This article first appeared in Real Clear Policy on November 1, 2018.
On its face, the Fair Labor Standards Act (FLSA) is an exceptional piece of legislation. By setting basic minimum wage and overtime pay standards, the FLSA gives bargaining power to workers, an anomaly in our profit-driven market.
Still, this celebrated accomplishment of effective advocacy by living wage proponents — enacted 80 years ago — has its loopholes and shortcomings. Certain jobs, in the domestic or agricultural sectors, for example, are excluded from FLSA coverage. It is no accident that these jobs are often performed by white women and people of color; politicians interested in maintaining male domination of family economic life, as well as Southern politicians invested in preserving white supremacy, pushed for these exclusions to be put in place in the law.
FLSA also has a grave impact on the largest minority group in the United States: people with disabilities. Notably, it excludes disabled people from the provision requiring the payment of minimum wages. Subminimum wages threaten the imperatives of independent living and full inclusion of people with disabilities within society that are key elements of disability activism. October commemorates National Disability Employment Awareness Month, but we still have a long way to go to achieve fully equitable standing for people with disabilities, who have historically been excluded and continue to face discrimination.
Today, one existing source of employment for disabled individuals is sheltered workshops, as developed under the aegis of Section 14(c). According to Nonprofit Quarterly,
“Sheltered workshops” refers to segregated working environments for persons with disabilities where they perform menial jobs such as putting labels on jars or stuffing envelopes for hours on end, often at far less than minimum wage.
These jobs often fall under one of the “Eight F’s” of disability employment: food, filth, fetching, folding, filing, flowers, friendly, and festive. While employment can help disabled people gain independence, sheltered workshops actually reinforce dependence as they continue to segregate disabled people from the labor market while paying them absurdly low wages, as low as 22 cents an hour.
The concept of subminimum wages for workers runs counter to both Supreme Court precedent and the main thrust of the FLSA itself. The practice of compensating people with disabilities at less than the federal minimum wage — based on subjective determinations of their productivity compared to non-disabled workers — originally came at a time when the need to raise a nation out of economic depression came at the cost of dehumanization and disrespect.
Despite mounting evidence over the past several decades that has challenged such assumptions of substandard productivity, persons with disabilities have yet to be liberated from what can only be referred to as servitude in sheltered workshops, which are supposedly meant to provide vocational training and rehabilitation. The methods used by employers to determine subminimum wage can easily be manipulated — for example, by measuring disabled workers against rates achieved by non-disabled workers who work at a pace that cannot be sustained over time, or by arranging the work environment in an inaccessible way that prevents disabled workers from reaching their full potential. In addition, poor oversight of 14(c) and amendments to the FLSA in 1966 and 1986 that aimed to ensure that sheltered workshops pay no less than 50 percent of the minimum wage have been insufficient in increasing the earnings of exploited disabled workers.
It is absurd that while the main rationale for the FLSA was to provide workers with an acceptable standard of living, the rate set for disabled individuals is not determined by any objective benchmarks related to productivity or ability. Why should hundreds of thousands of people with disabilities endure lower minimum wages that cannot provide them the acceptable standard of independent living?
The law prohibits subminimum wages for less productive non-disabled workers, but plainly discriminates by allowing them to be paid to those who have a disability.
Dr. Rabia Belt is Assistant Professor of Law and Professor of History (by courtesy) at Stanford University, a member of the Board of Directors for the Disability Rights Bar Association, and Councilmember of the National Council on Disability, the independent federal agency that advises the President, Congress, and other federal agencies regarding policies and practices that affect people with disabilities. This op-ed represents her personal views.
Doron Dorfman is a doctoral candidate at Stanford Law School, a Gerald J. Lieberman Fellow, and a Lecturer at the Handa Center for Human Rights and International Justice at Stanford University.