On September 17th, the U.S. Commission on Civil Rights released a report entitled, “Subminimum Wages: Impacts on the Civil Rights of People with Disabilities.” This report examines Section 14(c) of the Fair Labor Standards Act. Section 14(c) is an exception to the minimum wage which permits employers who receive a certificate from the Department of Labor to pay disabled workers a special minimum wage commensurate with their productivity. In other words, if a disabled person is only 70% as productive as an average non-disabled worker, the employer can pay the disabled worker 70% of the usual wage, whatever that wage might be. Some 14(c) employers are what are called Community Rehabilitation Programs (CRP) or “sheltered workshops,” which primarily employ people with disabilities and have more supervision and support than would be available in a mainstream employer. Some 14(c) employers are mainstream employers that employ disabled people who are able to work in a mainstream environment, albeit at a slower pace. 

The word “disabled” is, in this context, a bit misleading. Although Section 14(c) may initially have been intended to encourage employment of people with physical disabilities, advances in technology and training allow many people with physical disabilities such as blindness, deafness, or mobility issues to work mainstream jobs and be equally as productive as people without disabilities. Today, most people who are employed under a 14(c) certificate are people with developmental and intellectual disabilities, although there are also some people with serious physical disabilities.

At first blush, allowing employers to pay people with intellectual disabilities less than people without disabilities might seem like invidious, irrational discrimination. And indeed, that is the view adopted by the progressive then-majority of the Commission (the composition of the Commission has since changed to four conservatives and four progressives). However, it is important to bear in mind that disabled people are not required to work in a job that pays a commensurate wage. If a disabled person can find a job that pays regular minimum wage (or above) and is as productive as a person without disabilities, there is absolutely nothing stopping him from taking that job. The special minimum wage is intended to serve as a concession for people who cannot be as productive as a non-disabled person, and so would otherwise be unemployed.  

The Commission majority recommended that Section 14(c) be repealed “with a planned phase-out period to allow transition among service providers and people with disabilities to alternative service models prioritizing competitive integrated employment.” Other recommendations focused on increasing federal funding for people with disabilities.

What is mostly ignored by the report and its findings and recommendations is that those most intimately familiar with Section 14(c) – the parents and guardians of developmentally disabled adults who are employed under a 14(c) certificate – overwhelmingly support the continuation of this statutory provision. The Commission received 9,700 public comments in response to this briefing, which is by far the largest number of comments the Commission has ever received on anything. 98 percent of the commenters supported the continuation of 14(c).

Two commissioners, Peter Kirsanow and Gail Heriot, dissented from the report. The primary assumption underlying the report and the Commission’s findings and recommendations is that people with disabilities (who in the case of 14(c) are mostly people intellectual and developmental disabilities) are all capable of working in mainstream jobs, perhaps with a little additional help.  The problem is, according to Kirsanow and Heriot, that the Commission undertook no research to determine if this assumption is in fact true. As Commissioner Kirsanow wrote in his dissenting statement:

The Commission’s Finding No. 3 also states:

People with intellectual and developmental disabilities who are currently earning subminimum wages under the 14(c) program are not categorically different in level of disability from people with intellectual and developmental disabilities currently working in competitive integrated employment.

The Commission adduced no evidence supporting this assertion. In order to say that people earning 14(c) wages are not categorically different from people employed in integrated jobs, the Commission would have needed to conduct a far more in-depth study. . . [T]he Commission would have needed to have found representative samples of people with intellectual disabilities who are working in 14(c) employment and people with intellectual disabilities who are working in competitive integrated employment. The Commission then would have needed to study the level of the intellectual disabilities in both groups to ensure that both the average and median IQs of the two groups are comparable. The Commission then would have needed to study whether behavior difficulties are comparable against the two groups.

The Commission did none of this.

Nor does real-life experience in ending the special minimum wage provide cause for optimism. As Commissioner Heriot wrote in her dissenting statement:

Even zealous advocates of terminating the so-called “subminimum wage program” admit that its elimination results in lost jobs. Vermont has eliminated sheltered workshops and 14(c) wages. The [Commission] subcommittee had a roundtable meeting with various advocates of Vermont’s decision in Burlington, Vermont on March 3, 2020. At that meeting, I asked whether fewer individuals had jobs after Vermont eliminated sheltered workshops and Section 14(c) wages. It took a while to get a coherent answer. Finally, Monica Hutt, the Commissioner at the Vermont Department of Disabilities, Aging, and Independent Living told us:

I think maybe the piece that we didn’t articulate because it’s really obvious to us …. [W]e didn’t close the sheltered workshops and … everybody that was working in the sheltered workshop went to work in the community. That would be an impossibility. … But people’s hours were still filled. They were not just left abandoned because there wasn’t some minimum wage to keep them busy at an employment somewhere.

The parents and guardians (and even some people with disabilities themselves) wrote to the Commission urging that it recommend the retention of 14(c). In addition to their loved one’s reduced productivity, many discussed behavioral concerns that either make them difficult to work with, or particularly vulnerable to being abused or taken advantage of. These family members were very concerned about 14(c) forcing their CRP to close because it would no longer be financially viable. One sister wrote:

Whomever it was that came up with the idea to get rid of the workshops plainly doesn’t have a family member in the situation to need one. This reminds me very much of when my sister was in junior high school and was mainstreamed. She went from the protected environment of special education classes to the “normal” classes with other students, and this was the most traumatizing experience of her life. I was young, but I remember how bad it was. Forty years later, [D] still refers to her school as “that place.” It was “that place” at which [D’s] self-esteem was completely destroyed. She was at the mercy of a society to whom she was a freak, a retardo, a weirdo – she was different, and our society doesn’t like different. And that’s exactly what the proponents of getting rid of 14c will be doing to [D] again if they strip her of the protections 14c provides.

The full Commission report is available here. Commissioner Kirsanow's statement is available here, and Commissioner Heriot's statement is available here. All the public comments received by the Commission, which have been anonymized, are available here.