Following the resignation of U.S. Secretary of Labor Alexander Acosta, President Donald Trump has nominated Eugene Scalia to serve as the next labor secretary. The U.S. Department of Labor (DOL) plays a pivotal role in the lives of Americans with disabilities. Responsible for the regulation of subminimum wage programs—commonly referred to as 14(c) programs—workplace safety and health regulation, and the overall creation of disability employment policy, Scalia could have a significant and likely disastrous effect on the disability community if confirmed.
Scalia’s legal career is a master class in dismantling worker protections for all, but he has seemed particularly prone to attacking workplace safety and the Americans with Disabilities Act (ADA). One in five working-age people has a disability, and Scalia’s confirmation would put the employment and economic rights of people with disabilities squarely on the chopping block.
Disabilities are often acquired in the workplace, and Scalia has demonstrated that he is no friend to workers at all—let alone those with disabilities. Worker injuries and illnesses total approximately 2.8 million per year, and workers are more likely to acquire disabilities as they age. Following the passage of the Occupational Safety and Health Act, “the rate of reported serious workplace injuries and illnesses has declined from 11 per 100 workers in 1972 to 3.6 per 100 workers in 2009.” It is in the best interests of workers that there be national standards for safety and health in the workplace; one only needs to look to historic tragedies such as the Triangle Shirtwaist Factory fire or conditions in the meatpacking industry to know this. Scalia’s record on ensuring workers’ health and safety is abysmal. He has been on the record stating that “the government does not have the sole-or even primary-role in furthering occupational safety and health or compliance with the employment laws.”
Scalia has consistently opposed measures to increase worker safety
Incremental improvements to safety and health provisions in the workplace have come with innovation in actual workplace structure, including technological advancements that increase worker safety. The development of ergonomics standards, for example, is seen as a means of helping make the workplace safer for all employees. In some cases, ergonomics make it easier for disabled workers to stay on the job. Specifically, they “provide standardized procedures and practices for measuring and reducing physical stress and mental fatigue from motion, vibration, shock, sounds.” Scalia has called ergonomics “quackery” and represented the U.S. Chamber of Commerce in the fight against an ergonomics rule which would have helped prevent injuries from unsafe health conditions in the workplace. If appointed to lead the DOL, Scalia would likely disinvest from technology that makes it easier for disabled workers to get jobs and keep them.
The ADA is approaching its 30th anniversary, and there’s almost no greater enemy of the law’s employment provision than Scalia. The ADA provides civil rights protections to workers with disabilities who may require a reasonable accommodation to fulfill the essential functions of their job. Examples of accommodations include specific software, the ability to telework, a step stool, or the use of a sign language interpreter; it depends on the type of disability an individual has.
After UPS Inc. failed to accommodate multiple disabled employees, claiming they were unable to fulfill all their job responsibilities, a lower court granted the employees the ability to sue as a class. In response, Scalia argued that disabled employees are ineligible to sue as a class, “as their resolution would require inquiries too individualized.” Scalia also refuted the validity of the plaintiffs’ diagnoses of herniated discs, post-traumatic stress disorder, and depression, among others. Although the workers won the ability to sue in a class-action suit, Scalia was able to get this certification overturned. With delight, Scalia was quoted saying that he “vacated the largest [ADA] class ever certified.”
The most egregious case in Scalia’s portfolio was his defense of Ford Motor Co. in a disability discrimination complaint where a woman with irritable bowel syndrome requested telework as a reasonable accommodation. Scalia’s brief for the appellant included that the plaintiff was offered alternatives, including changing her office location to be closer to a restroom—which she declined. The brief also included that, having rejected that proposal, the woman declined to consider in conjunction or separately steps such as “[wearing] Depends or [cleaning] herself up after any accidents.” Scalia and the company he represented thought it was more appropriate to have the employee be forced to soil herself among her colleagues than provide a reasonable accommodation of telework.
Scalia has yet to weigh in on the elimination of the subminimum wage, but based on his record, it’s doubtful that he would be supportive of its elimination. As it currently stands, it is legal to pay workers with disabilities less than the minimum wage through a loophole in the Fair Labor Standards Act. The most recent reauthorization of the Workforce Investment Opportunity Act charged the DOL with helping set the stage for the phasing out of subminimum wage programs. Young people were required to be provided youth transitions services, mentoring, and career-counseling services in advance of being referred to a sheltered workshop, or a segregated workplace where they could be paid less than the minimum wage. All other workers were to be provided annual self-determination, peer support, and other supports annually. Current bipartisan legislation, the Transformation to Competitive Employment Act, is designed to formally phase out these programs over six years. Scalia’s anti-worker stance—and ableist beliefs regarding disability rights laws—indicate that he is likely to side with the providers of subminimum wage programs.
Congress should reject Scalia’s nomination and demand that the White House nominate an individual who puts people before profit. The public may understandably have nomination fatigue after the seemingly endless number of inappropriate and unqualified individuals put up for key roles in the administration. But it is imperative that Americans not forget the decades that will have to be spent remedying agency-level attacks on U.S. democracy—and remember the people who will suffer most in the meantime.
About the author: Rebecca Cokley is the director of the Disability Justice Initiative at the Center for American Progress.
This article was published by the Center for American Progress.
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