by Samuel R. Bagenstos
From the Editor: On December 2, 2011, a guest columnist appeared in the Des Moines Register. It was Samuel Bagenstos, principal deputy attorney general in the Civil Rights Division of the U.S. Department of Justice. He addressed the NFB convention last summer, and his remarks were reprinted in the December issue of the Monitor. We are reprinting his column on the importance of repealing Section 14(c) of the Fair Labor Standards Act because it provides an excellent summary of the arguments in favor of passing the Fair Wages for Workers with Disabilities Act, H.R. 3086, for which we are striving to get cosponsors in the House of Representatives. Here is the column:
In 1990 Congress passed the Americans with Disabilities Act (ADA). Congress found that disabled Americans experienced various kinds of discrimination, including overprotective rules and policies and segregation and relegation to lesser services, programs, activities, benefits, jobs, and other opportunities. Twenty years later the statute books still contain a federal law that itself discriminates against people with disabilities, reflects an overprotective policy towards them, and encourages segregation and relegation to lesser jobs. That law is Section 14(c) of the Fair Labor Standards Act, which authorizes employers to pay less than the minimum wage to certain employees with disabilities. Congress should eliminate this 1930s-era anachronism.
When Congress passed the Fair Labor Standards Act in 1938, it set a federal minimum wage but wrote into Section 14(c) of the law the longstanding practice of exempting certain kinds of employers of people with disabilities. Most of these employers are segregated workplaces for disabled workers, commonly known as sheltered workshops. (Not all sheltered workshops use the exemption.) Today, because of this provision, along with other laws requiring the federal government to procure certain goods and services from sheltered workshops, there are 2,500 such facilities employing 350,000 workers with disabilities at subminimum wages.
Section 14(c), on its face, discriminates against workers with disabilities by singling them out and denying them the minimum wages to which all American workers are presumptively entitled. Nonetheless, the operators and supporters of exempt facilities continue to justify this discrimination. None of their justifications, however, withstand even cursory scrutiny. Outwardly Section 14(c) suggests that its purpose is to ensure that open-market employers are not discouraged from hiring workers with disabilities by the requirement to pay them a minimum wage--an argument that has been advanced by proponents of the exemption. The premise of this justification is that, for a significant number of people with disabilities, nothing can make it worth the while of open-market employers to hire them. Congress concluded when it adopted the ADA that it is often stereotypes, not facts, that lead employers to believe people with disabilities cannot be productive. The evidence is clear that a below-minimum wage is not an effective strategy for encouraging employers to hire people with disabilities. Section 14(c) has simply served as a subsidy to sheltered workshops. According to the Government Accountability Office, only about 5 percent of people receiving subminimum wages under this law work for open-market employers. The majority work for sheltered workshops.
Some argue that Section 14(c) gives people with disabilities the opportunity to learn key job skills before going on the open job market. But this justification doesn't fit the facts. The evidence from several studies shows that most people employed in sheltered workshops never leave them, and the workshops provide poor training for competitive employment because they use outdated manufacturing.
Finally, exemption supporters argue that the system allows those who can't compete in the general workforce to earn something at least, and that the law requires wages to be tied to a worker's productivity. This argument, too, is fatally flawed. The outdated production methods in many sheltered workshops artificially depress the productivity of workers while saying nothing about how they would fare in a modern workplace. All of the evidence about productivity comes from the employer--who has a financial incentive to exploit the cheap labor. The problem of unemployment among people with disabilities is serious. But the subminimum wage provision in Section 14(c) is not the solution.
Section 14(c) discriminates against people with disabilities. It has not served its original purpose of ensuring that open-market employers hire people with disabilities. Instead it has simply provided a subsidy for employers that have done a poor job of preparing their workers for open-market employment. Section 14(c) is an anomaly in post-ADA America, and Congress should repeal it.