Some policies are overtly racist: redlining, “separate but equal” education. Others are race neutral on their face but have racially disparate impacts—sometimes by design. Examples include exclusions from the original Social Security Act of sectors that employed mostly Black workers, exclusion of U.S. citizen children from mixed-status immigrant families from the benefits of the Earned Income Tax Credit (a critical support for low-income families), and the exclusion of people with a criminal record from public housing. And other policies are also seeming racially neutral but allow for discriminatory implementation, for example, stricter implementation of welfare sanctions when clients are Black, or ineligibility of undocumented and recent legal immigrants for social programs. So what does it mean to identify and undo racist policy? And, how do we assess and ensure that our current policies actively promote racial equity?
For the past decade or more, we’ve been thinking about those questions in relation to family-supporting policies like the Family and Medical Leave Act (FMLA), Head Start, the Housing Choice Voucher program (Section 8), the Supplemental Nutrition Assistance Program (food stamps), Temporary Assistance to Needy Families and child care subsidies. These safety net policies are explicitly designed to support children and families in times of need, and all except FMLA are intended to serve low-income individuals and families. But although poverty rates in the U.S. are higher for Black (20.4%), Hispanic (20.3%) and Asian (13.9%) people than they are for White people (8.7%), these policies are at best not designed with the explicit goal of increasing equity and can be implemented to have racially disparate impacts.
An historic opportunity
We are in the midst of a long overdue public outcry over structural racism and a campaign to reallocate public resources away from law enforcement to policies that better support Black and Hispanic families. We must not squander this historic moment. We must ensure that new and existing policies are accessible, equitable and effective. Policies should work for everyone, and if they don’t, they are not equitable and need to be improved so that eligibility, quality and implementation do not exclude or hurt any group. But what does that mean in practice?
Policymakers lack information about which policies most effectively increase equity and what improvements would make them stronger. Our Policy Equity Analysis approach, which we pioneered in 2014, is a tool to help policymakers and researchers answer these questions. A Policy Equity Analysis begins with an understanding of the policy’s racial history, purpose, and explicit and implicit goals, and evidence of effectiveness for the population in need. Next, it asks explicit questions about the policy’s capacity to serve everyone who needs help and whether and how the program has adjusted to meet the needs of the changing demographics of the child population, and identifies pitfalls in the policy’s design or implementation that could be removed in order to increase equity and improve effectiveness.
As with many policies and programs that fall short of serving everyone in need, increasing funding is often a remedy, but the Policy Equity Analysis approach doesn’t stop with funding: it offers specific, actionable recommendations that address the policy’s goals, capacity and implementation challenges.
Take the Family and Medical Leave Act as an example
Need: Workers need temporary time away from work without fear of losing their jobs to care for a new baby, an adopted child or for their own or their close family member’s serious medical condition. The FMLA was designed to address this need.
Equity problem: Compared to White workers, Black and Hispanic workers have limited access to any family and medical leave through their employers. A few states (the number is growing) supplement the limited employer options with paid family and medical leave programs financed primarily by employee payroll taxes.
History: Federal labor law is rarely passed, but the FMLA is a historic labor law enacted in 1993 that guarantees job protection and unpaid leave for workers who meet strict eligibility criteria.
Differential access is a central driver of inequity: A Policy Equity Analysis reveals that although the FMLA is not racially discriminatory in its intent, the reality is that Hispanic workers have; lower access to family and medical leave because they disproportionately work for small businesses that do not meet eligibility criteria. Thus, when the FMLA works as it was designed to do, it protects Hispanic workers less than other workers. In addition, because FMLA leave is unpaid, it is less affordable for lower wage workers who are disproportionately Black and Hispanic.
FMLA’s effectiveness: The Policy Equity Analysis of the FMLA finds evidence that it is successful in achieving one stated objective of removing some barriers for working parents to take parental leave, although there is no data on the racial/ethnic distribution of workers who benefit. The analysis also finds that affordability constraints limit the effectiveness of the FMLA in ways that disproportionately impact Black and Hispanic workers. There is also some evidence that the FMLA is associated with improved birth outcomes, but only for college-educated and married mothers.
How could we build racial/ethnic equity into the FMLA?
Cover more workers. We estimate that 51% of the workforce (excluding the self-employed) are eligible for the FMLA. Our estimates show that if the small business criteria were removed, FMLA eligibility would increase markedly, particularly for Hispanic workers and immigrant workers.
Make leave paid. Paid family and medical leave increases utilization among Black and Hispanic working mothers. Paid leave is also known to improve mothers’ job retention and child health outcomes, though due to data constraints, we don’t know if these improvements hold true for all racial/ethnic groups. Our analysis finds that making unpaid leave paid would greatly benefit Black and Hispanic working families, who rely more on one earner’s wages and have less wealth to keep families afloat if there is a precipitous drop in wages. Paid leave helps prevent economic hardship for all working families, but a greater proportion of Black and Hispanic working families will be exposed to economic hardship if they need leave because their incomes are much closer to the poverty line compared to White working families. More equitable family and medical leave policies should target higher wage replacement to working families with less financial cushion.
Improve enforcement and outreach. The FMLA is a labor standard rather than a program and enforcement is overseen by the U.S. Department of Labor. Ensuring employers’ FMLA compliance can be hampered by employees’ limited knowledge of their rights or resources to bring a complaint, and a cumbersome process, which disproportionately burdens minority and low-income workers. Expanding strategic enforcement such as targeted investigations into employer practices in low-wage industries that disproportionately employ Black, Hispanic and immigrant workers, and increasing funding for monitoring staff, could potentially increase compliance and decrease employee burden.
FMLA is just one of dozens of programs and policies that are intended to support families and children but often create or deepen inequities because of seemingly neutral exclusions in their design or because they aren’t designed with an explicit focus on equity. Policymaking is complicated. It takes time, expertise and a willingness to think through the implications of how the policy might impact all groups. Making antiracist policy requires that new policies be crafted with an equity lens from the outset and that existing policies be reviewed for their exclusionary features and disparate impacts and reformed to increase equity. This is a pressing project for our time. Our Policy Equity Analysis can serve as a starting point.