Workers' comp's bias against women

The failed effort to pass AB 305 is bringing to light the gender discrimination in workers’ comp decisions suffered by women and transgender people who experience job-related injuries and illnesses. Activists and lawmakers who supported the bill have pointed to sexist practices throughout the medical evaluation process that reduce benefits by treating pregnancy, menopause, and osteoporosis as contributing causes of injury or illness, even when there is no evidence to do so.

AB 305 aimed to combat gendered assessments in the workers’ comp system and would have required state-appointed doctors to rate breast cancer, which overwhelmingly affects women, the same way they rate prostate cancer, which affects men. Although it was vetoed in October by California Governor Jerry Brown under pressure from employers and insurance lobbies, the bill’s supporters have catalyzed an important conversation about gender inequities in comp systems.
In industries where workers are exposed to toxic chemicals, women face additional risks to reproductive health. Birth defects, miscarriages, and breast cancer have been widely documented in women working with certain chemicals, including nail salon workers and farm workers. While proving work-relatedness in virtually all occupational illness cases is already notoriously hard, the barriers facing female workers are raised even higher and the claims women receive are reduced because of workers’ comp’s discriminatory treatment of gender-specific conditions like pregnancy and menopause as pre-existing conditions.

Other widespread gender disparities also leave women more vulnerable in the workers’ comp system. Because women tend to take on the bulk of child-rearing and domestic tasks, they are more likely to take part-time, temporary, and contract jobs, which often leave workers unprotected by workers’ comp and with less access to other benefits such as health insurance and paid sick leave. Meanwhile, discrimination and gender-based violence in the workplace lead to greater rates of stress-related and psychological illnesses in women. Moreover, because women are paid less than men in the workforce and workers’ comp systems base income payments on workers’ former salaries, the wage gap translates to lower benefits for women.

For many women, these issues are compounded by race and immigration status. Domestic workers, who are largely women of color, are entirely excluded by law from the workers’ comp systems in many states.  Meanwhile, female immigrant workers are concentrated in high-risk jobs such as manufacturing and nail salons, but few have the security to report injuries or file comp claims due to threats of deportation and inadequate access to information and legal support in their own language about their rights.

Women who work in the heavily female caretaking and hospitality sectors are at a particularly high risk of injuries. Workers in nursing, home health care, cleaning, child care and other industries face a high risk for back injuries and other strains due to heavy lifting and chronic use. And because these sectors pay relatively low wages and are largely staffed by women of color, poor and working class women and women of color are disproportionately affected by these denials. What’s more, much of the caretaking work done by women happens outside the bounds of formal employment, leaving women with no workers’ comp or other employment-related benefits and protections whatsoever.

Despite the many challenges facing women who are injured on the job, workers have won important victories this year to help secure greater protections for women in high-risk industries. The Massachusetts Domestic Worker Coalition celebrated an important victory in July as their state become the fourth in the nation to pass a Domestic Workers’ Bill of Rights, which includes the right to collect workers’ compensation for employees who work over 16 hours a week. And in New York, organizers won protections for nail salon workers in a law passed this summer, which aims to prevent misclassification and increase workers’ access to information about toxic exposure.