An End to Legalized Discrimination: A Demand for Justice and a Call for Action
by Fredric K. Schroeder
From the Editor: On Thursday morning, July 5, NFB First Vice President Dr. Fred Schroeder came to the podium to deliver a stirring justification for repealing Section 14(c) of the Fair Labor Standards Act. This is what he said:
Section 14(c) of the Fair Labor Standards Act allows employers to pay blind workers and others with disabilities less than the federal minimum wage based on their productivity. Productivity is determined by comparing the performance of people with disabilities to that of people who do not have disabilities. For example, if people who do not have disabilities can fold a hundred packing boxes an hour and the individual with a disability can fold only fifty, then he or she is paid half of the customary hourly wage for that job.
We are asked to believe that Section 14(c) helps people with the most significant disabilities by giving them some access to work--people incapable of working in the competitive labor force--even if it is at a subminimum wage. Of course we know that there are people with very significant disabilities, but we also know that the impact of a disability cannot be objectively measured. The impact of a disability falls along a continuum from least significant to most significant, but where is the line dividing those individuals who are able to engage in competitive work from those who are not?
A friend of mine and a good Federationist, Christopher Fountain, passed away last summer. Ten years earlier Christopher contracted meningitis. As a result he became blind, lost most of his hearing, lost the use of his legs, and was left with only limited use of his hands. Given Christopher’s multiple disabilities and associated health problems, he was advised to go to work folding pizza boxes, even though he was in college at the time he contracted meningitis. Think about that. What sense does that make?
The meningitis made it hard for Christopher to use his hands. No matter how hard he worked, no matter how determined he may have been, if Christopher had gone to work folding pizza boxes, his poor hand dexterity would have limited his productivity. How much? No one knows, but it is almost a certainty that Christopher would have been paid something less than the minimum wage.
But Christopher did not want to fold pizza boxes. He wanted to be a licensed counselor. He went back to school and completed his associate’s degree with a 3.6 grade point average. He then transferred to Old Dominion University to work toward a bachelor’s degree. At Old Dominion he earned straight A’s in all of his major subject area courses and maintained an overall 3.65 grade point average.
Today most blind people earn at least the minimum wage, but make no mistake about it, under federal law no blind person or any person with a disability is guaranteed the minimum wage. On October 4, 2011, at the request of the National Federation of the Blind, Congressmen Cliff Stearns (R-FL) and Tim Bishop (D-NY) introduced H.R. 3086, the Fair Wages for Workers with Disabilities Act, which would phase out Section 14(c) of the Fair Labor Standards Act, thereby ending the shameful practice of paying workers with disabilities below the federal minimum wage. But not everyone supports eliminating subminimum wages.
In its November 2011 newsletter the Missouri Association for Persons with Intellectual Disabilities posed the question: “Where will Sammy, Patti, and Becky go when you eliminate their jobs?” The question itself presumes that, if required to pay the minimum wage, sheltered workshops and other employers would have no option but to lay off Sammy, Patti, and Becky and other workers with significant disabilities. I do not know Sammy, Patti, or Becky. It is possible that they have such significant disabilities that they simply cannot work at a competitive level at any job, but I doubt it. I doubt it because I knew Christopher and many others like him who had no business working at a subminimum wage.
Of course it is not just the Missouri Association for Persons with Intellectual Disabilities that defends paying people with disabilities below the minimum wage. Just last month, in June 2012, Goodwill issued a statement saying: “Across the U.S., 79 percent of people with disabilities are not working today. The Special Minimum Wage Certificate [I feel compelled to interject here. What a euphemism! The special minimum wage certificate? It’s a certificate that allows you to pay a subminimum wage, but I suppose it sounds better the way they say it. Let me get back to the text.] The Special Minimum Wage Certificate is an important resource to employ individuals with significant disabilities. The Certificate enables Goodwill and thousands of other employers to provide opportunities for people with severe disabilities who otherwise might not be part of the workforce.” But is that really true? Assuming that people with disabilities are inherently less productive (an assumption I reject), does that mean that the cost of low productivity must be borne by the individual, or are there subsidies to offset the cost?
Of course a private employer must make a profit, or there is no reason to stay in business, but that is not the case for a nonprofit agency. Let’s assume that a private company has a $1 million janitorial contract. The company prices the contract with the intention of making a profit. Let’s assume that the profit margin is modest—say 10 percent or $100,000. Now let’s assume that that same contract is taken over by a sheltered workshop. The sheltered workshop is a nonprofit agency; but that does not mean that the sheltered workshop drops the $100,000 profit from the price of the contract. It still charges the $1 million, not $900,000. That means that a $100,000 subsidy to the sheltered workshop automatically helps to offset any additional costs associated with a less productive workforce. But there is more. The private company must pay taxes while the sheltered workshop is tax exempt. But wait, there is still more. The sheltered workshop also receives charitable contributions from the public to subsidize the cost of hiring a presumably less productive workforce of people with disabilities. And there is still more. The sheltered workshop receives money from a variety of government agencies to provide training and day-activity and other services; and, if all of that were not enough, bear in mind that sheltered workshops regularly receive municipal, state, and federal contracts on a noncompetitive basis, often at a price higher than the price charged by the private sector. But with all of these subsidies—subsidies rooted in the belief that people with disabilities are less productive and require greater care and supervision—the sheltered workshops say they cannot find the money to pay the minimum wage, much less a decent wage. Set aside for a moment the seemingly endless parade of sheltered workshops that have been found paying their executives excessive salaries, how much money do workers with disabilities in sheltered workshops actually earn?
In the 1980s sheltered workshop employees earned an average of $1.17 per hour (Lam, 1986). Today, they average $1.36 an hour (NASDDS & HSRI, 2009), an increase of 19 cents an hour over three decades. With an average hourly wage of $1.36, how much money do sheltered workshop workers actually take home? Assuming a forty-hour work week, $1.36 an hour comes to $54.40 a week. But sheltered workshop workers do not work forty hours a week. A recent annual report from the National Core Indicators (NCI) Program, a joint venture between the National Association of State Directors of Developmental Disabilities Services and the Human Services Research Institute (2007-2008), found that people in sheltered workshops worked an average of 18.5 hours per week. At $1.36 an hour, that equals just $25.16 a week, hardly a princely sum, certainly not enough to live on let alone being enough to support a family--and hard to swallow when there are sheltered workshop executives making hundreds of thousands of dollars a year.
Defenders of maintaining special wage certificates argue that it is only those individuals with the most significant disabilities who are paid a subminimum wage and only after a fair and objective evaluation of their productivity. They argue that for those individuals, people like Sammy, Patti, and Becky, the subminimum wage system gives them the opportunity to earn a little money--not much but a little. But why must Sammy, Patti, and Becky prove their worth while others are guaranteed the minimum wage? [I am tempted to interject, my good friend Allen Harris would say: without putting too fine a point on it,] if we were to pay members of Congress based on their recent productivity, I suspect that a number—perhaps a large number—might find their paychecks startlingly small.
We are still left with a serious and difficult question. We do not want to take away anyone’s opportunity to work, especially that of people who have the most complex disabilities. But we are asked to take on faith that the sheltered workshops are somehow able to know which individuals are able to work competitively and which are not. We are asked to take on faith that the productivity of people with disabilities has been fairly measured. And we are asked to take on faith that the sheltered workshops would go out of business if they had to pay their workers the minimum wage. But how do we know that the people working in sheltered workshops have such limited ability that they could not work anywhere else? How do we know that their productivity has been fairly measured? And how do we know that the sheltered workshops would go out of business if they had to pay their workers the minimum wage? The answer is that we don’t. We are asked to take it on faith. We must end the practice of paying blind people and others with disabilities below the minimum wage. It is nothing less than legalized discrimination.
Section 14(c) of the Fair Labor Standards Act is rooted in the presumption that blind people and others with disabilities must prove their worth while others are assured the minimum wage. That is discrimination. It is based on the unquestioned assumption that blind people and others with disabilities are automatically, inevitably less productive. That is discrimination. It is rooted in the assumption that blind people and others with disabilities require the care and protection of a facility. That is discrimination. It is based on the assumption that blind people and others with disabilities can perform only low-skilled, low-wage work. That is discrimination. It assumes that blind people and others with disabilities have no hope of lifting themselves out of poverty and earning a decent wage. That is discrimination. And it assumes that the sheltered workshops would never take unfair advantage of their workers, and that is naïve, and it too is discrimination.
I ran a sheltered workshop in the mid-1980s. The day I became director, we eliminated the practice of paying subminimum wages. No one was laid off, no one was forced out, and the workshop did not go broke. It is time to stop pretending that sheltered workshops are benevolent charities that would pay the minimum wage if only they could. If they cannot pay the minimum wage given the numerous subsidies they receive but can find money to compensate senior executives with exorbitant salaries, in some cases paying their chief executives in excess of half a million dollars a year, that is abuse; it is abuse of the law, abuse of workers with disabilities, and abuse of the trust and generosity of the community.
There is no question that Christopher had serious multiple disabilities. If he had gone to work folding pizza boxes, even if he had managed to work at a competitive rate, at best he would have earned the minimum wage. You can call it ignorance. You can call it low expectations. You can call it paternalism. But it is legalized discrimination, and it must end. We must pass the Fair Wages for Workers with Disabilities Act, and we must pass it now, and we will pass it because we are the National Federation of the Blind.