Criminalizing the Care Work Zone? The Gendered Dynamics of Using Legal and Administrative Strategies to Confront Workplace Violence

Introduction IN CANADA, CARE WORKERS IN NURSING HOMES AND GROUP HOMES EXPERIENCE RATES of nonfatal workplace violence second only to police officers and taxi drivers (Boyd, 1995). In the context of funding cutbacks and work redesign, there is little evidence that employers are making rising levels of workplace violence a priority. Finding few remedies in the workplace, interest has grown in those provided by external bodies such as criminal and administrative law, e.g., the right to refuse dangerous work (administrative), the duty to warn (civil), assault charges (criminal), and criminalizing employer neglect (criminal). Although these avenues for redress and prevention of workplace violence have potential, none of them seem to have much relevance for workers in this sector. This is largely because adversarial approaches such as the laying of charges against care recipients or employers fail to resonate with the ideology of caring that saturates the everyday life of this predominantly female workforce. For care workers, workplace violence is dealt with in ways that reflect neoliberal restructuring (1) of work and the welfare state, the gendered ideology of and the paternalism of certain parts of the care sector. Care work is a continuously and predominantly female job ghetto in which stereotypical female attributes such as compassion, patience, and conflict avoidance intermingle with new professional requirements for extensive documentation and accreditation, and non-professional tasks such as cooking, cleaning, and maintenance. As with other groups in the restructured public sector, funding cuts and the introduction of new forms of work organization often require care workers to work alone, with little or no back up, and inadequate training to deal with violent clients. Given the mandate to care, many workers are reluctant to break the silence surrounding client assault of workers, fearing negative impacts on vulnerable clients (Hesketh et al., 2003; Morrison, 1992) and retaliation and blame from management and co-workers (Duncan et al., 2001; Macdonald and Sirotech, 2001 ; Lanza and Carifio, 1991). Indeed, most care workers fail to report violent incidents to their employers (Macdonald and Sirotech, 2001; Mayhew, 2000), let alone initiate legal proceedings. In short, employers can depend on workers' capacity to translate an ethic of care and sense of vulnerability in the labor market into tolerance for unsafe working conditions, including violent assault, thus relieving the employer of responsibility to enact possibly costly changes in work organization and job design. This article argues that given the restructured gendered, caring, and paternalistic context in which violence occurs, legal and administrative remedies are unlikely to experience more than minor success in preventing workplace violence in the care work zone. This is consistent with the similarly uneven results of criminal remedies applied in the realm of wife and partner assault. Using literature and data drawn from a larger study of violence, stress, and workload in the social services, this article explores four major administrative and criminal law remedies: the right to refuse dangerous work (administrative), the duty to warn (civil), assault charges (criminal), and criminalizing employer neglect (criminal). It considers how these remedies might work within the specific, gendered context of care work, and with a workforce that is not well insulated from management retaliation or from their own concerns for their marginal and vulnerable clients. I first summarize the parameters of the original data on which this article is based. Next comes a brief overview of the impact of restructuring on the organization and conditions of care work, followed by an introduction to the characteristics of violence in care work sites, with particular attention to the gender dimension of that violence. The four remedies listed above are then described in relation to the broader context of caring work. …

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