OPINION: Down Syndrome, Other Mental Health Diagnoses Should Not Prevent You From Fair Labor Standards Act, Minimum Wage, Basic Worker Protections
This article from the New York Times provides greater detail on this issue, and how it affects individuals with all sorts of mental and physical disabilities, and prevents them from earning a livable wage and doing meaningful work.
Having recently become aware of the advocacy on behalf of Down syndrome individuals across the nation by the National Down syndrome Society, it has come to my attention that those who suffer from this condition do not have the same rights as you and I have come to take for granted. People born with Down syndrome, which is a genetic anomaly that has some effects on cognition, exist across a wide spectrum of cognitive, mental, and emotional abilities and levels. Some people born in this way are very intelligent, others are very creative but perhaps less intelligent. Still others seem just the same as anyone else in terms of level of ability and intelligence, but they have this condition.
So, what does it mean exactly that they are exempted from the Fair Labor Standards Act of 1938? This is on a state by state basis, so while in several states, this is not the case, and their archaic laws on the matter have been repealed, in New York and New Jersey, the situation remains. In recent years, there has been a push for New York to join other states in banning any new issuance of 14C certificates. A 14(c) certificate is something that an employer can get as a waiver that allows them to hire workers with disabilities and pay them less than minimum wage. A serious problem with these certificates and exemptions is that it does not say how much less. This is left to the discretion of the employer.
Some employers get these certificates with the ostensible purpose of helping people with disabilities to have meaningful work. They call the places with these exceptions sheltered workshops. In these places, a person with a mental disability including Down Syndrome, will work doing menial tasks such as “…packing, collating, light assembly in a factory, or rolling silverware in napkins for a cafeteria,” according to the New York Times article about this subject. Unfortunately, while these types of exempted programs are often spoken of in positive terms by the Department of Labor, and while they can introduce people with disabilities into the workforce in a positive way, they can also trap people in a cycle of poverty that they never escape from.
One of the reasons for this, as discussed in the Times article, is that people with mental and intellectual disabilities can become very mired in a routine. It becomes comfortable to be working and to have somewhere to go and something useful to do every day. However, it easily becomes a cycle that they find difficult to break and escape from. This leads to such individuals also being unable to ever care for themselves because they cannot afford to really live on their own. In a sense, it is like the factory workers of the 1910s and 1920s before the worker revolution took hold across the country. There were no minimum wages, there were no labor protections or laws, and work was a very unsafe thing. The propensity for low wages meant that many employers would also warehouse the people that worked for them, providing room and board as a deduction from their wages so that they would never see most of the money that they worked for . For people with Down syndrome and other mental and intellectual disabilities, this same situation can be found. They allow people to live with them, and pay for their room and board with the funds they earn from their work. However, they often do live with family members and others, but this is exactly the problem: dependence on others.
One of the other problems that advocates for disabled persons have is that there are other options available, which are in many cases also state funded. Programs such as competitive integrated employment, where people are trained and supervised, but they are paid minimum wage. There are companies that benefit from using these types of programs, and they specialize in hiring people who are intellectually disabled to give them an opportunity to work and to better themselves and be self-sufficient, but in real and meaningful ways. Most states have moved away from 14(c) certificates, mainly because they tend to trap people in a cycle of poverty rather than helping them to be self-sufficient and to express their full potential.
On the national level, advocates are trying to pass the Transformation of Competitive Employment Act, which would prohibit the issuance of any new 14(c) certificates on a national level. In the case of New York, the state can enact protections for workers and follow suit with other states by banning the issuance of new certificates, and working toward phasing out old certificates. Such steps would benefit people with intellectual disabilities who are capable of doing meaningful work. For many people, work is an important measure of self-sufficiency and an ability to fit into social roles. While some individuals are less able to contribute in this way, and considering that the ability to work is not necessary to be a contributing member of society, there are others who want to make this type of contribution.
For them, with supervised employment at the same fair wage that other individuals are entitled to, such changes would be highly beneficial. It can only feel demeaning to know that you are unable to work for the same wages as anyone else would get simply because of a disability. For those whom their disability would not necessarily cause severe challenges, it must have been difficult to be unable to find employment by which they could become self-sufficient, even if they wished to do so. Their disability made it so that the only offers they would receive were for lower-paying jobs than their friends and relatives were entitled to.
Considering the skill and intelligence very often displayed by those with Down syndrome and other disabilities, this was quite unfair. It should not be the case, in our evolving society, that those with intellectual or physical disabilities are shut out from meaningful contributions and working with their own skills and abilities. People who work in these communities are often pleasantly surprised to find that they are more highly skilled and a pleasure to work with than their peers who do not have such disabilities.
This Exception Applies To All Workers With Disabilities That Affect Their Work
The exemption certificate mentioned above can apply to workers with any type of disability that affects their work. So, it can be a physical disability, a mental disability, or an emotional disability, it just has to affect their work output. Over time, however, it has been found that the certificates were used to keep people with disabilities in positions where they could not advance, and it also served in many cases to cause and perpetuate a situation of poverty. In the years that have intervened between the time of the Fair Labor Standards Act, to which this exception applies, and the current day, there have been many changes in the labor market. It has also been found that, as mentioned above, competitive, integrated employment opportunities are much better for the long-term well-being of workers with disabilities. This has the added advantage of not segregating employees with disabilities from the larger workforce. This may lead to increased confidence, which can also have beneficial effects on cognition and behavior. In fact, according to one study comparing the two types of employment (segregated employment such as sheltered workshops versus competitive integrated employment: “Our findings provide further evidence against the use of segregated vocational services for individuals with IDD.”
The bill, introduced in Congress, the Transformation To Competitive Employment Act, would codify the elimination of these special employer certificates into law. There would be no certificates issued, and existing certificates would probably be phased out over a period of time, with no renewals. Disabled people often want to contribute to society in a meaningful way, and for many, that means being gainfully employed in a setting where their contributions and abilities are recognized and appropriately rewarded. It turns out that those with disabilities are very often able to find work that they can do well, and they should be able to find such work without having to be trapped in a cycle of never-ending poverty. The 14(c) certificates have, as mentioned previously, been phased out in a number of states across the country, including neither New York nor New Jersey. This is definitely a situation where the ethical and moral imperative exists for New York and New Jersey to follow other states, and complete a phase out of these certificates and employment types for the disabled population of this city. New York has already introduced such legislation, A4347/S3434 are currently introduced but have not yet passed.
It seems unfortunate that those with disabilities have had to live under the oppression of this legal exception to the fair and minimum wage standards, and it is also confusing. The laws on the books have prevented discrimination on the basis of disability for many years, but at the same time, these certificates exist that basically legitimize discrimination on the basis of disability. They apply only to disabled people (and, in some cases, those under the age of 18 getting their first job while still in high school). It is uncertain why these exceptions were made to the 14th Amendment, but it is even more unclear why they persist. In today’s world, it seems unfair that there are still ways in which people with disabilities are considered lesser than those who are able bodied.
These laws are certainly in need of changing, and as discussed earlier there are some states where it has already changed. However, in even the most progressive of states, these laws remain on the books. People with disabilities will benefit from the change as well, since there will then be no way to actually discriminate against them based on their physical or mental ability. They will still have to be paid the same decent wage that everyone else does. This group will then have fully equal rights when they have the same rights to a fair and minimum wage, along with vacation time and sick pay, that everyone else has.
Banner Image: Person with Down syndrome. Image Credit – Nathan Anderson
