Workers in industries and economies where there is disproportionate representation of Black workers due to structural racism and exclusion are explicitly denied basic labor protections. The law also permits exploitation of disabled people, people with criminal convictions and incarcerated workers.
Extend and expand labor protections to all workers, including agricultural, domestic, service, tipped, franchised, gig, informal and criminalized economies, disabled, migrant, pregnant, parenting, and LGBTQ workers, and workers with criminal convictions.
Extend and expand labor protections to all workers, including agricultural, domestic, service, tipped, franchised, gig, informal and criminalized economies, disabled, migrant, pregnant, parenting, and LGBTQ workers, and workers with criminal convictions.
Agricultural, domestic and tipped work – sectors historically and disproportionately made up of Black workers, including Black women and Black migrant workers – were deliberately excluded from federal labor protections such as the Fair Labor Standards Act. Additionally, agricultural workers have no access to agricultural subsidies, and Black farmers experience discrimination in access to capital and supports for sustainable farming. Meanwhile, domestic workers are disproportionately excluded from federal protections offered by the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII, which are not afforded to employees working for employers who employ fewer than 15 people. Black workers are also disproportionately employed in the low wage service economy: for instance, 28% of Black women are employed in the service economy, the sector with the lowest paid jobs and fewest benefits.
“Sheltered workshops” employing disabled workers are exempt from many labor protections and isolate disabled workers. Additionally, disabled people are twice as likely to live in poverty because poverty operates as a cause and consequence of disability. Despite the existence of legal instruments designed to protect against discrimination, Black disabled workers currently have an unemployment rate much higher than all major race and ethnicity groups.
Additionally, by 2030 50% of all workers will be contingent, freelance, or informal workers, many of whom are not covered by existing labor laws or health and safety protections. The “gig economy” has grown substantially over the past decade, bringing more workers into “on demand” positions such as Lyft/Uber drivers, Instacart shoppers, and freelance consultants. For many workers in informal sectors – street vending, hair braiding, trading sex, the drug trade – work is criminalized. Yet the formal economy relies on the informal economy, migrants without legal authorization to work in the United States, the care economy, and reproductive labor that particularly exploits Black women, disabled, trans and gender nonconforming people, and migrants.
People who have been convicted of a crime, including, but not limited to, incarcerated workers, are exempt from the federal Constitution’s prohibition against slavery and indentured servitude, as well as protections against discrimination and health and safety protections under federal, state and local labor laws. Additionally, according to the Council of State Governments (CSG) Justice Center’s National Inventory of the Collateral Consequences of Conviction, there are over 47,000 collateral consequences to criminal convictions imposed by state and federal law – including bars to permits and occupational licenses that formerly incarcerated people can not attain. Criminal background checks disproportionately impact Black workers who experience discriminatory targeting by law enforcement, and who struggle to survive in informal and often criminalized economies, leading to higher rates of criminal convictions among the Black population.
In many parts of the United States, there are no laws prohibiting discrimination against lesbian, gay, bisexual, trans and gender nonconforming workers. Where protections exist, they often apply only to public sector employers or employers of a certain size. While some states offer protections against discrimination based on sexual orientation, very few offer protections against discrimination based on gender identity or expression. Court decisions and religious exemptions are increasingly eroding what protections are available for queer and trans workers under federal employment law.
And in all parts of the U.S. employers are permitted – even required – to discriminate against workers based on immigration status, creating conditions rife for abuse of undocumented and migrant workers. Few labor protections exist for migrant workers without legal authorization to work in the U.S. and many guest workers or workers on employer-based visas.
Despite existing legal protections, pregnancy discrimination remains widespread: according to recent data, nearly 31,000 charges of pregnancy discrimination are filed annually with the U.S. Equal Employment Opportunity Commission (EEOC)
Even where formal protections exist, legal standards often offer no remedy for many forms discrimination and structural exclusion. For instance, discriminatory licensing practices in the legalized drug trade often preclude criminalized Black workers from benefiting from drug legalization. For example, there were 145 applicants for licenses to grow medical marijuana in Maryland, but despite a state law requiring racial diversity in licensing, none of the 15 firms selected to start growing marijuana were owned by Black workers.
High unemployment rates among Black workers, and particularly Black trans, queer, migrant, disabled, and youth workers, create conditions under which violations of workers’ rights are more likely, and undermine workers’ ability to enforce existing laws and to fight for expanded worker protections.
Additionally, the nature of formal economy itself is anti-Black: workplace customs and expectations are based on white-centered professional standards of dress, hairstyles, and speech, leading to systemic discrimination and exclusion of Black workers.
Millions of people have been profiled, harassed, violated and abused, arrested, incarcerated in jails, prisons, on probation or parole, or detained, deported, civilly committed, or placed in child welfare proceedings based on drug use, possession, and sales. The vast majority of cases involve small quantities of drugs for personal use or low-level drug sales. According to the Drug Policy Alliance, in 2012,
Black people made up 38.8% of people incarcerated in federal prisons for drug offenses (99.5% related to selling and distribution). As of 2011, Black youth were 44% more likely to be arrested for drug offenses than white youth, despite reporting equal rates of drug use. In 2014, Black people were over 3 times more likely to be arrested for selling and distributing drugs, despite growing evidence that white people sell drugs at a slightly higher rate.
Black LGBTQ people are also at higher risk of being ensnared in the drug war due to higher levels of poverty, higher rates of drug use stemming from family and community rejection, structural exclusion, denial of necessary health care, and disproportionately high rates of police contact. One study found that nearly 40% of -LGB+ people used criminalized substances in the past, compared to 17% of the public. Nearly 30% of transgender and gender-nonconforming respondents to the 2015 U.S. Transgender Survey also report past use of criminalized substances.
Structural exclusion from formal economies drives many Black queer, trans and gender-nonconforming people into criminalized economies. Twenty-eight percent (28%) of Black respondents to the 2015 U.S. Trans Survey participated in the underground economy for income at some point in their lives, including in sex work, drug sales, and other currently criminalized work, compared to 20% of all respondents. Fourteen percent (14%) had done so in the last year, compared to 9% of all respondents.
Additionally, barriers to health care for disabled, queer, and transgender people can lead to increased self-medication, which can be charged and prosecuted as a drug-related offense. For example, a quarter of respondents to the 2015 U.S. Transgender Survey reported being denied coverage for transition-related hormone replacement therapy (HRT), and 33% of respondents reported avoiding healthcare services that they needed due to fear of being discriminated against by providers. When prescription HRT is out of reach, some transgender people turn to non-prescribed “street” hormones, which can lead to criminalization for possession of “drug” paraphernalia or unauthorized use of prescription medication.
Beyond incarceration, the drug war has subjected millions of people to mandatory and non-consensual drug testing, treatment, and incarceration or involuntary commitment in medical or other treatment facilities, including mandated treatment based on “junk science.” Additionally, drug treatment centers are sites of emotional, economic, physical, sexual, and other forms of violence and abuse. Conversely, countless people have been denied evidence-based medical care, including medication based support for withdrawal. Use — or even suspicion of use — places Black pregnant people and parents at risk of losing child custody and parental rights, regardless of whether there is any danger or harm to their fetuses or families.
The “War on Drugs” has also contributed to creating dangerous conditions for people who use drugs, including violence in illicit drug markets, increased overdose risk, vulnerability to sexual, physical, and other forms of violence at the hands of law enforcement officers, and denial of necessary medical treatment to people in custody, resulting in death or severe pain and suffering.
As marijuana is increasingly being decriminalized across the country, Black people with drug-related criminal convictions are being excluded from legal markets, while they continue to suffer the devastating harms and collateral consequences resulting from prior convictions, including years spent incarcerated or under criminal punishment system control for actions that are now legal.
Since its inception at the turn of the 20th century, vice policing has involved profiling and targeting Black, Native, and Asian women, who are framed as inherently promiscuous and sexually available and deviant under different logics serving anti-Black racism, colonialism, and imperialism. Prostitution laws have consistently been used to surveil, police, and criminalize Black communities, homes, and businesses. They have particularly facilitated police and community violence – including sexual violence – against Black women, trans, gender nonconforming and disabled people. Criminalization of prostitution originated and continues to be used as a basis for exclusion and deportation from the U.S.
Criminalization of the sex trade particularly impacts working class, low- and no-income Black people, and members of Black communities structurally excluded from formal economies, including Black migrants and disabled, queer, and trans people. The vast majority of people who trade sex do so in order to meet basic needs for housing, food, education, medical care, childcare, and elder care.
For instance, a quarter of Black disabled people live below the poverty line, and are often structurally excluded from formal employment. As a result, they may participate in the sex trade because it offers flexibility and accommodations jobs in formal economies do not. It can also substitute or supplement for inadequate or denied disability benefits, and to cover exorbitant medical costs.
Black women, girls, trans, and gender nonconforming people continue to make up a disproportionate number of people targeted by enforcement of prostitution-related offenses:
More than one in five (21%) Black respondents to the 2015 U.S. Trans Survey participated in sex work for income, compared to 12% of all respondents. Transgender women represent more than one- half (60%) of Black respondents who have traded sex for money in their lifetimes. Non-binary people assigned female at birth (AFAB) (18%) and transgender men (16%) also account for a significant proportion of Black queer people who trade sex to survive. More than a quarter (27%) of respondents traded sex for money, food, a place to sleep, or other goods or services.
Trans people who had lost a job due to anti-trans discrimination were 3 times more likely to engage in sex work. Of those who interacted with the police while doing or thought to be doing sex work, 90% of Black trans respondents reported some form of police harassment abuse, or mistreatment including being verbally harassed, physically attacked, or sexually assaulted by police.
Instead of meeting the basic needs that drive people into the sex trades, criminalization of prostitution-related offenses drives people in the sex trades further into poverty, closing off access to housing, employment, health care, reproductive rights, family, and community. Vice and drug law enforcement cost the U.S. billions of dollars each year that could be used to meet the needs of targeted communities-— for medical care, including voluntary, quality, low-threshold and harm reduction-based drug treatment, mental health treatment, and parental and family support, for housing, living wage employment, and basic necessities.
Over half of voters in the U.S. support decriminalizing sex work.
The Movemnt for Black Lives calls for expanded, comprehensive and enforced protections for all Black workers, prohibiting discrimination on the basis of race, national origin, age, disability, gender, gender identity or expression, sexual orientation, marriage or civil partnership, pregnancy or parenthood, religion, faith or creed, industry, arrest or criminal conviction. Our goal is to remedy discrimination, indirect discrimination, harassment, and victimization acutely experienced by Black workers, eliminate exclusions of workers in industries and contexts where Black workers are disproportionately represented, and to expand protections for all workers beyond what is currently available under existing laws and structures. Viewing protections for Black workers through an intersectional lens ensures that the complex realities of all Black workers, in both formal and informal economies, are recognized and their safety is actualized. We demand:
