Why I abhor the passage of Section 511 of the Vocational Rehabilitation Act

Blog Date: 
Thursday, August 29, 2013
Open Letter to the Disability Community
 
From: Marc Maurer– parent with a disability, advocate, and president of the National Federation of the Blind 
 
Recognizing that healthy debate is the foundation of the development of good, sound policy, and democracy as well, I offer the following in response to a recent post by Michael Bailey, board chairperson and president of the National Disability Rights Network (NDRN).  We in the National Federation of the Blind sincerely hope that the members of the U.S. Senate are afforded the time to review this informal debate, but more importantly that they review the language of proposed Section 511 for themselves so that they can make an informed decision on the merits, or lack thereof, of this legislation.
 
I am totally blind and I have been totally blind most of my life. I have the good fortune that I have never worked in a segregated workshop. However, many of my colleagues have. One of them, who currently has a law degree, was subjected to the demeaning treatment of segregated employment before he got his diploma. A second one, who studied computer programming, and worked in the industry for thirty years, was required to do piece work for pennies an hour before he got to college. These are people who escaped. Many of my other colleagues have not. Mr. Bailey says that the argument about Section 511 is very personal, and I agree entirely. I care about Section 511 because it is a threat to me, to people like me, and to those blind children who are approaching working age.
 
Members of the National Federation of the Blind, along with Mr. Bailey, also abhor segregated work, segregated employment, and subminimum wages. We agree that Section 14(c) of the Fair Labor Standards Act is the root of the problem and that it should be repealed. We agree that people with disabilities should not be tracked into subminimum wage, segregated, pseudo-work environments.  However, our advocacy against Section 14(c) of the FLSA did not begin with the NDRN’s publishing of its report “Segregated & Exploited.”  Our advocacy began with the founding of our organization in 1940.  As documented in the “Treatment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act,” we have primarily fought this fight alone.  As a result of our advocacy, more and more blind people have received opportunities to obtain competitive integrated employment; yet the unfair, discriminatory, and immoral provision of Section 14(c) of the FLSA continues to plague all people with disabilities today.  Because I want to eliminate these antiquated practices, I refuse to support the stunning step backwards represented by Section 511 of the Workforce Investment Act of 2013 as passed by the United States Senate Committee on Health, Education, Labor, and Pensions (HELP).
 
Why?
 
We in the National Federation of the Blind recognize that people have been told that the intent of the language in Section 511 is to reduce the number of youth being tracked into subminimum-wage work environments.  However, the explicit language of Section 511 authorizes, for the first time in the rehabilitation program, clients becoming fixtures in segregated employment as an acceptable outcome. Those who have stated their support of Section 511 are quick to champion its intentions as an incremental step forward.  However, they will not, and indeed cannot, demonstrate how the actual language accomplishes the intended goal.  To the contrary, both those who support and those who join us in opposing Section 511 make our case by demonstrating that the language does the opposite of what is intended.  The National Federation of the Blind opposes the incorporation of the discriminatory language of Section 14(c) into the Rehabilitation Act, and we are joined by over a dozen other cross-disability organizations in our effort to have it stricken from the WIA reauthorization.  We have provided our analysis of the language, and our interpretation is supported by Professor Samuel Bagenstos’s report Section 511 is Not a Step Forward.  The National Council on Disability (NCD), the entity charged with the responsibility of advising Congress on disability policy, “has reviewed the proposed addition of Section 511 to the Rehabilitation Act and finds it incompatible with our recommendations to Congress on the subject to date and we oppose its inclusion in the WIA reauthorization.”
 
Significantly, the segregated subminimum-wage workshop representatives who support Section 511 also agree with our analysis of the language, and recognize it for what it is: an expansion of Section 14(c) into the Rehabilitation Act that promotes segregated subminimum-wage work environments as an employment, training, and rehabilitation program.  
 
Even NDRN, whose executive director and board president both state in their letter to the HELP Committee that they support Section 511, says the following: “Currently, the added Section 511 requires that, in order to be placed in subminimum wage employment, an individual must first have been working toward an employment outcome for ‘a reasonable period of time without success.’ This standard is overly vague and will not ensure that a reasonable attempt is made to reach the employment goal with proper supports.”  
 
NDRN goes on to say: “We have, unfortunately, heard examples of counseling and file review currently being done by only a paper and pen checklist rather than an actual discussion with the person with a disability. Taking similar actions in counseling or determinations for services under this new provision will only keep people with disabilities employed in subminimum wage positions.”  Although NDRN makes recommendations that it feels will address these problems, Section 511 has not been, and is not likely to be, amended to reflect any of its recommendations.
 
It is also important to note that the majority, if not all, of the organizations of people with disabilities (as opposed to those organizations, like most of the segregated workshops, which are not governed by people with disabilities) believe that Section 14(c) of the FLSA should be repealed. Their support of the Workforce Investment Act reauthorization cannot be interpreted as support of Section 511. Removal of Section 511 from the WIA language would not cause any of these organizations to retract their support of WIA. In fact, more organizations would support the WIA reauthorization if Section 511 was removed from consideration. 
 
Mr. Bailey states that: “For the first time since the subminimum wage option has been law we have the opportunity to provide youth with an alternative rather than a direct path to work that is less valued and less compensated than the efforts of the rest of the country’s citizens.” He is mistaken. The U.S. Congress and the U.S. Department of Labor have had several opportunities to address the ills of the Section 14(c) segregated subminimum-wage workshops that currently have over four-hundred thousand people with disabilities working in environments in which they are less valued and less compensated than the rest of the country.  Thanks to the lobbying efforts of the segregated subminimum-wage workshops, workers employed under Section 14(c ) Special Wage Certificates have seen their wage protections deteriorate from a wage floor of 75 percent of the minimum wage, to 50 percent, to no wage floor at all, leaving some paid as little as pennies per hour. The available evidence demonstrates that every time Congress tinkers with Section 14(c), it makes matters worse, and Section 511 will be no exception. It will simply continue the harmful policy of using public funds to create public beneficiaries. Furthermore, it will give authorization to the extraordinarily large bureaucracy of the rehabilitation system to assist in the process directly.