by Anil Lewis
From the Editor: Anil Lewis is the most visible member of our organization working with Congress to repeal Section 14(c) of the Fair Labor Standards Act, the section which allows the payment of less than the federal minimum wage to blind people and others with disabilities. In this article he addresses questions some have about the consequences of repealing this section, explores the faulty assumptions that argue for its preservation, and demonstrates his belief in the innate ability of the human spirit to overcome obstacles too many of us think insurmountable. As we consider his arguments, it is instructive to remember that Anil was initially diagnosed as a person with a developmental disability, and only through his mother’s perseverance and belief in him was he able to attend public school, graduate, and go on to earn a master’s degree in public administration. Here is what he says:
Members of the National Federation of the Blind believe that, given the proper training, support, and opportunity, people with disabilities can live the lives we want. Although some specialized public services may be required for our full participation, those provisions that exclude us from the same rights and protections as everyone else limit us to a lesser existence. Section 14(c) of the Fair Labor Standards Act (FLSA) is an unfair, immoral, discriminatory provision that allows entities to obtain a Special Wage Certificate from the US Department of Labor permitting them to pay workers with disabilities less than the federal minimum wage. These entities are almost always sheltered workshops, segregated workplaces that employ workers with various disabilities—including sensory, physical, and cognitive or developmental disabilities—at subminimum wages that are sometimes pennies per hour. This has been considered by some to be an essential tool for workers with disabilities. There are so many rationalizations touting the value and purpose of this provision. Some state that it is employment; others state that it is a training program; still others state that it is both training and employment. The last group states that it simply provides something for people with disabilities to do during the day. Regardless of which of these excuses is used to attempt to justify the existence of this provision, they all promote the misconception that people with disabilities are less capable and less productive than those without disabilities. The truth is that most, if not all, people with disabilities, when they receive specialized rehabilitation and training, can acquire a job skill that allows them to be competitive with nondisabled workers and to earn the federal minimum wage or higher. Most people are unaware of the rehabilitation and training strategies that make this possible and therefore believe that it is impossible. The fundamental question is whether we should, out of ignorance, support programs that believe the glass is half empty or whether we should, as an enlightened society, invest in programs that realize the glass is half full.
We must start with the facts. As a result of the antiquated Section 14(c) model, there are over four hundred thousand people with disabilities currently working for wages less than the federal minimum wage. Approximately two hundred thousand of these people are paid less than half of it, and approximately one hundred thousand are paid less than one dollar per hour. 33 percent of students with significant disabilities are being prepared for segregated subminimum-wage employment rather than competitive integrated work. The demonstrated outcome is that fewer than 5 percent of these people will transition into competitive integrated employment (work in a non-segregated environment at the federal minimum wage or higher). Therefore, 95 percent of these people will spend their entire working lives in a segregated subminimum-wage environment performing tedious, sometimes disgusting tasks promoted as work.
The segregated subminimum-wage employers peddle their programs as the solution, when they are really the problem. These employers reference the 70 percent unemployment rate of people with disabilities and assert that the existence of subminimum-wage payments is an essential tool to keep this statistic from getting worse. These “employers” have had over seventy years to use this “essential tool” to effect a positive change in the employment of people with disabilities and their strategy has failed miserably. It should be no surprise that a strategy founded on the belief that a person cannot be a productive employee results in nonproductive employees. The pseudo-work environments that pay individuals pennies per hour for performing mundane tasks are no better than the day habilitation environments they profess to replace. These shelters of low expectations rob individuals with disabilities of their real self-worth and the opportunity to achieve a better life. It is past time for us to invest our time and energy in the development of new models that result in more positive outcomes.
Under the Employment First paradigm, proven models exist that help people with significant disabilities acquire practical job skills and competitive integrated employment. These strategies have been proven successful for people who were previously trapped in segregated subminimum-wage work environments, where they were told every day by the so-called experts that this is the best they can achieve. Customized employment and supported employment strategies are being used to successfully transition people with significant disabilities into competitive integrated work environments after years of institutionalization. We should abandon the archaic segregated subminimum-wage model and embrace the proven Employment First model that recognizes the true value of workers with disabilities, costs less, and produces better outcomes.
We know that it can be done because, as a result of our advocacy, it is being done. Many organizations formerly using Special Wage Certificates have converted to a competitive integrated model in which every employee is paid at least the federal minimum wage. All but one of the National Industries for the Blind (NIB) affiliated agencies pay the federal minimum wage or higher to all of their workers with disabilities employed under the AbilityOne program, a special program created by the federal government and formerly known as the Committee for People Who are Blind or Severely Disabled. Already, 101 Goodwill affiliates operate successfully without paying subminimum wages. These affiliates work with similar populations of people with disabilities as the sixty-four Goodwill affiliates that assert that the Special Wage Certificate is an essential tool. When challenged with this fact, Goodwill representatives state that the difference between these two operational philosophies comes down to a local choice. The sixty-four subminimum-wage Goodwill affiliates are permitted to choose to use the Special Wage Certificate and Goodwill International refuses to adopt a policy that prohibits them from making this choice. Thankfully our advocacy efforts have driven Goodwill affiliates and other segregated subminimum-wage employers to begin to adopt similar non-discriminatory business models. We could just cling to the hope that once our efforts have resulted in an increased number of Goodwill affiliates making the successful transition to this proven business model, Goodwill International would finally adopt a policy that prohibits the use of this immoral discriminatory provision, and all segregated subminimum-wage entities would transition to this proven business model. Unfortunately, as long as it is legal, entities will continue to choose to pay workers with disabilities less than the federal minimum wage—business will always cut labor costs when the economy or the law allow it. In order to effect real systemic change, this ineffective provision must be eliminated.
The Fair Wages for Workers with Disabilities Act of 2013, HR 831, will responsibly phase out and eventually repeal Section 14(c) of the Fair Labor Standards Act. As a result, people with the most significant disabilities will no longer be trapped in segregated subminimum-wage workshops. Entities will no longer be able to choose to employ workers with disabilities at subminimum wages. For-profit entities will have one year, public and governmental entities will have two years, and nonprofit entities will have three years to transition to a proven competitive integrated training and employment business model that helps people with significant disabilities to obtain real jobs at real wages.
We cannot guarantee that every individual currently employed at subminimum wages will be employed at the federal minimum wage or higher at the end of this three-year period. However, these people will be on a path toward competitive integrated employment, rather than being condemned to a lifetime of segregated subminimum-wage pseudo-work. The legislation does not require an employer currently paying an individual with a disability twenty-two cents per hour to immediately pay this individual $7.25 per hour. Therefore, it places no financial hardship on existing employers in the form of increased labor costs. The goal is not to subsidize wages; the goal is for workers with disabilities to acquire a job skill that will allow them to earn at least the federal minimum wage. If an entity is unable to provide proper training and support to assist an individual in obtaining competitive integrated employment, why should we continue to allow people with disabilities to suffer because of the inadequacy of the service provider? HR 831 eliminates the ability for an entity to be considered a successful employer by paying people subminimum wages rather than providing real work at real wages. As with any mainstream training or employment program, the entity must adopt a business model that provides quality training leading to the acquisition of a marketable job skill and competitive integrated employment for the majority of its students in order to continue to operate.
The largest obstacle to our achieving this necessary systemic change is the ignorance and prejudice that has stunted the progression toward equal status of minority groups in our society time and time again. As a society we believe that those who are different are inferior. We feel that if we were faced with blindness, deafness, cerebral palsy, or another physical or developmental disability, we would not be able to succeed. Society asks representatives of entities that profit from this misconception for their opinion and we are told that these environments are necessary. These entities allow us to observe people with disabilities who, having received poor training and minimal support, are unable to effectively perform tasks in pseudo-work environments, and our beliefs of incapacity are reinforced. As a society we do not question the quality of the training or the qualifications of the professionals. We do not attempt to understand whether the assigned job task meets the individual's unique skills, interests, and abilities. What job skill can you acquire sorting hangers all day? How competitive an employee can you become by screwing caps on pens for a living? Although we know this environment would not be appropriate for us, we, with no knowledge of appropriate strategies or interventions, acquiesce and agree that this is an appropriate and even essential environment for others.
How many of us would continue to send our children to schools that openly state that they cannot teach our children? How many of us would attend a vocational training program that would not teach us an employable skill? How many of us would choose to work at a job that pays less than the federal minimum wage? None of us, but it seems acceptable to have different answers to these questions when we are referring to people with disabilities. Even many of us with disabilities make this assumption about others with disabilities that we perceive to be more significant than our own. We simply assume that these “other people with disabilities” cannot learn a competitive job skill and that they should therefore be pleased to work at subminimum wages to get the so-called "tangible and intangible benefits of work."
Segregated subminimum-wage workshop representatives ask, “Would you pay a full wage to a person who only works at 30 percent of normal productivity?” This is the wrong question. We should ask why the workshop, with its purported expertise in the training and employment of people with disabilities, is only able to assist the individual to reach 30 percent productivity when other entities are assisting similar people to acquire competitive job skills. No one challenges the competence or qualifications of the entities that represent themselves as quality training and employment programs for people with disabilities. Despite the fact that there are countless examples of people faced with significant disabilities who are successfully working in a variety of jobs, society believes that these people have no potential for competitive integrated employment because the program directors tell us so. We continue to support these programs even though they do not teach self-confidence, self-worth, alternative techniques, or any skills that would empower people with disabilities to secure employment and leave the rolls of poverty and public assistance. In any other instance it would be pure foolishness to use public funds to pay for schools where students do not learn, to pay for vocational programs that do not teach a marketable skill, or to provide public support for jobs that pay less than the federal minimum wage.
Phasing out the use of segregated subminimum-wage training environments is supported by research, countless case studies, and cost benefit analysis. So why is it so difficult to gain support for the long overdue repeal of Section 14(c) of the FLSA as outlined in HR 831, the Fair Wages for Workers with Disabilities Act? The simple fact is that it is easier to place people with significant disabilities in segregated environments to keep them away from the rest of society. We even cloud this outrageous act of discrimination by masking it as a demonstration of compassion for those less fortunate by placing them in safe sheltered environments for their own protection. We yield to those who profit from their false assertions of incapacity rather than fight for the rights of those being exploited. It takes courage to confront discrimination. It takes time and energy to invest in strategies and programs that work. We can take the easy way out and prepare the next generation of workers with disabilities for the segregated subminimum-wage workshops, or we can phase out the use of Section 14(c) and invest in the true capacity of workers with disabilities.
The employment statistics for workers with disabilities are far from ideal, but this is not a reason to accept the glass-half-empty logic of allowing workers with disabilities to work in useless jobs that pay them less than the federal minimum wage. The glass is in fact half-full, because strategies exist that allow workers with disabilities to obtain competitive, integrated employment. As a society we must invest time and resources in expanding the use of these strategies. This approach will ultimately create a more positive future for all Americans with disabilities.