A letter to the editor from John Wayne Barker of Merrick Inc.

It took me nearly three months and I just finished reading the “Subminimum Wages: Impacts on the Civil Rights of People with Disabilities” 2020 Statutory Enforcement Report issued by the U.S. Commission on Civil Rights (CCR). Not only was it long at 349 pages and detailed with 1,320 footnotes; more than 9,700 public comments were submitted (far more than any other issue ever studied by the CCR) and is a great example of a predetermined recommendation waiting for a report.

This CCR had eight members with four Presidential and four Congressional appointments. Established as an independent, bipartisan, fact-finding federal agency, their mission is to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws. They pursue this mission by studying alleged deprivations of voting rights and alleged discrimination based on race, color, religion, gender, age, disability, or national origin, or in the administration of justice. It is their view that they play a vital role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern to the federal government and the public. It is my view this was anything but an objective study and recommendation.

In retrospect, I should have begun reading the findings and recommendations beginning on page 241. In what must have been a 6 to 2 majority, the CCR recommended, “Congress should repeal Section 14(c) with a planned phase-out period to allow transition among service providers and people with disabilities to alternative service models prioritizing competitive integrated employment.” I understood their primary reasoning to be:
The federal Department of Labor has repeatedly found providers operating with 14(c) certificates to be limiting people with disabilities participating in the program from realizing their full potential.

In Minnesota we have day programs that offer special minimum wage and center-based work as options for people with I/DD to better realize their earning potential. We have also led the effort to increase opportunities for people with I/DD to find and hold minimum wage jobs. Still, there are more than 7,000 people in our programs that prefer and need the 14(c) option. As one mother stated, it is “less-than-minimum wage or no job at all”: Furthermore, proponents of eliminating 14(c), seem to equate the value of a person with I/DD based on their ability to earn a minimum wage whereas nonprofit day programs value all the people we serve regardless of their hourly wage.
Providers operating with 14(c) certificates are able to turn substantial profits and returns for their corporate officers while paying workers with disabilities less than minimum wage; businesses who contract with these providers benefit from decreased labor and benefit costs.

Day programs in MN are nonprofits and their audits and tax returns are public documents. Furthermore, in 2019 I conducted a study of nonprofit compensation in MN which confirmed that executives of day programs are not excessively compensated and, if done correctly, businesses that contract with us pay the same labor cost per unit they would pay if using a nondisabled workforce.
People with I/DD who are currently earning subminimum wages under the 14(c) certificate are not categorically different in level of disability from people with I/DD currently working in minimum wage jobs.

With more than 40 years of experience in disability services, I know this is a myth and there is a difference in work skills between people with I/DD working in the general workforce and those working for a special minimum wage. One Commissioner refuted this myth by stating ~ “If it were possible for a person working for subminimum wage to earn the full minimum wage ‘with a little support,’ don’t you think these devoted parents would have leapt at the opportunity”? This myth is simply propaganda the CCR needed to support their predetermined recommendation.
Paying low wages to people with disabilities harms their economic potential, increasing the likelihood that they will remain reliant on state and federal support.

In reality, people with I/DD eligible for state and federal support have chronic and lifelong disabilities that preclude most of them from ever being financially independent. To assert otherwise is to label most people with I/DD a failure for relying on state and federal support.
The American with Disabilities Act (ADA) requires increased integration of people with disabilities into the workplace and society and is facilitated by technological advancements that obviate any need for subminimum wage work.

The ADA does not require employers to lower production standards – whether qualitative or quantitative – applied uniformly to employees with and without disabilities. Therefore, a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a “qualified” individual with a disability within the meaning of the ADA.
Typically I would offer some commentary that supports my position. Instead, I am going to list some of the most notable dissenting comments from CCR Commissioners Heriot and Kirsanow:

No one in his right mind would think that the U.S. Commission on Civil Rights—with its mere two days of fieldwork on this issue—has better insight than these mothers have into what is best for their sons. It’s absurd. Indeed, my colleagues on the Commission must know it’s absurd. Why else bury the fact that 98% of the commenters were in favor of 14(c)? These women know their sons are not going to be earning a competitive wage. They are not interested in chasing rainbows and unicorns. For their sons, it is a sheltered workshop at less-than-minimum wage or no job at all.

Even zealous advocates of terminating the so-called “subminimum wage program” admit that its elimination results in lost jobs. It doesn’t take a labor economist to tell you that the demand for unskilled labor of Down syndrome adults is not infinitely inelastic. If the price goes up, the number of jobs will go down. If we could raise the minimum wage without increasing unemployment, we’d have long ago set the minimum wage to $1,000,000 an hour and made everyone rich. But it just doesn’t work that way.

Generations ago it was more common for people to feel uncomfortable around the severely disabled. They wanted to keep disabled persons out of sight, because … well … disabled persons offended their sense of aesthetics. Today those who want to abolish sheltered workshops and Section 14(c) believe themselves to be a universe apart from those earlier generations. But they are the same. In both cases, it is all a matter of appearances … of what looks good. What is actually in the best interests of the disabled individuals doesn’t enter their minds.

This report stands out because it threatens to make the world worse for those least able to fend for themselves. The report and its findings and recommendations take the tone throughout that although some people have not yet caught up with the caravan of progress and realized that competitive integrated employment is the wave of the future, the evidence favors the superiority of this approach. This is wrong. The Commission received far more public comments from parents of individuals who tried working in mainstream environments and did not thrive there. The “story after story” consists almost exclusively of a few people who testified at the Commission’s public hearing, a tiny smattering of parents whose children transitioned away from a sheltered workshop, and some people in Vermont, most of whom never worked in a sheltered workshop. It is not until page 99 that the report divulges that 98% of the public comments submitted to the Commission support the continuation of 14(c).

It is also worth noting that the report found that employees with cognitive disabilities in Virginia and Arizona (which permit the payment of 14(c) wages) had the highest annual mean earnings every year since 2009. Vermont and Maine, which have ended 14(c), overall have the lowest annual mean earnings for employees with cognitive disabilities.
But we do not love these disabled people more than their parents, siblings, uncles and aunts do. We do not know the abilities and limitations of these disabled people as well as their family members do. In fact, we do not know these people at all. If it were possible for a person working for subminimum wage to earn the full minimum wage “with a little support,” don’t you think these devoted parents would have leapt at the opportunity? The truth is that these individuals are only able to make even the special minimum wage with a lot of support, not just a little support.

The report claims that Section 14(c) may violate the Equal Protection Clause of the 14th Amendment. This can quickly be disposed of. 14(c) does not treat people with disabilities more harshly than people without disabilities. If a person without a disability is not productive enough to warrant the minimum wage (imagine a teenager who does not have the skill of his older coworkers), they aren’t paid commensurate with their productivity. They are fired. 14(c) is an accommodation for people with disabilities. Instead of being fired, they are paid commensurate with their productivity.

In regard to Section 14(c) possibly violating the ADA, it is a well-established canon of statutory construction that Congress is presumed not to abrogate an existing law unless it does so explicitly. The ADA does not explicitly abrogate 14(c). If one needed any further evidence of this, simply look to the fact that bills have been introduced to abrogate 14(c). Further, the ADA only requires that employers make reasonable accommodations for qualified individuals. The EEOC’s guidelines for “reasonable accommodations” states: An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a “qualified” individual with a disability within the meaning of the ADA.

Even if Olmstead is a correct interpretation of the ADA, it does not require integration at all costs. Rather, Justice Ginsburg wrote, placement of individuals in community setting may be required when “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Nothing in this holding suggests that States are required to close sheltered workshops when such action is opposed by people with disabilities or their guardians, who represent their interests.

Our colleagues note in their findings and recommendations that there is bipartisan support for eliminating 14(c). True. They failed to note that there is also bipartisan support for maintaining 14(c). Rather, it is a matter of realism and trust. The realism lies in recognizing, as so many parents have, that there are some people whose disabilities mean that their life choices are limited. The trust lies in trusting that the parents and guardians of these individuals, who know them far better than we do, can decide whether a job in competitive integrated employment, a 14(c) job in an integrated environment, a sheltered workshop, or day activities are best for their loved ones.

My conclusion is that most objective readers of the CCR report would agree that the 14(c) certificate is a valued option for people with I/DD and their families. Why the CCR majority recommended it be phased-out can only be explained by political appearances and the convenient headline that everyone should at least make the minimum wage. We need to stop listening to the false choice between either earning a minimum wage or not because special minimum wages are based on the local prevailing wage that is always higher than the minimum wage. We need to ignore the false advocates like Jillian Nelson from the Autism Society of MN who want to take this choice away from people with I/DD and Andrea Zuber of The Arc of Minnesota who want us to chase rainbows and unicorns. We need to hold their Boards accountable for allowing their nonprofits to be used as a platform to devalue and shame people with I/DD that earn a special minimum wage. Minnesotans should celebrate that their state supports 14(c) as an option for people with I/DD to make a wage based on their productivity that provides real solutions to hundreds of businesses in our local communities. Let us demand truth over appearance, choice versus bias, and family trust over professional platitudes. We must do what the CCR didn’t by trusting the facts, ignoring unsubstantiated and politically motivated allegations, and listening to those with I/DD and their families. For that to happen, YOU the person with I/DD, YOU the family member, and YOU the professional need to protect the 14(c) option in the State of Minnesota especially when they try to shame YOU into silence.