The continued struggles of women, minorities, and individuals with disabilities to achieve equality in the workplace are partly the result of societal and cultural forces, but they differ in at least one key respect: The law explicitly enables employers to pay workers with disabilities less than the federal minimum wage of $7.25. In other words, under the law, individuals with disabilities may earn less than their colleagues who are not disabled due to a trait they cannot change.
This is the result of a section within the Fair Labor Standards Act dating back to 1938. While this landmark law had a profound impact on America’s economic, workforce, and social development by creating a federal minimum wage, establishing overtime pay, and prohibiting oppressive child labor, it proved discriminatory toward people with disabilities. By creating a subminimum wage for workers who were at the time seen as “substandard” given their perceived productivity levels, the Fair Labor Standards Act failed to protect individuals who use wheelchairs, are blind or deaf, or have cerebral palsy, autism, or certain other physical or mental health impairments.
In effect, the Fair Labor Standards Act granted employers the right to use discriminatory pay practices when it comes to workers with disabilities upon receipt of a certificate from the Department of Labor. To receive this certificate, employers simply provide the Department of Labor with a few basic pieces of information such as government contracts held, an hourly wage survey of workers with disabilities, and details about the workers intended to be paid a subminimum wage—including identifying the primary disability deemed to affect job productivity and assigning these individuals a job productivity rating.