"It is well past time to ensure all American employees with disabilities are protected from discriminatory pay policies," said National Council on Disability's Andrés Gallegos.
President Joe Biden has framed his pandemic “rescue plan” as critical to addressing the enormous public health and economic damage caused by the coronavirus pandemic, but disability advocates hope that one provision in the legislation will finally solve a problem they have fought since far before the crisis.
Buried within the mammoth plan, set to be introduced in Congress this week, is the elimination of a little-known provision in labor law that allows some employers to pay employees with disabilities less than the minimum wage—sometimes pennies on the dollar. Advocates say that with its inclusion in Biden’s pandemic relief plan, the carveout, which dates back to the 1930s, may soon be history. But as both Republican and Democratic members of Congress voice growing sticker shock over the bill’s $1.9 trillion price tag, some fear that their best chance to end the practice could be thwarted.
“If we’re going to make any advancement in civil rights for disabled people, abolishing the sub-minimum wage would be a tremendous step,” said Jaipreet Virdi, a historian of medicine, technology, and disability at the University of Delaware. (There is disagreement among advocates about the use of the identity-first term “disabled people” versus the person-first “people with disabilities,” although the latter is more commonly used). “It would eliminate the notion of disabled people being less valuable or less productive than their able-bodied counterparts—it would mean companies could no longer legally exploit their disabled workers and allow disabled people to achieve their full potential.”
“The minimum wage should apply to all of us,” said Ari Ne’eman, a senior research associate with the Harvard Law School Project on Disability, “including people with disabilities.”
The elimination of the subminimum wage, coupled with raising the federal minimum wage to $15 and ending the tipped minimum wage, is pitched in the rescue plan as key to allowing Americans to “put food on the table and keep a roof over their heads” amidst a once-in-a-century calamity. Its roots, however, stretch back to efforts to contain the last one. Implemented under the Fair Labor Standards Act of 1938, the subminimum wage, known as Section 14(c), was initially pitched as a way to allow “substandard workers”—the term Labor Secretary Frances Perkins used at the time to describe workers with disabilities who could not meet the same productivity standards as their abled colleagues—to develop skills necessary to obtain traditional full-time employment.
But over the ensuing decades, protections within Section 14(c) of the Fair Labor Standards Act were weakened considerably.
“At the time, this was felt to be a very progressive way of getting people with disabilities into the workforce, and although it allowed the payment of less than subminimum wage, there used to be a floor—they couldn’t pay below a certain amount,” said Chris Danielson, director of public relations for the National Federation of the Blind. “Then, oddly enough, over the years, the floor got dropped. There’s literally no lower limit to what they can pay below the minimum wage.”
Organizations that utilize the carveout have defended the practice of paying disabled workers less than the minimum wage, arguing that a low-paying job is better than no job at all.
“I think this is a very difficult issue because you don’t want to disrespect individuals in any way,” Trump-era Labor Secretary Alexander Acosta said during his confirmation hearings. “You want to provide incentives or systems to ensure that individuals that might not otherwise have a job have access to a job and are trained into a job.”
Advocates for people with disabilities call that view paternalistic, and not reflective of a modern economy in which workers with disabilities can participate more fully.
“The argument for keeping it has been, over the years, well, these people wouldn’t have any job at all, if it weren’t for our work centers. But that’s increasingly out of step with the reality,” said Danielson. “Some people with disabilities need more support in competitive integrated employment, they need reasonable accommodations, they may need a job coach, they may need different things in order to accommodate their disability, but they can still compete in a competitive setting.”
Virdi pointed to the nationwide adaptation working from home during the pandemic as proof that current views of “productivity” in the context of disability is outmoded.
“If we’ve learned anything from this COVID work-from-home, many disabled people can actually thrive in their employment once we adopt a more flexible mindset for productivity,” Virdi said, “especially since not all workers can conform to capitalist structures of work.”
The wages, measured by comparing the productivity of a disabled worker to the output of an abled colleague, can be so low that they border on exploitative: a 2012 report from the National Council on Disability found multiple instances where paychecks were measured in cents. Growing public pressure and some state-level action—Vermont was the first state to ban the practice entirely—has reduced the number of people being paid subminimum wage, but an estimated tens of thousands of workers with disabilities are still making an average wage of just $3.34 a hour, according to the U.S. Commission on Civil Rights, which last year called the practice “exploitative and discriminatory.”
“It is well past time to ensure all American employees with disabilities are protected from discriminatory pay policies,” said National Council on Disability chair Andrés Gallegos. “We applaud President Biden's recent call to eliminate 14(c) in his COVID-19 legislative plan.”
Biden had promised during the campaign to enact legislation “eliminating the subminimum wage based on disability,” and has already moved to make his White House more accessible to Americans with disabilities within the first few days of his administration. On Monday, for example, White House press secretary Jen Psaki announced that all press briefings going forward would include an American Sign Language interpreter, part of what Psaki called the administration’s belief in “a more inclusive, more just, and more accessible” nation.
“Through the American Rescue Plan, the president has outlined urgent steps to support all of America’s workers, including workers with disabilities,” Rosemary Boeglin, a White House spokesperson, told The Daily Beast. “The president’s plan will ensure that American workers, including workers with disabilities, can provide for themselves and their families and get to the other side of this crisis with dignity.”
Biden’s relief proposal would also extend direct payments for adults with disabilities who are considered dependents by the IRS, after they were cut out of previous rounds of stimulus checks sent to taxpayers to alleviate the effects of the pandemic.
The proposal has demonstrated broad cross-party appeal, despite its lack of legislative success—the Transformation to Competitive Employment Act, a standalone bill that would create a six-year sundown period for Section 14(c), has supporters across a broad ideological swath of both parties in Congress.
“The pandemic is highlighting the gross imbalance between the productivity of our nation’s workers and the wages they are paid. Many of the essential workers who have braved a public health crisis to keep food on the table and care for our loved ones are still not being paid enough to provide for themselves or their families,” said Rep. Bobby Scott (D-VA), chair of the House Committee on Education and Labor and sponsor of the Transformation to Competitive Employment Act. “The ‘Raise the Wage Act’ is a critical step toward lifting hardworking people out of poverty, addressing income inequality, and building back a better economy where everyone can succeed.”
But there is growing fear among advocates that increasingly public resistance to the size of the relief bill could lead to the provision being stripped.
“We should be doing everything we can to help America’s hardest hit communities, including people with disabilities, recover from this deadly pandemic. One common-sense step is to stop treating people with disabilities as second-class citizens and start paying them a fair, equitable wage so they can live independent, economically self-sufficient lives,” said Sen. Tammy Duckworth (D-IL). “We must end the outdated and exploitative subminimum wage, which sends a message to the disability community that their work isn’t as valuable as the work done by non-disabled people.”
In addition to preserving what Ne’eman called “a horrific poverty trap,” any struggle over the elimination of Section 14(c) could dash the hopes of disability advocates that the relief legislation could be expanded to include desperately needed funds for community service providers and community-based services. Such programs, which keep people with disabilities from being forced into congregate care facilities and institutions, are of particular concern during the coronavirus pandemic—especially after numerous instances where the virus has burned through such facilities.
“If Congress doesn’t send money to support Medicaid home- and community-based services, there’s a real risk that people will be forced into nursing homes, institutions and other congregate care environments, just as they become most dangerous,” Ne’eman said.
