Labor and Disability: Legislation & History – Donna Gary

OUT ON THE HILL is the official blog of the Victory Congressional Interns. Views expressed do not necessarily reflect those of LGBTQ Victory Institute.

My internship cohort, coordinator team and the various connections I’ve had the honor of making so far on Capitol Hill have been extremely receptive to my concentration at NYU, my unorthodox business cards and most importantly my interest in disability justice, sex worker protections and criminal justice reform.

I was terribly nervous my first few days on the Hill. Before I came there was this underlying fear I saw proliferate on the faces of people I told I was moving to DC to work in the House of Representatives. Surely the Hill would crush this gullible poet soul of mine they said. I was fearful I would return home more discouraged than ever about the changemaking power of grassroots and community organizing and the transparency in legislative process would be futile in the end. Four weeks in and have to say that I genuinely do feel more equipped to help my community, I have a better understanding of the power I have as someone who can currently vote, and have proof that grassroots organizers make the Hill shake in it’s boots.

I can’t say much about the internal workings of my office but I will say interns are the front-lines of the Hill. In the day to day time running around the different buildings, most legislative interns pick up calls, give tours, attend briefings, read legislation and reports and take classes on the Hill. On top of that there are receptions, dinners, parties, seminars, and gatherings just for interns to sweat their weight in anxiety and shoot their shot. As someone who enjoys research and writing, I have also found that my office appreciates credibility especially when I offer it to back up any claim that I have.

Of course sometimes there is no numbers or statistics on the issues that matter most, but there is always someone calling for more of what you need, and those calls to action, funding and research are just as important. One personal project I have particularly enjoyed working on is learning about the history of labor and workers rights with a disability lens. Unsurprisingly with the arise of rights and non-discrimination legislation, people with disabilities are often the last to be included let alone consulted in legislation that supposedly makes the United States more equitable. One great example is the fight for  workers rights and minimum wage. That timeline of protection of workers rights is much more belated for people with mental, physical, mental and emotional disabilities in the workplace.

People with disabilities have been campaigning to be employed since at least 1947. This was the year the first National Employ the Handicapped Week in DC capture public attention. Thirty years later, 1975 the U.S. Supreme Court decision in O’Connor v. Donaldson ruled “people could not be institutionalized against their will in a psychiatric hospital unless they were determined to be a threat to themselves or to others.” People who had been formerly confined to their homes, or confined without their consent could now seek jobs to provide for themselves.  In 1983, Section 14 of the Fair Labor Act became a pivotal opportunity for employers to capitalize on the labor of formerly institutionalized individuals looking for work.

In one report the CRS describes the Fair Labor Act, the 1983 Section 14 (c) as an amendment aiming to provide people with disabilities the opportunity to work and has protections in place to prevent exploitation of disabled people.

Intention is all fine and good but a closer look at the section and it becomes clear it incentivizes the employment of people with disabilities by giving employers the opportunity to pay disabled employees less for the same labor as their able-bodied counterpart. The section allows “special wage certificates,” to be requested by employers who hire people with disabilities. By “special wage,” they mean anywhere below the minimum wage, and in some cases with no wage floor. The possibility of people with disabilities joining the workforce on their own terms was diminished by the arrival of this section. That was 1983.

The repeal of this section is long overdue.

A “special certificate,” with no wage floor in certain circumstances, reflects a stigmatized view of the value individuals with a wide range of disabilities bring to our workforce. Those that want to contribute to the world through the labor workforce, or need to do so to survive are paid below the minimum wage while doing the same labor as their counterparts not because they lack the capacity but because employers have the option. This is not the first time this section has been challenged.

The use of “subminimum wage rates,” in the same Act is used to allow tipped employees to be paid less than the minimum wage but assumes the remainder will be made up in tips. No such “tip credit,” exists for the individuals with disabilities who are deemed incapable by their employer to be paid a minimum wage.

Congress has seen several amendments and repeals to this section to accommodate hearings about the value and productivity of blind and deaf persons who are interested in working, and the Department of Justice’s lack of enforcement of protections to employees. The Murphy oversight hearings of 1994 found that the “right to an expedited hearing on any complaint of inadequate wages,” was rarely filed by the DOL (CRS-27).

In 2005 CRS shared a report specifically on the treatment of workers with disabilities under Section 14 (c) that notably includes an independent statement from former Assistant Secretary of Labor, Donald Elisburg;

… Congress has created a law that is not speedy, is extremely technical, permits below minimum wages to be paid to people whose only disability is that they are blind, insists that individuals pursue a claim on their own behalf, and then must pay legal fees even if the employer is at fault.

Eliminating these “special wage certificates,” also gives Americans who are in danger of being exploited for their identity a chance to receive minimum wage and seek recourse.