caught and those who are not, general desires to avoid falsely accusing alleged assailants who do not conform to society’s image of how criminals look further complicates Title IX enforcement.

Also important for our consideration are systematic informal institutions of bias, typically gendered, against the accusers. Men are excused for sexual aggression because they are drunk, for instance, while women get less sympathy for an assault if they have been drinking. Instead, women are often assessed as being irresponsible for ‘allowing’ assault to take place.

Rape myths and gendered biases are part of the rape culture that surrounds us. Rape culture presents violence as sexy, and sex as violent, thus providing a permissive social context for sexual violence.  Indeed, sexual violence is a reflection of the intersection of gender inequity and violence in society. Much of this violence is heteronormative and disproportionately victimizes women, although the sexism inherent in sexual assault is connected to other forms of oppression including homo- and trans-phobia.

In the end, both formal and informal institutions need to be utilized in the fight against sexual violence on campus.

While I have focused on the challenges presented by informal institutions that educational leadership will have to take into account, each of these challenges has its corresponding opportunity: informal institutions, like culture itself, are ultimately malleable. If the incoming administration shifts the focus to the rights of the accused, by limiting the response of campus sexual assault to the criminal justice system as suggested, this also limits on-campus victim protection options. All of this is likely to bring on a corresponding shift in cultural norms where victims are even less likely to report incidents of sexual assault, and campus communities are even less likely to take sexual assault seriously.

– Anne Marie Choup, Associate Professor of Political Science, University of Alabama in Huntsville

Photo by Wolfram Burner