More Than Money: The Costs of Caretaking for People with Disabilities

Jeannie Kim

Many states have instituted governmental programs that provide support for people with disabilities that also assist those who are low-income. One major federal provision that often intersects with these disability rights programs is the U.S. Housing Act of 1937. Section 8 of this piece of legislation includes the Housing Choice Voucher program, which helps low-income families obtain housing that they can afford. Families that qualify as low-income receive vouchers that they can use to subsidize their rent for eligible properties. The voucher subsidy amounts are calculated based on the property and the family’s income. Due to payments from state programs that offer support for disability caretaking, however, many people with disabilities and their families often struggle to receive adequate and fair subsidies. Although the entire nation has made significant progress in increasing disability rights and care, this is an ongoing journey to increase protection for those with disabilities. 

The case Reilly v Marin Housing Authority (2020) involves both the Section 8 Housing Choice Voucher program and California’s In-Home Supportive Services (IHSS) program. IHSS allows those with disabilities to stay in the safety of their homes instead of entering a care facility by paying for the caretaking services that the individual receives at home, such as protective supervision, personal care services, and more. In this case, Kerrie Reilly and her family were supported by Section 8 Housing Choice Vouchers for their rent, and Reilly was also paid by IHSS to take care of one of her daughters who had a serious developmental disability. However, Marin Housing Authority (MHA) included these IHSS payments in their calculation of Reilly’s income when determining the amount for her voucher subsidies, resulting in lower subsidies. Reilly’s request for her IHSS payments to be excluded from MHA’s calculations was denied. Ultimately, the California Supreme Court ruled that the MHA was violating Section 8 and that the IHSS payments should not be incorporated into the calculation of Reilly’s income. This case meaningfully expanded the rights of those with disabilities coming from low-income households, and its ruling should be applied to other related cases to expand disability rights. 

Most significantly, Reilly solidified the precedent of a more expansive interpretation of Section 8. IHSS’s payments are supposed to offset the costs that a family endures by taking care of the family member with a disability. During the case, MHA claimed that “cost” solely refers to money: it “does not encompass emotional costs Reilly bears in caring for her daughter, nor any lost opportunity costs when Reilly forgoes outside employment to be her daughter’s IHSS provider.” However, the California Supreme Court rejected this narrow view. The majority opinion declared that the term “cost” not only entails the monetary definition, but also “the expenditure of something, such as time or labor, necessary for the attainment of a goal,” which in this case is providing adequate care to Reilly’s daughter. This comprehensive understanding of “cost” has powerful implications for the future of those with disabilities: it is remarkably unrealistic to believe that caretakers only encounter strictly monetary obstacles. MHA’s perspective is, therefore, a superficial understanding of the time and effort required in caretaking for people with disabilities, and proceeding with their definition would result in countless instances of careless oversight by IHSS providers. By establishing a more holistic definition of the term “cost,” the California Supreme Court encouraged a more accurate governmental and legal understanding of caretaking and ensured that those with disabilities and their caretakers are legally protected. 

Other related cases, even those that take place in other states, should be reconsidered through the framework of this more expansive interpretation of “cost” in order to better protect the financial security and emotional wellbeing of those with disabilities. For instance, Anthony v. Poteet Housing Auth (2009), mentioned in the dissent for Reilly, saw plaintiff Brenda Anthony and her disabled son living together in low-rent housing calculated based on income. Anthony’s son required attentive care and qualified for personal-assistant services through an organization called MED TEAM. Anthony started working at MED TEAM as a personal-care attendant; her main client was her son, but she also had other patients. Anthony’s salary from MED TEAM was included in calculations of her income for her rent, and Anthony argued that it should be excluded. The United States Court of Appeals for the Fifth Circuit ruled that Anthony did not qualify for wage exemptions because she never “[incurred] any costs.” The majority opinion in Reilly also argues that Anthony does not apply at all because it is impossible to distinguish between Anthony’s MED TEAM wages for her son and for her other clients. This is a misguided evaluation: applying the broader definition of “cost” from Reilly, regardless of the fact that Anthony also received payment for other clients, Anthony was still incurring costs specifically because of her services for her son. It is important to consider the opportunity cost of this situation: if, for example, Anthony did not have to provide services for her son, then she could have worked with more patients and increased her wages. To determine that the lack of clarity among Anthony’s various sources of income is more important than the costs she endured disregards the root issue: Anthony’s losses from taking care of her son. Therefore, Reilly should provide a new method of understanding this case by raising questions beyond the monetary element of Anthony’s relationship with MED TEAM. 

Another relevant case which merits the application of this more expansive perspective of “cost” is in the Matter of Cindi Ali (2020), an appeals case that came before the Minnesota Supreme Court. The case is similar in many ways to those previously discussed. Cindi Ali’s son has autism spectrum disorder and was eligible for protective services through Minnesota’s Developmental Disability Waiver program. Ali received monetary support from the Consumer Directed Community Support (CDCS) program, and she utilized part of this budget to pay herself as the main caretaker for her son. The amount of CDCS money that Ali allocated as her own wages was included in calculating her income for Section 8 housing. The court ruled that “cost” simply refers to monetary expenses, and since Ali incurred no monetary expenses for taking care of her son, her income was rightly calculated. Once again, this is a flawed conclusion—“cost” is a term that should be used to entail the “expenditure (as of effort or sacrifice) made to achieve an object,” as Ali argued. Just like Reilly, however, Ali should have received protection. While Minnesota’s programs and legislation for this issue differ slightly from California’s IHSS program, both programs entail offsetting costs in relation to Section 8. Other states like Minnesota should adopt California’s expansive view of this topic to increase legal protections for those with disabilities.

Revisiting and analyzing related cases according to the Reilly majority opinion illuminates previously neglected concerns regarding the challenges faced by those taking care of people with disabilities. Reilly’s definition of “cost” should be applied to other cases to better protect disability rights, and its interpretation of IHSS’s protections should also be adopted by similar programs in other states. This will have a transformative effect on creating a safer environment, society, and legal climate for those with disabilities. 

The Legality of Tattoo Discrimination in Employment

Leyuan Ma


In recent years, tattoos have become increasingly popular as a form of body art in the United States. According to a 2019 survey, 30% of Americans have at least one tattoo, an increase from 21% in 2012. However, even as tattoos are now recognized as part of mainstream culture, many people are still judgmental towards tattoos due to their negative connotations, associating them with risky behavior, criminality, or gangs. As a result, people with tattoos are often concerned that their body art will hinder their chances of employment. Though a recent study argues that in practice “tattoos are not significantly associated with employment or earnings discrimination,” other research has shown that body art can be a source of employment discrimination, and individuals have indeed been dismissed from their jobs because of their tattoos.

Current Legislation

Is it legal for employers to discriminate against prospective or actual employees with tattoos? Currently, Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin, but does not yet prohibit discrimination based on tattoos or other forms of body art. In addition, federal law allows employers to establish dress codes and grooming policies that require employees to cover up their tattoos in the workplace, as long as they are applied consistently and adhere to the Equal Employment Opportunity Commission’s  guidelines. For instance, employers can order all employees to cover up visible tattoos, but cannot apply such a rule only to males or people of a certain ethnicity.

On September 29th, 2022, New York City Councilman Shaun Abreu introduced a new bill that would amend New York’s administrative code and prohibit employment, housing, and public accommodations discrimination on the basis of having a tattoo. It would create an exception for employment and apprentice training programs in which covering a tattoo is a bona fide occupational qualification, a vocational qualification that is reasonably necessary to carrying out a particular job function in the normal operation of a business or apprentice training program, and where there exists no less discriminatory means of satisfying the qualification. The bill does allow for additional exceptions, but it does not specify what those might be in its current draft language. For instance, the bill may still permit employers to discriminate against employees and applicants with tattoos featuring hate speech. Currently, the bill has been referred by Council to the Committee on Civil and Human Rights. Though Abreu’s new bill is certainly a progressive step, unfortunately no existing legislation—federal, state, or municipal—prohibits the discrimination against people with tattoos in the workplace.

Does banning tattoos in the workplace violate the First Amendment?

The most powerful argument against tattoo discrimination is that it is a violation of Americans’ First Amendment rights. According to Councilman Abreu, “tattoos are a form of personal self-expression that, too often, incur bias and discrimination from employers, landlords and service providers.” Tattooing can be seen as artistic creation. Bearing a tattoo on one’s skin also makes a strong statement about one’s personality and identity, and thus can also be a form of personal expression. Therefore, tattoos could be considered  free speech protected under the First Amendment, and thus ordering employees to cover up their tattoos is an infringement of freedom of speech. However, it should be noted that the First Amendment does not apply to private employers. It states that “Congress shall make no law […] abridging the freedom of speech,” thus only regulating the government. In other words, even though tattoos constitute free speech, private employers would not be violating the First Amendment if they ban tattoos in the workplace.

The First Amendment argument has indeed been used against governmental restrictions on tattooing. In Yurkew v. Sinclair (D. Minn. 1980), commercial tattooist David Yurkew challenged the refusal of the Minnesota State Fair to rent space for commercial tattooing at the fair. Yurkew contended that tattooing is an art form and that the process of creating a tattoo is protected First Amendment activity. The defendants disputed this claim, arguing instead that protection of the health of fair patrons and consumers justifies the exclusion of tattooing from the fair. In the end, the court ruled against Yurkew and held that the “actual process of tattooing […] is not sufficiently communicative in nature as to rise to the plateau of important activity encompassed by [the] First Amendment.”

In more recent years, courts have gradually come to recognize tattooing as a form of free speech. The Yurkew v. Sinclair rationale was rejected in Buehrle v. City of Key West in 2015, when the United States Court of Appeals for the Eleventh Circuit determined that “the act of tattooing is artistic expression protected by the First Amendment, as tattooing is virtually indistinguishable from other protected forms of artistic expression; the principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.” In addition, in Anderson v. City of Hermosa Beach (2010), the United States Court of Appeals for the Ninth Circuit held that “in matter of first impression, [the] tattoo itself, [the] process of tattooing, and [the] business of tattooing are First Amendment protected forms of pure expression.” In Coleman v. City of Mesa (2012), the Supreme Court also ruled that a “tattoo itself is pure speech, and the process of tattooing is also expressive activity for First Amendment purposes.” In sum, according to the federal courts’ latest jurisprudents, tattoos and the act of tattooing are now forms of expression protected by the First Amendment.

So, a question arises: would federal employers be infringing on First Amendment rights if they ordered employees to cover up tattoos? Currently, many governmental jobs have restrictions on tattoos, though they vary in strictness; for example, the Connecticut State Police requires that no tattoo should be visible while on-duty in the summer uniform, while the New York State Police allows the exception of a single band tattoo on one finger, and both police departments prohibit offensive or extremist tattoos. What is the legal ground for such restrictions?

In Medici v. City of Chicago (2015), police officers alleged that the city’s policy requiring on-duty officers to cover their tattoos violated their First Amendment rights. The Court  recognized the officers’ tattoos as a form of personal expression, but held that a government employer can enact “certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” Moreover, the Court supported the Chicago Police Department’s (CPD) “interest in ensuring that professionalism and uniformity is maintained,” and granted that “due to a tattoo’s unique character,” allowing on-duty police officers to display their tattoos “would undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Thus, in the federal sector, employers are also allowed to ban tattoos in the workplace. 

Inherent Discrimination

Through a close analysis of regulations and legal cases, we see that it is in fact legal to discriminate against tattoos in the workplace, both in private and federal sectors. This is to say, under current legislation, employers are allowed to use tattoos as a basis to distinguish candidates, and can require employees to cover up tattoos while on the job.

In Yurkew v. Sinclair (1980), the State Fair refused to rent space to a tattoo artist because it saw tattooing as a dangerous procedure which could cause the “transmission of communicable disease such as hepatitis.” In the following decades, tattooing has been proved to be safe under sterilized conditions, and the public has become more accepting of tattoos. However, thirty-five years after Yurkew, in Medici v. City of Chicago, the Court still held that “an on-duty police officer’s public display of any tattoo imaginable may, among other things, cause members of the public to question whether allegiance to their welfare and safety is paramount.” This in truth reflects people’s inherent bias towards tattoos, still seeing them as negative reflections on one’s character, which is contrary to the reality at present: though tattoos might have once been symbols of gang affiliation or risky conduct, nowadays they are more a form of personal expression with a variety of meanings. 

Is forcing servers or police officers to cover their tattoos really necessary for them to fulfill their duties? Are all people with tattoos really more risk-taking or less trustworthy? As Abreu proposed in his new bill, employers should be required to justify their restrictions on tattoos, and prove that covering a tattoo is the least discriminatory way to fulfill necessary vocational qualifications. Though federal jobs might require employees to adhere to stricter rules, employers should nevertheless reconsider the requirements in a contemporary setting.