In 1906, W.E.B. DuBois noted that social conditions, not genetics, impacted the health of Blacks, causing racial disparities in mortality rates. In 2010, the federal government formally recognized that social conditions, specifically the social determinants of health (SDOH), were responsible for racial health disparities.
Racial health disparities, estimated to cost the United States $175 billion in lost life years and $135 billion per year in excess health care costs and untapped productivity, persist because of the failure to address their root cause: structural racism.
Structural racism describes the way our systems are structured to produce racial inequalities between whites and racial and ethnic minorities in the SDOH, leading to racial health disparities.
For example, structural racism in education is illustrated by funding public schools through property taxes, which is tied to the historical practices of redlining and over-valuing white residential property and neighborhoods, and creates racial inequalities in education funding.
In employment, structural racism is illustrated by Jim Crow era (1875-1964) laws that expanded collective bargaining rights, either excluding or allowing unions to discriminate against racial and ethnic minorities, resulting in racial inequalities in paid sick leave coverage.
Structural racism in health care is evidenced by access to health care based on ability to pay, rather than on patient needs, which harms racial and ethnic minorities, who are disproportionately poor and lack access to health insurance.
In the housing arena, an example of structural racism is when banks disproportionately steered Blacks and Hispanics into subprime loans when they qualified for conventional loans, leading to racial inequalities in foreclosures during the mortgage crisis.
Finally, structural racism in law enforcement is evidenced by policing in white neighborhoods to protect, while policing Black and Brown communities to dominate, leading to racial inequalities in police brutality.
Law is one of the tools used to create these inequalities, by structuring systems in a racially discriminatory way. As Professor Alan David Freeman notes, “law serves largely to legitimize the existing social structure and especially class relationships within that structure.”
Furthermore, as Black feminist and feminist theorists have noted, the law often reinforces discrimination, protecting those with power and leaving those without power susceptible to mistreatment, especially women of color. The employment system is illustrative of this point.
The Fair Labor Standards Act of 1938 (FLSA) limited the work week to 40 hours and established federal minimum wage and overtime requirements, yet exempted from coverage were domestic, agricultural, and service occupations, which were predominately filled by racial and ethnic minorities. Most of these workers continue to be exempted from the FLSA because they are classified as independent contractors, and the FLSA does not apply to independent contractors.
For instance, home health care workers are often classified as independent contractors and receive wages so low that 20% of home care workers — one in five — are living below the federal poverty line, compared to 7% of all U.S. workers, and more than 50% rely on some form of public assistance, including food stamps and Medicaid. These workers also are not covered under the worker health and safety laws, and most state worker compensation statutes, because they are independent contractors.
The failure to provide home health care workers with higher wages, health insurance, and workplace protections is due to structural racism. The initial failure to cover these workers under the FLSA benefited white workers by boosting their wages, while limiting the wages of racial and ethnic minorities, particularly women of color.
Seventy-seven years later, when most home health care workers were finally covered by the FLSA, their employers began classifying them as independent contractors. This benefits the companies, by lowering employment costs, while harming workers who are left with low pay and without overtime pay, worker safety protections, or workers’ compensation coverage for workplace injuries.
Due to low wages and lack of paid sick leave, home health care workers must continue to work with injuries and in close proximity to patients that are ill with infectious disease, which currently contributes to racial health disparities in COVID-19 infections and deaths.
Since the current SDOH framework fails to acknowledge that structural racism is the root cause of racial health disparities, it is inadequate as a means to achieve racial health equity. Thus, building on critical race theory, Black feminist theory, and feminist theory, I provide a revised SDOH framework to prime government and public health officials to understand the connection between structural discrimination, law, systems, and racial health disparities.
Revised Social Determinants of Health Framework
To achieve racial health equity, government and public health officials must aggressively work to end structural racism and revise laws that create racial inequalities. Only then can we truly begin to work towards improving the health and wellbeing of racial and ethnic minorities, so that we can achieve racial health equity.
Ruqaiijah Yearby, J.D., M.P.H. (https://www.slu.edu/law/faculty/ruqaiijah-yearby.php) is Co-Founder and Executive Director, Institute for Healing Justice and Equity, Saint Louis University and Professor of Law and Member of the Center for Health Law Studies, Saint Louis University, School of Law.
More discussion about the revised framework can be found in Yearby’s forthcoming article, Structural Racism and Health Disparities: Reconfiguring the Social Determinants of Health Framework to Include the Root Cause, 48 J. of L. Med. & Ethics 518-526 (September 2020).