This week marked the thirty-second anniversary of the Americans with Disabilities Act—or ADA, as it’s better known—the landmark civil rights law that promised equal opportunity and economic security for Americans with disabilities. As we’ve talked about a lot on this show over the years, as important as it is to celebrate how far we’ve come in the decades since the ADA became part of the fabric of American life, every time we hit the month of July, it’s even more important to acknowledge how far will still have to go to achieve the as-yet unfulfilled promises of the ADA.
And that’s why this July, Off-Kilter has been once again spending all month long having conversations with leaders from across the disability community.
To close out that series of conversations, this week we take a deep dive into one of the most egregious and discriminatory disability policies still on the books here in America—known as section 14(c) of the Fair Labor Standards Act. In a nutshell, 14(c) is an archaic loophole in federal wage and hour law that allows employers to pay disabled workers far less than the federal or state minimum wage just because of their disability.
So, as Off-Kilter closes out this series of July conversations for #ADA2022, Rebecca sat down with two dear friends and visionary leaders within the disability community working not just to tinker around the edges of a status quo, wherein disabled people are twice as likely to live in poverty as their nondisabled peers, but to imagine and build a society that recognizes and affirms the human rights and dignity of all disabled people. Together they took a look at the history of subminimum wages for people with disabilities in the United States and their role in devaluing disabled people’s labor and humanity; recent efforts to put 14(c) in the rearview mirror where it belongs; and the future of disability policy more broadly.
This week’s guests: Rebecca Cokley is the program officer for disability rights at the Ford Foundation, where she leads a portfolio she’s been visioning and creating from scratch as the first program officer to oversee a disability rights portfolio at any major U.S. foundation. Before that she was Rebecca Vallas’s partner in crime in co-founding the Disability Justice Initiative at the Center for American Progress—the first dedicated disability project at a U.S. think tank—as well as president of the National Council on Disability.
And Chai Feldblum currently serves as cice cChair of the Ability One Commission, the independent federal agency that oversees the AbilityOne Program, whose mission is to tap America’s underutilized workforce of individuals who are blind or have significant disabilities to deliver high quality, mission-essential products and services to federal agencies in quality employment opportunities. Chai is a former law professor at Georgetown University and formerly served as a commissioner at the Equal Employment Opportunity Commission for several years, nominated by President Obama.
For more on this week’s topics:
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REBECCA VALLAS (HOST): Welcome to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by The Century Foundation. I’m Rebecca Vallas. This week marked the thirty-second anniversary of the Americans with Disabilities Act, or ADA as its better known, the landmark civil rights law that promised equal opportunity and economic security for Americans with disabilities. As we’ve talked about a lot on this show over the years, as important as it is to celebrate how far we’ve come in the decades since the ADA became part of the fabric of American life, every time we hit the month of July, it’s even more important to acknowledge how far we still have to go to achieve the as-yet unfulfilled promises of the ADA. And that’s why this July, Off-Kilter has once again been spending all month long having conversations with leaders from across the disability community.
And to close out that series of conversations, this week, we take a deep dive into one of the most egregious and discriminatory disability policies still on the books here in America, known as 14(c) of the Fair Labor Standards Act. In a nutshell, 14(c) is an archaic loophole in federal wage an hour law that allows employers to pay disabled workers far less than the federal or state minimum wage, often pennies an hour for their labor just because of their disability. And to understand the history of sub-minimum wages for people with disabilities and their role in devaluing disabled people’s labor and humanity, as well as recent efforts to put 14(c) in the rearview mirror where it belongs, and the future of disability policy more broadly, as we close out this series of July conversations for #ADA2022, I sat down with two dear friends who have been, for a long time, not just leaders, but really, philosophers within the disco, as we lovingly call it, the disability community. Visionaries working not just to tinker around the edges of a status quo wherein disabled people are twice as likely to live in poverty as their non-disabled peers, but to imagine and build a society that recognizes and affirms the human rights and dignity of all disabled people in the U.S. in a way that requires the full implementation of the ADA, but which necessarily extends beyond the vision 32 years ago.
Rebecca Cokley is the program officer for disability rights at the Ford Foundation, a portfolio she’s been visioning and creating from scratch at Ford as the first program officer to oversee a disability rights portfolio at any major U.S. foundation. Before that, she was my partner in crime at co-founding the Disability Justice Initiative at the Center for American Progress, which just had its fourth birthday this week. Happy birthday, DJI! That was the first dedicated disability project at any U.S. think tank. And before that, Rebecca Cokley served as president of the National Council on Disability under President Obama. And Chai Feldblum currently serves as the vice chair of the AbilityOne Commission. We’ll talk lots in this episode about what AbilityOne is and its tie to the sub-minimum wage. She’s also a former law professor at Georgetown University and formerly served as a commissioner at the Equal Employment Opportunity Commission, or EEOC, for several years, nominated by President Obama. We recorded this conversation on Tuesday of this week, which marked the day itself of the thirty-second anniversary of the ADA. Let’s take a listen. [upbeat music break]
Cokley, Chai, it is so good to speak with both of you. I was saying before we started to get rolling, and I’m gonna say it again ‘cause I really am feeling it in my bones, my only regret about getting to spend some of this morning with you both on the day of the anniversary of the ADA itself—today is actually the day; this is when we’re recording is actually on the 26th—my only regret is that we’re not doing it in person at Netroots Nation, which is the last time the three of us were together in physical space, all hanging out, recording for Off-Kilter. And that was years ago. It feels like a different life, but in some ways, this feels like the best way we could kick off this day.
CHAI FELDBLUM: I agree. This is Chai. And let me tell you, I would love for all of us to be hanging around again together at Netroots Nation. But boy, is it cool to be together today to talk about some of the stuff going on.
VALLAS: And we used to have a lot of fun, not just because we operated not only Radio Row, but also the bar that folks kept at Radio Row. [laughing] We also just nerdily would have a lot of fun getting to hang out, the three of us. Cokley, this is also a significant week to be talking and to be talking about the future of disability policy and where things go after we talk about the ADA in July as we often do. This is a really significant week for you and for some of your and my history as well, because this is the fourth birthday of CAP’s Disability Justice Initiative, which I kind of almost forget every year ‘cause I’m thinking more about the ADA than I am about our years at CAP until I see Twitter. And then, of course, there’s someone tweeting pictures of us looking very young and me looking very, very blonde. So, happy fourth birthday to CAP’s Disability Justice Initiative! You’re now at the Ford Foundation, as I mentioned up top. But I just wanted to say it’s a significant birthday, and it’s fun to get to spend some of this week with you as well for a lot of reasons, too.
REBECCA COKLEY: It really is. Happy ADA Day, and happy birthday to DJI. And shoutout to Mia Ives-Rublee, who’s now the director of the program. And continuing, I look at those photos just like you, where I’ll totally, it’ll slip my mind, and then I’ll see the photos pop up on the Internet. And what an exciting day. I always think about Tammy Duckworth saying, Senator Duckworth saying, “You have to embrace the suck.” I think that was the line of the DJI launch in terms of dealing with the advocacy work and continuing to sort of fight ableism. And yet again, it’s wonderful to be here with the two of you and continuing to noodle on where we are, where we need to be, and what’s next.
VALLAS: And I also wanna acknowledge, Cokes—and you’ve been on this show a number of times, so you’re someone who really doesn’t need any introduction when it comes to Off-Kilter’s listeners—but in a conversation that takes place on the anniversary of the ADA, you are actually the person who coined the term “the ADA generation.” We have a whole generation of folks who’ve grown up knowing the ADA as part of the fabric of American life. And I find that to be significant as you anchor this conversation around where we go from here, given the unfinished business that persists decades later.
So, I wanna turn it to Chai to sort of reintroduce herself to Off-Kilter’s listeners, because it has been years since you have been on the show, Chai. And you’ve been doing some really cool stuff. The last time we spoke with you, you were over at the EEOC, the Equal Employment Opportunity Commission. But I wanna turn to you the question that I usually start off these episodes with of asking how you come to this work. And you’re now at a place called AbilityOne, which people may or may not be familiar with. So, talk a little bit about how you come to this work. And as we are heading into a conversation that’s really going to start off with talking about the sub-minimum wage, I can’t think of a better time to be in conversation with you given some of what you’ve been up to over at AbilityOne.
FELDBLUM: Great. So, it really is something to think about having this conversation, recording this on the anniversary of the ADA thirty-two years ago, because that’s really where I got into disability rights. I’m a person with a hidden disability: anxiety disorder. I’m also a lesbian. And at the time of the ADA—1988, 1990—the AIDS epidemic was full blown, and discrimination against people with AIDS was intense. I was the lawyer for the ACLU AIDS Project, but I came together with the full disability community and basically served as the lawyer that drafted and negotiated the provisions of the ADA, then working with a huge number of advocates that helped get it passed. And I just love, love the term “ADA generation” because these are the folks who grew up with this law. So, that’s what I did from 1988 to 1990. And then I ended up spending about 20 years as a law professor where we had clients who were often disability organizations, and we were pushing to continue to advance disability rights. And then at the EEOC, I was a commissioner at the national agency, the government agency responsible for enforcing the ADA. So, I sort of saw, on the ground, some of the issues of discrimination.
But I think, as we’re gonna talk about, there are limits to what the ADA can do. That’s just inherently some limits in just a nondiscrimination law. And somehow, somehow to get out of poverty, to create economic self-sufficiency for people with disabilities, we have to figure out ways to leverage financial incentives to affirmatively hire people with disabilities. And that’s why I went to this commission called the AbilityOne Commission that has not a great history but incredible potential, by leveraging the power of government buying, government contracts to increase employment of people with significant disabilities. So, I went there—
VALLAS: I love that so much.
FELDBLUM: —to try to change. [laughs]
VALLAS: I love that so much, right? Going in eyes open with the intention to not just transform something but almost to sort of transmute it, right? I mean, it’s like you’re going in as a political alchemist, right, to start with lead and to come out potentially with silver or even gold. I love it.
I think that’s a great segue into talking about really our first issue for this conversation, our first topic. And we’re gonna start with you, Chai, and then, Cokes, we’re gonna bring you back in, in just a moment. In a lot of ways, as I was reflecting on what the right way to wrap up a series that has been running all July at the intersection of disability justice and lots of different issues that people often don’t think about as involving disability, as well as discussions with long COVID patients and patient advocates, and it’s been a kind of a long, circuitous series and one I’ve really enjoyed. But at the same time, we were never going to be able to even scratch the surface of what disability economic justice looks like in just five episodes and one month.
And so, in thinking about what were the topics we hadn’t gotten to that we really, really, really had to talk about before we could end this #ADA2022 series, it felt very important to me that we really spend some time talking about in 2022, we still have a sub-minimum wage for disabled people in this country on the books as something that is absolutely legal and which is the reality for thousands upon thousands of disabled workers in this country. And Chai, that brings us to some of what you were just really teeing up perfectly in talking about why you went to AbilityOne. Before we get into some of the exciting news from this past week in the form of a really big announcement from AbilityOne that you’ve really been engineering as part of that transmutation of what the commission is all about, it feels like the place to start and the place we have to start is with some of the history of how we got to having a sub-minimum wage for disabled people on the books in the U.S. as part of American labor law. And you are one of the people in this country who is deepest on that history. So, talk to us about what’s called 14(c) of the Fair Labor Standards Act.
FELDBLUM: Yep. So, interestingly enough, I think that the existence of this AbilityOne program, which wasn’t the name it had at the time, was intricately connected to the creation of 14(c). So, let’s think about this: 1938, FDR passes the Fair Labor Standards Act, incredibly progressive legislation, does various things, including for the first time, setting a federal minimum wage. And then in Section 14(c) of that law—which is why this is called Section 14(c) certificate—it says that if someone has a physical or mental impairment that reduces their employability, that is, reduces their ability to be productive, then the employer can pay them less than the minimum wage. And it was crafted, sold, developed as something that would help people with disabilities. Literally, the statute, the law says, “in order to enhance employment opportunities.” And that’s because they thought, well, if people with disabilities are gonna be less productive, how can an employer afford to keep them if they now have to pay this full minimum wage, right? So, that was the idea. We’ll make sure that employers can still keep you employed by letting them pay you less.
So, what were they thinking about? I think they were thinking about the thousands of sheltered workshops that existed at that point in time that were hiring either all people who were blind—there was some workshops like that—or people with significant intellectual/developmental disabilities. And the same day that FDR signed the Fair Labor Standards Act, he signed this bill called the Wagner-O’Day Act that said that certain federal contracts would go only to non-profit organizations that were hiring blind people. And the idea was blind people couldn’t get jobs, of course, anywhere in the general economy. So, the only way to create jobs for them was to have some federal contracts like for brooms and mops go only to them. And I think they had those workshops in mind when they passed 14(c) because they assumed, of course, these people can’t work as quickly as others, so we shouldn’t have to pay them as much.
Now, fast forward to today. What’s happened? That program, which is now called AbilityOne, has $4 billion in federal contracts going through it: 40,000 people who are blind or have significant disabilities working. As of this point, almost none of them are on sub-minimum wages. When we did this regulation, 1200 employees out of the 40,000 where actually gonna get moved out of truly sub-minimum wages because there’s been enough pressure to change it. But as a message point having now what happened last week, which is the AbilityOne Commission saying no one, no employee who’s getting federal grants, federal contracts, taxpayer money can use a 14(c) certificate to pay someone sub-minimum wage. But let’s be clear, that’s just those folks getting these government contracts. And there are lots of people still out there getting paid sub-minimum wages because, as you said, 14(c) still exists in the law. We actually don’t have good data on how many people those are. But from my perspective, any number above one is too much.
VALLAS: Well, and with that as some of the history, and I think expertly condensed, because we could probably spend an entire hour episode just talking about even the history of how we got there. I mean, there’s a cynical piece of this, right? I mean, just to kind of be, to call a spade a spade, where we’re talking about people with disabilities being understood and viewed as a source of cheap labor and an interest in protecting that, right? And that being one of the, at least one of the underpinnings of this policy, which still persists, is still on the books in 2022.
But to put in context this rule that came out last week from AbilityOne, it sends a loud message. You’re using that kind of bullhorn over there saying no one getting federal contracts can actually pay people sub-minimum wage. So, even if the number of people directly impacted by that change is not huge because of, as you were describing, already a decline in the share of workers who are being paid sub-minimum wages, which is what we want to see, the message is still really significant, and particularly coming from an agency that has the history you were describing that’s tied up in the existence of that archaic loophole in federal labor law that has allowed employers to pay people less than the full minimum wage just because they are disabled. That being said, you are underscoring, and that is really, I think, an important takeaway as we mark and celebrate incremental progress like the release of that rule, there needs to be discussion of what comes next, right?
And of course, what needs to come next is the phasing out of 14(c), ending of 14(c), something that disability advocates have been really ringing the alarm bells about for quite some time. Cokley, I don’t know if that’s where you wanna hop back in because part of what’s been a step, at least, in the right direction is seeing progressive advocates and economic stakeholders and presidential candidates, for example, understanding, and members of Congress understanding that if we’re talking about raising the federal minimum wage, for example, we also have to be bringing disabled workers along as part of that.
COKLEY: Definitely. And this is Cokley. It feeds into the conversation even about the ADA generation, because I think a lot of times people often just think about it as people with disabilities who grew up at the nexus of the Individuals with Disabilities Education Act and the ADA. But it’s also the people without disabilities that were their peers, their siblings, their loved ones. And given that we are seeing this increase in members of Congress that went to school with people with disabilities, that have siblings with disabilities, that are on their own path to self-identifying as people with disabilities, the expectations have shifted. No longer is the eight Fs of disability employment—food, fill, fetching, filing, flowers, folding, festive, or friendly—acceptable. People with disabilities want the same job opportunities, have the same career and life expectations and aspirations as people without disabilities. And society is somewhat slowly waking up to the fact that this is incredibly unjust. The fact that disabled people have lived in a state and are forced to live in a state of codified poverty where they can’t make the, they do not have the same freedoms to make a lot of the same choices that non-disabled people have. And things need to change. It’s beyond time.
VALLAS: So, and continuing the conversation there, right? And it’s really important to say, as we’re talking about the sub-minimum wage, obviously there are larger issues here. We’ve been talking about that to some extent throughout this series in July on Off-Kilter, and we’ve talked about it at other times as well. I’ll actually plug a couple of episodes right around March and April of this year, around the time of the launch of the Disability Economic Justice Collaborative, when we actually spent a lot of time digging into some of the facts and figures. But it is really important to acknowledge the sub-minimum wage is just part of the picture. One of the statistics that is a lot less well known than, say, the gender wage gap is something called the disability wage gap, right? And Cokley, you and I were actually talking years ago about how that wasn’t something that was getting talked about in economic spaces, and it was something we needed to commission and be able to put out ourselves. Well, we now know that disabled people are paid on average $0.76 compared to the dollar paid on average to a non-disabled worker, right? That is the disability wage gap. But it’s actually worth being really clear that doesn’t even take into account sub-minimum wages, right? That’s actually the picture for folks who are working in competitive employment, right? So, there’s a kind of a big, multilayered picture here that describes the economic crisis facing the American disability community more than 32 years after the ADA. It’s also really important to note that folks who are disabled and people of color living at the intersection of ableism and racism end up actually facing some of the greatest disparities, right? And so, end up being paid even starker wage gaps than we see just in terms of those overall stats.
But I wanna zoom out just a little bit from the sub-minimum wage and talk at kind of a higher level here, given that the two of you are both, in some ways, two of the philosophers, I think it’s fair to call you, of the disco of the disability community. And Chai, turning back to you, a big part of what underlies, one might call it, a permanent recession that faces the American disability community is persistent discrimination by employers. And that is something that continues to persist despite the ADA. That’s one of those kind of myths out there that we ended discrimination against disabled people because the ADA exists. Before AbilityOne, you were over at the EEOC, as I mentioned up top. And so, in that time, you kind of had a front row seat for the influx of complaints that come in on the basis of the ADA that make up, if I’m right on the numbers, something like half of the incoming that the EEOC gets. So, I’d love to hear you talk a little bit about what it is that you saw when you were there. And I ask this question in the context of what might you say to someone who says like, “Hey, you know, it’s been 32 years since the ADA became law. So, what do you mean there’s still discrimination against disabled people?” Obviously, I’m asking that with a little bit of snark in my voice, but I do love to throw up a good strawman to take down.
FELDBLUM: [laughs] Of course! So, let’s separate out two things. The ADA prohibits discrimination against people with a huge range of medical conditions, including those that are non-manifest. So, the ADA has been very helpful for those people with hidden psychiatric disabilities—anxiety disorder, depression, etc.—or various medical conditions that rise to the level of a disability under the law but cannot be seen. Because under the ADA, an employer can no longer ask someone to list out their health conditions, right? So, they can get in the door. And if once they’re in the door, if they need some accommodation, then they can ask for it. And that’s more apparent if an employee says no. It’s very hard to prove discrimination when you are applying for a job, you use a wheelchair, you’re a little person, you are blind, you are Deaf, all disabilities under the ADA. But you cannot stop what’s in the mind of that hiring manager who is just thinking, “You are gonna be too much trouble. Well, I don’t believe you can do the job.” It’s just hard to prove that state of mind. And so, people with manifest disabilities just keep not getting the job and not getting the job. And that’s why the disability statistics we have are of people with more manifest disabilities, more significant disabilities. And that’s what shows us the unemployment rate, the incredible unemployment rate of people with disabilities as compared to people without disabilities. And simply a nondiscrimination law is not going to move the needle, I don’t believe. And that’s what the data shows.
So, the thing is, you don’t give up when that’s the case. You look for what else can be done. And that’s why I think it’s important to focus on these two other types of laws. One is an affirmative action law. We have affirmative action the federal contractors are supposed to use in federal agencies in hiring people with disabilities, and under the law, you can take disability directly into account in a way that it’s harder to do with race or gender. You can say, “I’m going to hire three more people with disabilities.” So, that’s important. But again, there’s not necessarily much enforcement. So, where’s a leverage? So, to me, the leverage is creating a system where the employer actually wants to hire people with disabilities.
So, I love your alchemist analogy, but I wanna just modify it somewhat because way before I and my fellow citizen members joined the commission a year ago, that alchemy was happening in the program. You don’t get $4 billion of contracts in relatively sophisticated work without having some very good jobs. And let me tell you, people with disabilities in those jobs were making a lot more than in other places, and they were getting hired. Now, the program has a problem because it requires too many people with disabilities in each of those workplaces! And we wanna change that. That’s up to Congress. But it’s at least a setting where people with disabilities have a preferential treatment. There’s a reason for the employer to hire them. That’s the alchemy, right? And there were a bunch of people who were doing this work way before I and my fellow citizen members came. The thing is, we have to figure out a way to do that in a way that works and is not segregated.
VALLAS: I love that. I love that. And I’m gonna come back to a couple of those themes, but I wanna acknowledge as we talk about the ADA, there often is, in the moment of marking the anniversary, there often is a tone of somewhat taking it for granted, as though the gains that disabled people have made in this country, which are considerable and need to be acknowledged even as we talk about how far we still have to go, as though those gains have been made and therefore could never be erased. We’ve made that progress, and there’s no way the pendulum could possibly swing backward. At the same time, and obviously, I’m saying that it sounds somewhat ridiculous on its face in the context of larger major pendulum shifts going on within social policy, such as the reversal of Roe versus Wade. So, hopefully, listeners are listening and going, “Actually, that isn’t how policy works, and we’ve been learning that lately.” But I say that as just an acknowledgment of often the tone of how ADA anniversary conversations happen.
And at the same time—and this is part of where, Cokley, I wanna go to you next on this—at the same time, the ADA itself, even imperfect as it is for all the reasons that you were starting to speak to, Chai, even inadequate as its enforcement is—and there’s more we could and should get to on that—at the same time, the ADA itself has actually been at risk of rollback in recent years and in a way that has been actually somewhat bipartisan. We have seen Republicans as well as Democrats subject to the kinds of myth-based, and at some points actually, propaganda-based arguments for rolling back key elements of the ADA. Cokes, talk a little bit about what some of the threats are there, and frankly, how worried we should be, given that we obviously don’t wanna be taking steps backwards when we’re already having a conversation about unfinished business 32 years after the ADA became law. What are the threats to the ADA, how real are they, and what are they based on? This was something you and I had to do some real engagement on years ago, but has not quite gone away, even if it’s under the surface.
COKLEY: You know, Vallas, it’s funny because with it being July 26, and my youngest child is home from camp today. And I always think about how the day he was born, back in February of 2018, we saw the House pass H.R. 620, which was the ADA Education and Notification Act, or sorry, ADA Education and Reform Act. They don’t actually put “notification” into the title. I forgot we’re still in the Paul Ryan-ification of legislative language, like when they decided to call work requirements “workforce development.”
VALLAS: Workforce development.
COKLEY: Remember that?
VALLAS: Yep. I knew you were gonna go there. Yep. Oh, good times.
COKLEY: You know. And this year, we’ve seen the House introduce H.R. 77, which is the ADA Compliance for Customer Entry to Stores and Services Act. Vallas, they called that the “Access Act.” Really? Sponsored by Representative Ken Calvert from California. It’s been referred to the House Judiciary Committee, where Jerry Nadler has promised not to move the bill. Right now, there are two co-sponsors, both of them Republicans. But it’s legislation like this—let me take a moment to give a sarcastic thank you to Anderson Cooper—that come about largely because of this myth that the ADA isn’t needed, ADA enforcement isn’t needed, and people with disabilities have nothing to do all day but go around and walk into, you know, they frame it as minority-owned small businesses and threaten to sue over the ADA. And I think there’s a couple of points that need to be clarified.
A, if a business has been out of compliance for 32 years, it’s had more than enough time to get into compliance. And b, while these pieces of legislation are often framed as helping small business, the reality is, is that the muscle behind it is predominantly the Hotel and Restaurant Lobbying Association. It’s not the coffee shop on the corner or the co-op bookstore in your hometown. It is Hyatt. It is Hilton. It is major chain restaurants that don’t want to comply with civil rights law, and they don’t want to see people with disabilities in their facilities. And these are very real threats. These threats come up every legislative session, and it’s exhausting. Why are we still having to fight for our basic level of civil rights access?
I mean, let’s also be real, and Chai pointed this out, the ADA is not the ceiling. The ADA is the floor. I mean, we still live in a time and day where 60 to 80 percent of polling places still have one or more impediment to disabled people accessing their fundamental right to democracy, their fundamental right to vote. And there is still so much more to do. But the fact that we’re litigating the baseline is frankly exhausting and also just indicative of what an ableist society we continue to live in. I mean, we sit and we watch companies like Uber and Lyft say, “Oh, we’re not a transportation company, we’re an app.” I’m sorry. You have an engine, four wheels, and a steering wheel. You look like a damn car to me! I shouldn’t have to argue that you’re an app when the reality is, is you’re moving a vehicle. But yet, these are the kind of things that we continue to see major multibillion dollar corporations do to continue to refuse to comply with the law.
VALLAS: I love how you put it: “We are still litigating the baseline,” and that indeed is what efforts to roll back the ADA, whatever kind of clothes they wanna be dressed up in, are all about. Cokes, I’m gonna stay with you for a moment. We’ve been hitting on a number of different kind of hot topics. And in addition to the AbilityOne rule from last week, there have been kind of a spate of other little, incremental but significant policy announcements from the Biden administration this month that might deserve a mention. I’m gonna sort of leave it up to you which ones you think are significant enough to put on folks’ radar. Again, I wanna be clear, we’re not talking about stuff that is like the end all, be all, oh my god, the moment we’ve been waiting for when it comes to disability economic justice achievements. But there actually have been some steps forward in key areas, whether education, housing, transportation, especially air travel. So, not sure what it is you wanna hit on, but just as we share some of the maybe the good, the bad, and the ugly of the moment we find ourselves in, what’s some of the good?
COKLEY: I’ve been really excited and heartened by the work I’m seeing out of the Office of Civil Rights of the Department of Education under the leadership of Assistant Secretary Catherine Lhamon, who is just completely amazing. And watching her take on the department’s intent to strengthen and protect the rights for students with disabilities by amending Section 504 regulations is a long time coming. Most folks tend to think of the ADA and 504 as the same thing. But the ADA is the federal anti-discrimination protections, in this case for people with disabilities, and most notably captured by the Netflix documentary Crip Camp and DREDF’s documentary that is available on YouTube. And this is so critically important. People just think of students with disabilities as only having individualized education plans or IEPs. But for students that have a physical disability or have a need to adjust the physical requirement to be able to access school and also for students in college and whatnot, it falls under Section 504. And so, it really is important now more than ever to take an opportunity to amend these regs, especially in light of the coronavirus pandemic and its impact on how our students are learning and how our students access facilities. So, I think this is a particularly really big deal, and there’s a lot of opportunity for some real positive change. So, I really wanna encourage people to submit comments to the open comment period for that.
You brought up the creation of a disabled travelers Bill of Rights for air travel. Let’s be real. I’m gonna be real for a second, and I feel like with the two of you, I can. This is all stuff that’s been out there before. And I’m excited to see Secretary Buttigieg really own this topic. I know it’s something that is actually near and dear to his heart, given that one of his senior campaign advance associates, who’s currently at the White House, Emily Voorde, was a person who used a wheelchair. And they actually, in many ways, ended up having one of the most accessible campaigns out there because of Emily’s leadership. And I don’t wanna cast that aside, but these are rights that disabled people already have, and what we really want from the Department of Transportation, what disabled people desperately need is a private right of action.
We sit and watch the data every year telling us of the thousands of wheelchairs and scooters and other adaptive equipment that is lost, destroyed, given to the wrong person, and they go and drink margaritas and crash a $200,000 wheelchair into a wall. True story. And all that people with disabilities can do is file a complaint and wait for the airline’s contractor to fix their equipment or replace their equipment. People with disabilities lose. You lose work time. You lose time getting paid. You lose access to your children if you share custody with another parent. There are so many ways that this impacts people with disabilities that go beyond what non-disabled people would consider, like the loss of a suitcase. And we really actually need greater enforcement, which means a private right of action and the ability to sue the airlines for damages for this. It’s beyond time.
We saw mental health care come up again this year yet again in the conversation of gun violence. Can we please disconnect those two? Why is it we only ever talk about reforming and buttressing our ailing mental health system when white supremacists commit mass shootings? It’s exhausting. We need comprehensive mental health care, and I’m eager to see hopefully more come out of HHS on that. And I’m continually excited to see HUD, actually. HUD’s going through their 504 refresh as well around their regulations. But also, we actually saw a case this year where HUD charged a landlord with violating the Fair Housing Act by refusing to rent to a family that had a child with a disability. And this happens all of the time. And there’s so much work that needs to be done on our housing infrastructure as it relates to accessibility that I’m really hoping it’s just the beginning. But there is, as we’ve said, so much more that’s needed.
VALLAS: HUD being, of course, the Department of Housing and Urban Development. Yeah, there’s a lot that you mentioned that is exciting, that should be celebrated. I also really appreciate you keeping it real on what it’s like to deal with the airlines when, especially if you’re a person who uses some kind of a chair. Is the hashtag that we used to use, #FlyingWhileDisabled, is that’s something folks still use that we should push people to?
COKLEY: So, it’s split between #FlyingWhileDisabled and #UnfriendlySkies—
VALLAS: There you go, so. [laughs]
COKLEY: —are the two that I tend to see. Yeah. So, if you happen to be traveling right now during July, and you land at your location but your wheelchair doesn’t, feel free to light it up on Twitter using #UnfriendlySkies or #FlyingWhileDisabled to alert the community to what you’re dealing with.
VALLAS: And if you happen to be someone we lovingly refer to as “an abled,” and you’re curious to know more about what it’s like to fly while disabled, and particularly if you use a chair, those are hashtags where you can learn a tremendous amount. And I will say for anyone who’s cursing the airlines, trying to get around this summer and thinking that they’re already having a really hard time as it is, check out those hashtags. Trust me, it could be a lot worse for you if you’re not traveling with a chair.
Chai, I wanna turn next to you to kind of be our resident lawyer again. I mean, I’m also a recovering lawyer, but you are way more of a lawyer these days than I am. So, I wanna sort of tap you again as our disco lawyer to talk a little bit about the significance of the ADA being a rights-based framework. And as I ask that question, I got to spend some time digging into some of your recent brilliance in a lecture that you delivered at Yale University that you shared with me in prep for this episode, which reminded me of some of how you have often talked about these issues and some of what I’ve most loved hearing you talk about these issues. You often actually quote a mutual friend of all of ours named Bob Williams, who spent a long time in the federal government. He had in his signature block for a really, really long time, “True individual freedom cannot exist without economic security and independence.” And you note, and you actually quote that in your Yale lecture, which reminded me of his having had that in his signature block, noting that that phrase actually comes from FDR’s State of the Union speech to Congress in 1944, a speech when FDR proclaimed the need for what he called at the time a second Bill of Rights. Talk a little bit about the significance of the ADA being a rights-based framework, not just as we think about how far we’ve come, but also as we think about where we’re trying to go in finally achieving what was the original and yet unfinished, undelivered intent of the law.
FELDBLUM: I think the thinking about the ADA as a rights-based law is essential to understanding where we’ve come from as a disability movement and where we have to go, right? We all know that the focus on pity and charity that for so long characterized how society saw people with disabilities. And it was certainly an us versus them idea: they—the people with disabilities—who have to live horrible, terrible lives, and we have such pity for them. The ADA was completely different. The ADA was saying, “We have rights. We have the right to nondiscrimination, right? We have the right to get a job or rent a house or go into a restaurant or fly a plane.” You know, well, “we have the right to fly a plane also, but the right to fly inside a plane and not have our wheelchairs be lost.” Having that be seen as a rights approach is essential.
But given that, I wanna underscore what Becca just said about the importance of a private right of action, right? What that means is that an individual person can go into court to vindicate their right to nondiscrimination. That’s essential. Very important to also have federal agencies and state agencies there to advance the rights, but really essential to have an individual be able to go into court. And here’s something interesting, historically. When we were working on the ADA in 1988 to 1990, we already had two laws that prohibited discrimination based on disability. We had the Fair Housing Act of 1988, which is the first law that extended anti-discrimination protection for people with disabilities to the private sector, not to entities that got federal funds like Section 504. And that had a private right of action. There was also the Air Carrier Access Act that, as Becca said, prohibited discrimination, but it did not have a private right of action. So, when Congress passed the ADA, we didn’t include access to airlines in our public accommodations section, and what got lost was that private right of action. So, that is certainly unfinished business in terms of the airlines.
But we have to move, and we have moved to a large extent, from pity and charity to rights. But as I said before, people do not usually say out loud, “We’re discriminating against you because you’re a person with a disability.” And therefore, demonstrating the discrimination that you have to prove to vindicate your rights. So, that’s why ADA, as Becca said, well, Cokes, which I haven’t called you before that, Becca, but might turn to that [laughs]—
COKLEY: And I wanna jump in on what Chai just said ‘cause I think it’s really important. You brought up the fact, the continued need for enforcement. When I saw the previous administration dedicate billions of dollars to Space Force, I couldn’t help but think about conversations I’ve had with one of my favorite Hill staffers who I’ll let remain anonymous, who called me at 11:00 one night at home in D.C. and said, “I’ve got it: ADA Force.” And I was like, “Hell, yes!” And the response was, if society has this belief that disabled people have a secret agenda running around and fining and enforcing the ADA on businesses, why don’t we actually make it a reality? [laughs] And I dream of the day we have an ADA Force. I dream of a day that we have actual, tangible enforcement of the law. I mean, I think that there’s an assumption that as a disabled person, I mean, we often joke about the number of times that we’re told, “Well, just call the ADA,” like the ADA is a hotline where ninjas, like customer service accessibility ninjas, drop out of the sky.
VALLAS: I picture it a little bit more like Ghostbusters. It’s like, “Who you gonna call?” And it’s like, “The ADA!” But I guess we need the ADA Force. [laughs]
COKLEY: You know? And I mean, something like that would be groundbreaking, something like that, where there actually is tangible enforcement of the law instead of death by bureaucracy would be such a welcome change in a space like that.
VALLAS: So, while we’re in this place, right, of having a conversation about the way that things could be, the way that things should be, I wanna sort of just quickly pause and do a quick digression. It’s actually in keeping with our conversation, but it’s just a quick digression to say that—and I’m not alone in doing a lot of thinking in these terms, and I know both of you do. And it really infuses both of your careers—but being very aware these days, especially, of the fact that we’re, as some have put it, kind of in a battle of imaginations, right? Where we’ve got the status quo, of which is one people’s idea of maybe the world that they wanna live in. And then there are other people who think, “Well, maybe I can imagine a better world. Maybe if I imagine that better world, I can actually bring other people along with me and start to build it.” When you start to think about a moment like this, which is such a moment of transition, of feeling like so many things around us are burning all the time, right, and desperately trying, as many of us are, to sort of figure out how to navigate that kind of a moment from a public policy perspective—how do we make this moment into something—what I keep coming back to is that metaphor of a battle of imaginations.
And so, it is in that spirit of rather than wanting to continue to live in someone else’s imagination, right, the status quo, where we don’t have actual disability economic justice, where we just talk about the unfinished business of the ADA every July and then move on, and instead wishing to actually take responsibility for building the world that many of us have been trying to imagine for a long time, it’s in that spirit that the Disability Economic Justice Collaborative, which I have the pleasure of being involved with and getting off the ground actually in partnership with you, Rebecca Cokley, earlier this year, it’s in that spirit the Collaborative has been working towards something that I actually wanna just quickly take a digression and preview for our listeners. Because it fits so well in the scope of this conversation and is an effort to take steps forward towards building the world that we imagine we could live in if we didn’t accept the unacceptable status quo.
And towards that end, what the Collaborative has been building is something that we’re calling a disability economic justice policy framework. It’s something like potentially that second bill of rights, Chai, that you talk about, maybe not quite, but in that spirit. And so, I shared it with both of you before we started taping and wanted to just list some of the things that the groups who make up the Disability Economic Justice Collaborative have been imagining and are wishing to work together to imagine into reality.
That every disabled person can live free from discrimination, including discrimination based on multiply marginalized identities such as race, gender, sexual orientation and gender identity and religion; every disabled person has accessible, affordable, stable, safe, and quality housing, right? As I go through this list, a lot of the spirit here, of course, is wanting to know what will it look like when we get there, when we finally get to disability economic justice, right, and thinking about it in human terms? Every disabled person will have access to reliable and accessible transportation; every disabled person can live independently with dignity, access to support in the community, access to appropriate care at their direction; every disabled person will have access to the health care they need when they need it from the providers they wanna be served by, including primary health care, sexual and reproductive health care, dental care, mental health care, and telehealth; every disabled person will have access to adequate nutritious food; be provided a high-quality, equitable education in an inclusive educational setting from early childhood to post-secondary education, including an affordable higher education; can find and retain equitable employment—some of what we’ve been talking about the most in this episode—at competitive wages and in integrated settings, including access to self-employment and entrepreneurship opportunities; every disabled person will have direct pathways to obtain economic security through building wealth and savings, a more accessible public benefits system with a robust social safety net for all people in the U.S.; every disabled person will be treated equitably and fairly by the American legal system, including through civil, criminal, immigration, and family courts, as well as court fines and fees; can engage in civic participation by voting—Cokes, you brought this up before because of the inaccessibility of voting sites—and engaging in the democratic process with appropriate accommodations provided equitably and fairly; and every disabled person will be included in emergency and disaster planning and fully engaged in climate change and sustainability discussions to ensure accessible and inclusive solutions for the future of the U.S.
This is an imperfect and draft start at a vision that this group of groups has been imagining as the world we want to build. I wanna give both of you the opportunity to react, if you want to, to how this lands as we start to ask the question, what will it look like when we finally get to disability economic justice, so we know what to work backwards from and build?
FELDBLUM: So, I consider that the opposite of a digression, [laughs] right? What you just said is the underpinning of everything we have been talking about, right? And just to go back to Bob Williams’ quote from FDR’s State of the Union speech in 1944, “True individual freedom cannot exist without economic security and independence.” And what you have in that manifesto—and that’s what it is, and that’s the energy that it requires—is building out what that economic security and independence means. It’s not just not being discriminated against, although that is a foundation. It is getting access to the education and the housing and the employment and the health care that will create what FDR said in this second Bill of Rights, “A new basis of security and prosperity.” Now, a lot of good things came out of that effort from FDR, generally, for society. Just think about all the important government programs. But what we need now is that same type of focus specifically for people with disabilities in those areas that you have in that manifesto. That’s the vision.
And I have to say, ‘cause you started it with just reflecting on where we are as a society right now, what we’re seeing happening around us, I’ve always called myself an optimist. That’s how I’ve run my 40-year [chuckles] career on this. And an optimist, to me, never meant someone who just, you know, “Blah, blah, blah. Everything’s gonna be fine.” No. It’s not someone who knows what’s going on. An optimist is someone who has a really good sense of the reality on the ground and then thinks, okay, how do I still move forward? That’s what we have to do. And what you’ve laid out there is the roadmap. And we have to be clear of the realities on the ground, and based on those, craft the specific policies that’ll get us where you’ve just described we wanna go.
VALLAS: Cokes, I wanna bring you in there as well, both to react but also, this is a lot of how you think too. This is a lot of why you and I have done so much work together over the years, and it’s a lot of what you’re doing at the Ford Foundation. So, I don’t wanna put you entirely on the spot to talk just about the work that you’re doing at Ford as its first ever disability rights program officer. But talk a little bit about if you agree with Chai that that is at least a start at measuring where we are trying to get, how you see us getting there. And I ask that question at a time when polling tells us that just one in three disabled voters believe that leaders in Washington care about disabled people, something that perhaps is unsurprising when we think about the status quo.
COKLEY: I think this is, as you said, this is stuff that you and I have sort of noodled on for the last several years. And it really, in many ways, is the grounding for why when we developed our U.S. disability rights program strategy at the Ford Foundation, it was sort of a chicken and egg between do we make our primary focus economic justice, or do we make our primary focus building the field? Because we also need to have a field of advocates and experts who can drive the economic justice agenda that we really need. And it really came down to well, we need to do both at the same time. We need to build the ship while we’re sailing on it. And so, it has been really exciting because I think for so long— And I know the three of us have had this conversation where we’ve all sort of sat around and been like, “I really wish there was somebody doing X, but we don’t have the money to pay for it,” whether it be, I really wish we had real-time economists that could crunch solid data on disability before, Vallas, we enlisted our dear friend Dr. Kate over at UIC who crunches real-time numbers for us frequently. I wish we had—
VALLAS: And who is also part of the Collaborative as one of the resident research nerds who is so invaluable!
COKLEY: Exactly. Or I wish we had somebody doing more in-depth work about incarceration and disability. And we have Dr. Subini Annamma out at Stanford doing a tremendous study around Black women and girls that are incarcerated. And to be in a position now at Ford where the lack of funding is not the problem. Instead, it’s there’s just a need for more of it, you know. And for us, it really has been also just living by the Marian Wright Edelman phrasing of, “You can’t be what you can’t see.” And for so many people with disabilities, having real world examples of disabled people doing it, having exposure to mentors and professional development is not a reality for so many folks in our community. And so, last year we launched the Disabled Journalists Association run by the amazing Cara Reedy over at Storyline Partners. This year, we will be launching a national organization of doctors and health care professionals with disabilities, including individuals with long COVID. Because, frankly, through this pandemic, I am so sick of watching non-disabled people on television talking about the impact and talking about how horrible life with a disability is with no actual grounding in what our lives are like. And we really think that there is a significant need to help support people with disabilities and chronic illnesses who are in the medical profession now and create those supports to help them stay in it for the long term. We need to continue building up this field of organizations and what this next generation of people with disabilities are capable of achieving, so that folks can see it and can join and start to demand the kind of changes that you need.
I find myself always thinking about an AAPD intern from years ago who wanted to go to law school and got a full ride to Harvard and had to turn it down because he would not receive the same hours of home care in Massachusetts that he would get in Illinois. So, he ended up going Northwestern. It’s a good school. He had a great education there. But is it a full ride from Harvard Law with no student debt? No. And the fact that we continue to need to drive not just economic opportunity and policy change, but actually make the opportunities more just for folks with disabilities to be able to actually have the right to make choices for their lives. And I think the conversation around the Dobbs ruling is a key piece of it. And we were thrilled this last month to see the announcement of Brandeis endowing a lecture to Carrie Buck, who was the plaintiff in the Buck versus Bell case, who was a poor, disabled woman from a family of disabled women and who was involuntarily sterilized. And Justice Oliver Wendell Holmes made the comment that, “Three generations of imbeciles are more than enough.” And I thought that that was ancient history. And clearly, given our current context of the Supreme Court, it’s not.
And we’re going to continue needing to fight. So, figuring out where are the levers that we need to put support in to be able to drive and advocate for the kind of changes we need, not just now, but thinking about like what else could poss— I think we consistently feel like that disability rights is a dumpster on fire floating down a river that’s rushing. And that is the reality. Like, we’re bailing water out of the dumpster as fast as it’s coming in. And I think every social justice movement is feeling that way. But continuing to think of not just where do we wanna go, but what are the protections and things that we need to put in place to keep in place what’s been fought for and earned already?
VALLAS: And you mentioned the Buck versus Bell case. For folks who want a much deeper dive on that, we actually did a whole episode at the intersection of reproductive justice and disability justice earlier this month as part of Off-Kilter’s #ADA2022 series. So, you can find that in our episode archive, and we’ll also plug it in show notes. If it’s history you don’t know, it is worth going back and learning in this moment, as we reckon with the potential reality of a post-Roe world.
We’re gonna run out of time, which is breaking my heart into a million pieces because there is so much more that I would love to talk about with both of you. But I’m gonna give each of you the last 60-second closeout lightning round moment to sort of pull this conversation into a little bit of a wrapped up bow. And Chai, I’m gonna toss it to you, and then Cokes, you’re gonna get the last word. Chai, I mean, there’s lots of directions we could end this conversation in, but as we hear Cokley’s charge to us and really, I think, to us as folks who care about social justice and social change and equity and disability economic justice as part of that, but also, I hear her charge really to policymakers as well, is there anything you wanna leave us with, especially as we head into a moment of midterm elections, when obviously, people with disabilities are still really not being understood as a voting bloc that’s more than 60 million strong?
FELDBLUM: Well, I have to say, just spending an hour with the two of you and talking and strategizing, that’s energy. That’s energy. And the bottom line is this comes down to individuals, individuals taking up the mantle, doing the work. I think what we need is perseverance and passion. And if we have that and we direct that at the right people and we are personally engaged, I think we can do anything.
VALLAS: Cokes, the last 30 seconds are yours.
COKLEY: I was really excited to see legislation introduced by Senator Casey this week that would allow people with disabilities to run for local office. To me, having been on the receiving end of a number of members of the U.S. House of Representatives disclosing disabilities to me in the last couple of years as part of their solidarity, but also their expression of identity with this bigger movement, we know that there are more people with disabilities in office than we know about. But we also know that for many local offices, the stipend that you might get or the very small salary you may get will run you afoul of asset limits. And it really is hard to tell disabled people that they matter in our democracy when we make it harder for them to vote, and we make it impossible for them to run for office. And so, I am excited and eager for the day that I can cast my vote for any number of candidates with disabilities at the local or state level and at the federal level.
VALLAS: And I’m so grateful to both of you. This has been such a fun conversation. I can’t think of a better way to kick off the actual day of the ADA anniversary than spending so much of it with both of you. And I’m just really grateful to both of you for your friendship, but for your incredible leadership in this movement and for your partnership in this shared quest for disability economic justice. I love sharing an imagination space with both of you, because we’re all working to imagine a different world and then working to figure out how to build it in this reality we live in.
Chai Feldblum is vice chair of the AbilityOne Commission and also former commissioner of the EEOC, Equal Employment Opportunity Commission, among many other hats that she has worn in the civil rights fight over the years. And Rebecca Cokley is a program officer for disability rights at the Ford Foundation, also my co-founder and partner in crime in the Center for American Progress Disability Justice Initiative and former president of the National Council on Disability and much, much more as well. You can find out lots more about both of them and their work and lots of the things we’ve been talking about this week, as always, in show notes. And this is gonna wrap up our series for July on where we have come in the 32 years since the ADA and how far we still have to go. For a full set of all of the episodes that make up this series, check out TCF.org/Off-Kilter, and you can find all of the episodes we’ve been running with leaders across the disability rights and justice community in the U.S. Thanks to both of you. Just wish we were in person, but it’s been just such a total joy to spend time with you both virtually. [theme music returns]
FELDBLUM: Thank you!
COKLEY: Thank you.
VALLAS: And that does it for this week’s show. Off-Kilter is powered by The Century Foundation and produced by We Act Radio, with a special shoutout to executive producer Troy Miller and his merry band of farm animals, and the indefatigable Abby Grimshaw. Transcripts, which help us make the show accessible, are courtesy of Cheryl Green and her fabulous feline coworker. Find us every week on Apple Podcasts, Spotify, or wherever you get your pods. And if you like what we do here at Off-Kilter Enterprises, send us some love by hitting that subscribe button and rating and reviewing the show on Apple Podcasts to help other folks find the pod. Thanks again for listening and see you next week.