Federal Bill Would Put Jobs Out of Reach for Severely Autistic Adults

Everybody should have access to work, but a new bill, based on the fantasy that all intellectually disabled adults could achieve competitive employment, would trash cherished job programs for the severely disabled. 


Under the Transformation to Competitive Employment Act, the author’s 20 year-old severely autistic son, and countless others like him, will be relegated to the status of permanent volunteers, effectively prohibited from landing paid employment.

By Jill Escher

My son Jonathan is a delightful nonverbal autistic 20 year-old man. Powerfully built, he has a supercharged energy and a deep well of affection for loved ones and his iTunes library. But Jonny is also profoundly intellectually impaired. Accomplishing even simple tasks requires vigorous prompting and continuous oversight, and chances are that along the way he might bite, stand on, or even throw his chair. As muscular and lovable though he may be, his chances of landing a competitive job are exactly zero.

The TCEA was introduced on January 29, 2019 by Congressman Bobby Scott (D-VA-3), chairman of the House Education and Labor Committee, Senator Bob Casey (D-PA), and Rep. Cathy McMorris Rodgers (R-WA-5).

Nevertheless I can envision that some day Jonny could participate in a disability program engaging in simple but important work (albeit with hawk-like oversight and prompting), perhaps boxing or moving heavy objects, or picking up garbage. But under a federal bill introduced in January, Jonny’s hope for future wage-earning would be thoroughly trashed. 

The Transformation to Competitive Employment Act (TCEA) (S. 260 and H.R. 873) would, over a period of six years, completely phase out disability-specific sub-minimum wage programs, even those serving the severely cognitively disabled who would otherwise be unable to access work. The bill would also provide a grant program to help expand capacity for those capable of achieving competitive employment.

Listen, the TCEA is in part addressing an important issue. Section 14(c) of the Fair Labor Standards Act, which authorizes employers to pay specially tailored wages to employees with disabilities in certain restricted circumstances, has at times been abused by bad-apple employers to pay disabled employees less than they were worth. Though affecting a small portion of the 14(c) programs, the exploitation was indeed something to be remedied. The TCEA offers some needed fixes to our labor system by ensuring these workers have a way to move out of 14(c)  programs and into competitive integrated employment. Amen to this wage justice.

But for the more impaired portion of the disability community, the 14(c) program fills an urgent need. It is simply inconceivable that a commercial employer would willingly hire someone like Jonny, who cannot talk, read, or write, and at best can follow only one-step directions, over a non disabled person whose productivity is ten times greater and who is unlikely to chew the furniture.

Some disability advocates are telling lawmakers that all people no matter how disabled can find integrated, competitive employment. Please. Just stop. I don’t know what these advocates have been smoking to spout such fantasies, but clearly they are not spending much time with guys like mine, nor have they ever tried to employ them.

So it should be clear to any fair-minded person that the TCEA risks throwing the jobs baby out with the social justice bathwater. Beyond its preposterous assumption that all disabilities are created equal, let’s look at some other problems with the bill: 

In addition to the TCEA, the Raise the Wage Act, H.R. 582 and S.150, also contains provisions to close 14(c) options. It is also sponsored by Bobby Scott (D-VA). This bill is tied to the movement to raise the federal minimum wage, so it has many more sponsors (currently 204, versus 20 for the TCEA).

  • The TCEA ignores the staggering increase in severe autism and what should be a clear imperative to create vastly more, not fewer, options for day programing and supported forms of employment. In California, the population of adults with developmental disability type of autism will grow nearly five-fold over the next 20 years. Only a small portion of these adults can achieve competitive employment. The rest? We need to maximize their options, including work that pays special wages based on less-than-competitive productivity. 

  • The TCEA dodges the obvious fact that subminimum wage work is but one benefit accruing to the significantly disabled clients. Work programs serving adults with significant intellectual disabilities like Jonny are typically run by mission-driven, not profit-driven, nonprofit organizations. These adults are typically also beneficiaries of supervision, therapeutic care, training, and social and recreational programs funded and provided by the nonprofits. It can be very costly to serve these disabled individuals: they often require high staff ratios, intensive supervision, crisis intervention and ongoing coaching. A standard job supervisor is unlikely to treat seizures, change diapers, or handle getting punched or scratched, to put it mildly. The extremely valuable, though non-monetary, therapeutic dimensions should be considered before over-simplistically labeling subminimum wages as discriminatory.

  • 14(c) programs serving the significantly intellectually disabled provide a protected form of employment unavailable in the free market. “It’s not an employer-employee relationship,” explains Tracey Brown-May, Director of Advocacy, Board, and Government Relations at Opportunity Village in Las Vegas. “People employed here who are earning 14(c) wages are not at risk of being fired.” In other words, the employee’s needs comes first, and profitability is not the prime endpoint. The nonprofit work is typically tailored to the particular skillset of the worker, a customization unavailable in the free labor market where individuals are expected to conform to pre-established performance standards. Disability advocates often accuse 14(c) wage program of exploiting or abusing their disabled workers, but at least for severely challenged adults, the opposite is almost always true— the programs often protect clients from exploitation and abuse by offering a protected form of employment.

  • No person with a disability is forced into 14(c) work, and wages are set carefully. The provision authorizes employers to pay specially tailored wages to employees with disabilities only when the employer can demonstrate, through an exacting certification process, that the worker’s productivity is compromised by the disability. The certification requires a careful calculation of fair wages based on productivity and continuous re-evaluation of the employee’s capacities to ensure wages keep pace with skills. And of course the worker would also need to agree to the wage. Programs must be re-certified every two years by the Department of Labor, which has the duty to identify and remedy any abuse or exploitation it finds during its reviews. 

  • Most workers with disabilities, for example physical disabilities, are already in the competitive market. Retaining a 14(c) option does nothing to negate or undermine expansion of competitive employment for those capable of that option. Both work options can and should peacefully coexist to serve a dramatically diverse disability population. As Harris Capps, the father Matthew, who loves his job in a Ohio work center, asked, "Why do higher functioning disabled persons and their lobbying organizations want to deny lower functioning persons, the right to work? If a higher functioning individual is able to get a job providing a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them.”

Matt Capps at PERCO.JPG

Loves his job: Matthew Capps loves nothing more than to report for work. But the TCEA is putting his job, and thousands of others, at risk.

  • Not supported by data. Data from states that have closed their sheltered workshops do not necessarily demonstrate a correlated increase in competitive, minimum-wage employment. In Maine, two-thirds of former workshop participants are now unemployed. Those adults with I/DD who do have jobs work only an average of twelve hours a week, which is the lowest average in the country. In Washington state, more than 80% of those with severe cognitive impairments remain unemployed. Vermont reports fewer adults with I/DD in supported employment since closing its sheltered workshops in 2002. In short, when sheltered workshops close, participants often end up idle at home, lonely and unemployed, or if they work at all, with decreased job hours and decreased total wages. The other alternative — volunteer work in the community — can sometimes provide community, engagement and pride, but in reality, volunteering for commercial employers often suffers the same challenge as competitive employment: that option does not offer the support needed.

Every family affected by severe autism should know about the TCEA and oppose it in its current form. While federal policy should certainly promote opportunities for competitive employment when possible, guess what — our pizza can have both pepperoni and mushrooms. Let’s expand capacity for competitive wages using the planned federal grants, while also retaining vital options for our severely disabled loved ones.

As Opportunity Village’s Brown-May says, if 14(c) is phased out, “employment opportunities will go away for people with a very significant level of disability. They are the people who will get hurt.”

Jill Escher is President of the National Council on Severe Autism, President of Autism Society San Francisco Bay Area, and founder of the Escher Fund for Autism. She is the mother of two children disabled by nonverbal forms of autism.

See NCSA Position Statement on Vocational Options: ncsautism.org/vocational-options