The Right to Self-Determination: Freedom from Involuntary Servitude (Employment)

“Involuntary servitude,” or “peonage,” occurs when a person is forced to work against his or her will, with little or no control over working conditions. This work might be paid or unpaid. The Thirteenth Amendment, prohibiting slavery and outlawing involuntary servitude, was passed in 1865, shortly before the end of the Civil War. Unfortunately, this protection was not extended to people with developmental disabilities until nearly a century after the passage of the 13th Amendment.

Involuntary Servitude and People with Developmental Disabilities

For centuries, people with developmental and physical disabilities were routinely placed in state-run institutions that housed thousands of residents. Because large numbers of residents were needed to keep institutions running efficiently, many residents were required to work within the institution in housekeeping, laundry and maintenance jobs or on institutional farms. Since the majority of this work was unpaid, this meant that the residents were working for the food, housing and clothing the state was legally obligated to provide. Sadly, this involuntary servitude perpetuated the institutional system that kept individuals with disabilities segregated from the community and at risk of abuse.

Most, if not all, of the training offered at these institutions centered on creating an unlimited, unpaid labor force that allowed the institutions to be self-sufficient. While this provided some residents with the skills needed to leave the institutions and work in the community, few were allowed to do so because people with developmental disabilities were not considered capable of living independently. Those who did work in the community were required to return to the institution at the end of each day. As a result, a good work record actually served to prolong a person’s time in an institution.

Residential institutions were the largest employer of people with disabilities for the majority of the 20th century. As F. Lewis Bartlett, a psychiatrist who worked extensively in state-run institutions during the 1960s, wrote: “State hospitals need ‘good patients’ who are useful, valuable and expediently indispensable. But these patients, instead of being helped…are doomed by the institutional needs of the state mental hospital.”[1]

By the 1960s, residential facilities were desperately under-financed and many staff salaries were at poverty level. One study estimated that 30% of staff positions in institutions were vacant. The cost of replacing unpaid or minimally paid resident labor with paid workers would be overwhelming.

A Minnesota study conducted in 1964 showed that there were 6,350 residents in the state’s institutions at the time; half of these individuals were assigned jobs in the institutions. At the time, Minnesota law stated that a person with a developmental disability could not earn more than $1 a month. The 1964 report estimated that replacing institutionalized resident workers with civil service employees would require more than 900 additional positions at a cost of $2.4 million.[2] This example of “involuntary servitude” eventually changed, in part because of the Arc Minnesota, Dr. David Vail, and Governor Karl Rolvaag all of whom decried the “institutional peonage” revealed in the study.

The issue of involuntary servitude was brought to national attention in July 1964 in an article for The Atlantic Monthly by F. Lewis Bartlett. The article, “Institutional Peonage: Our Exploitation of Mental Patients,” described how some patients were denied training and therapy so that they could perform the work needed to keep the institution running.[3]

The Federal Courts Intervene

Fair Labor Standards Act and Thirteenth Amendment Cases

Dozens of cases seeking to extend Thirteenth Amendment protections to people with developmental disabilities have been and continue to be filed in federal court. Institutional peonage became the focal point of several lawsuits challenging the institutional system in the United States, including many lawsuits filed in the late 1960s and early 1970s against states that forced people with developmental disabilities to work in the institutions where they were confined.

These challenges focused on the rights of resident-workers in institutional facilities and the lack of protections these workers had under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”), as well as violations of the Thirteenth Amendment. Because institutions needed the unpaid work of residents to survive, eliminating the practice would seriously threaten their existence.

Souder v. Brennan

One key case was Souder v. Brennan, 367 F. Supp. 808 (D.D.C. 1973) which established that the Fair Labor Standards Act (FLSA) protected patient-laborers in state institutions and required the U.S. Department of Labor to enforce its provisions and provide guidelines and policy directives for state institutions. The Fair Labor Standards Act was amended in 1966 to extend the minimum wage and overtime provisions to all nonprofessional employees of “hospitals, institutions and schools for the mentally handicapped.” 29 U.S.C. § 203(d), (r) and (s) The U.S. District Court for the District of Columbia found that these provisions also applied to working residents in institutions. The decision also required superintendents of state institutions required to keep records of patient-laborer activities and inform them of their rights under this decision.

The Department of Labor had argued that it was difficult to distinguish between work and work therapy or vocational training. In response, the Court noted:

Economic reality is the test of employment and the reality is that many of the patient workers perform work for which they are in no way compensated and from which the institution derives full economic benefit. So long as the institution derives any consequential benefit the economic reality test would indicate an employment relationship rather than mere therapeutic exercise.[4]

Other Challenges

In other states around the same time, such as Tennessee [Townsend v. Treadway, 1974 WL 1256 (M.D. Tenn. 1974) and Wisconsin [Weidenfeller v. Kidulis, 380 F. Supp. 445 (1974)], plaintiffs added Thirteenth Amendment claims to their FLSA claims. Though these arguments were not ultimately decided on their merits, the courts in these cases held that they had enough validity to survive summary judgment.

Wyatt v. Stickney and Due Process Arguments

Wyatt v. Stickney was a landmark case for deinstitutionalization, with far reaching implications for institutional peonage across the nation. The suit focused on institutions in Alabama. It was filed in October 1970 and took 33 years to work its way through the courts before litigation ended in 2003. Wyatt set minimum standards of care, established resident rights, fostered the downsizing of state institutions and eventually led to the development of new community services. This case is discussed in more detail here.

An April 12, 1972 order issued by U.S. District Court Judge Frank Johnson in the course of this case included a prohibition on unpaid work, on the principle that work was “dehumanizing” unless it was voluntary, therapeutic and compensated at FLSA wage rates. Judge Johnson did, however, permit residents to make their own beds. He also required all three of Alabama’s mental institutions to pay residents who volunteered to work to help maintain the institution.

The Section 14(c) Dilemma

Judge Donovan Frank

The FLSA sets a national minimum wage. However, Section 14(c) of the Act allows employers certified by the U.S. Department of Labor to compensate persons with disabilities for work being performed at a lower rate known as a “subminimum wage.”

According to the U.S. Department of Labor, Section 14(c) does not apply unless the disability actually impairs the worker’s earning or productive capacity for the work being performed. The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of sub minimum wages. According to a 2012 report by the National Council on Disability, approximately 420,000 Americans with disabilities are employed under these arrangements.

Many organizations, including the National Council on Disability, have called for abolition of Section 14(c), arguing that it is inconsistent with the Americans with Disabilities Act. Others argue that Section 14(c) plays a valuable role by providing opportunities to people with disabilities who might not otherwise be able to obtain employment that pays a competitive wage.

Challenges to Other Employment Arrangements

This same debate over the provision of low-wage work for people with developmental disabilities is being played out in other work environments supported by the Olmstead decision discussed here. For example, in January 2012, the United Cerebral Palsy Association of Oregon and Southwest Washington, along with eight individuals representing thousands of Oregonians with disabilities, filed a class action suit in U.S. District Court alleging that more than 2,300 Oregon citizens with disabilities are “stuck in long-term, dead-end, facility-based sheltered workshops that offer virtually no interaction with non-disabled peers.” Lane v. Kitzhaber , 841 F. Supp. 2d 1199 (D.Or. 2012).

The lawsuit argued that confining workers in segregated workshops violates Title II, §§12131-12134 of the ADA and §504 of the Rehabilitation Act of 1973. Fifteen months after the case was filed, the Governor of Oregon issued Executive Order 13-04 directing state agencies to take steps to achieve “integrated employment for individuals with intellectual and developmental disabilities, consistent with their abilities and choices…” However, the plaintiffs in the lawsuit were not satisfied with this step; trial is currently scheduled for July 2015.[5]

Involuntary Servitude by Private Individuals

Unfortunately, people with developmental disabilities can also be subjected to involuntary servitude by private individuals. One of the most infamous situations involved the Rosewood Center in Owings Mills, Maryland, a State hospital for people with developmental disabilities. During the years from 1911 to 1933, the local bar aggressively petitioned local courts to release young women from the hospital, into the custody of local families who exploited them as unpaid domestic help.

The United States Supreme Court dealt with this issue in its 1988 decision of U.S. v. Kozminski. In this case, the Court reviewed the criminal conviction of two farmers in in Michigan, who were convicted of violating a federal criminal statute prohibiting holding another person in “to involuntary servitude.” 18 U.S.C. §§ 241 & 1584.

The couple picked two men with developmental disabilities off of the streets and forced them to work on their farm seven days a week, often 17 hours a day, for minimal and eventually no pay. The men were isolated from the outside world, subjected to physical and verbal abuse, and threatened when they attempted to leave.

The Supreme Court overturned the convictions, concluding that the trial judge erred in instructing the jury that the statute’s definition of ‘involuntary servitude’ could include restraint by psychological coercion, rather than the use or threat of physical restraint or injury or the use of the legal process.

In reaction to that decision, Congress amended the federal criminal statute to include situations involving involuntary servitude by means threats of “serious harm”, including psychological coercion. [See 18 U.S.C. §1589].

What Happened Next?

Unfortunately, people with developmental disabilities continue to be subjected to involuntary servitude.

Involuntary Servitude Resources and References

Ripped from the Headlines

Henry’s Turkey Farm Atalissa, Iowa

From the Des Moines RegisterFebruary 7, 2009

State closes bunkhouse that housed mentally retarded workers

Federal police, state health inspectors and county prosecutors descended on this eastern Iowa town over the weekend, launching a major investigation into the care and treatment of a group of mentally retarded men and ordering an emergency evacuation of the men’s living quarters.Click to read more

The investigation focuses on Henry’s Turkey Service, a Texas-based company that for 34 years has employed dozens of mentally retarded men who work at the West Liberty Foods meat-processing plant in Muscatine County.

Late Saturday, the state fire marshal shut down the deteriorating building — known locally as “the bunkhouse” — that for decades has served as housing for Henry’s workers. State social workers moved the 21 occupants of the bunkhouse to a hotel where they were expected to spend the night.

Officials from the U.S. Department of Justice, which investigates allegations of civil rights violations against the disabled, were on the scene Saturday night, as were agents of the FBI.

J. Bennett, an Iowa Department of Inspections and Appeals administrator, was in the bunkhouse Saturday and described conditions as “deplorable.” Department spokesman David Werning said it appeared that the building, which is owned by the city of Atalissa, was heated solely by space heaters.

Since the late 1970s, Henry’s Turkey Service has been shipping mentally retarded men from Texas to Iowa to work in the West Liberty plant. Henry’s has acted as the workers’ employer, landlord and caregiver — paying the men a reduced wage for their work at the plant and then deducting from their pay the cost of room, board and care. Payroll records indicate the men are left with as little as $65 per month in salary.

“My God, this is an embarrassment to the state of Iowa,” said Sylvia Piper of Iowa Protection and Advocacy, a federally funded group that oversees services for the disabled. “This should not be happening in our state.”

Kenneth J. Henry, who runs Henry’s Turkey Service, declined to comment. “I’m not going to answer any of your questions,” he told The Des Moines Register on Friday.

Last Tuesday, The Register asked mental health advocates and state officials about Henry’s and the workers’ living conditions in Atalissa. On Friday, state health inspectors, abuse investigators, county prosecutors and police were at the bunkhouse. The investigation intensified on Saturday with additional involvement by federal agents.

Their investigation is focused primarily on the potential financial exploitation of the workers, all of whom are expected to lose their jobs in the next few weeks.

State officials say the 21 men who were at the bunkhouse Saturday have worked for Henry’s for at least 20 years. Keith Brown, 57, has lived there since 1979. His sister, Sherri Brown, said her brother has $80 in the bank after working 30 years for Henry’s.

Payroll records obtained by the Register show that in January Henry’s Turkey Service deducted $487 from Brown’s earnings to pay for his room and board. The company also deducted $572 for “kind care,” although the bunkhouse is an unregulated group home, not a facility that provides medical care or assistance.

Sherri Brown said she recently asked company officials where her brother’s wages and Social Security payments have gone and received only vague assurances that nothing was amiss.

“I’m angry,” she said. “I want to get some answers.”


Laurie Vasichek explains EEOC v. Henry’s Turkeys, a lawsuit from 2013; Men with intellectual disabilities faced harassment, substandard housing, and denied medical care.


In 2014, the New York Times published an extensive report about the Henry’s Turkey case.

From the New York Times, March 9, 2014.

The ‘Boys’ in the Bunkhouse: Toil, abuse and endurance in the heartland,


From The New York Times, December 6, 2014

Separated From Brother, Left to Toil Far Away From Home

NEWBERRY, S.C. — A shabby bunkhouse sits just beyond the shadows of this small city’s colossal Kraft meatpacking plant. Inside live a few older men with nowhere else to go, and several younger men who pay to throw down a mattress.

There is also Leon Jones.

Mr. Jones, 64, has an intellectual disability and a swollen right hand that aches from 40 years of hanging live turkeys on shackles that swing them to their slaughter. His wallet contains no photos or identification, as if, officially, he does not exist.

And yet he is more than just another anonymous grunt in a meat factory. Mr. Jones may be the last working member of the so-called Henry’s Boys — men recruited from Texas institutions decades ago to eviscerate turkeys, only to wind up living in virtual servitude, without many basic rights.Click to read more

This may sound familiar. In 2009, a sister of one of the men complained to The Des Moines Register about exploitation in a bunkhouse in Iowa, prompting investigations, reforms and a momentous court verdict concerning the workplace abuse of people with disabilities. This year, The New York Times published an examination of the case and its aftermath.

That seemed to be the end to an outrageous but isolated Iowa story: men abused, rescued and reintegrated into the community. But a few lingering clues suggested that at least one other Henry’s “boy” was out there: a Leon Jones, living beside a South Carolina turkey plant.

So, on a recent autumn morning, I knocked on the door of this bunkhouse, sitting beside a mobile home with its door open in abandonment, not welcome.

“Hi,” said Leon Jones.

Tall and with an easy smile, Mr. Jones has been working turkey ever since he left a state institution in 1969. For decades, he hung live birds from shackles; now he works an evening shift, sweeping up and disposing of turkeys that arrive by truck already dead. D.O.A.s., they are called.

He led me to the slapdash dormitory he shares with men who come and go. His small bed was in a corner, a few feet from a young man wearing a black-knit “Jesus” cap and watching Spanish-language television at a loud volume, and not far from a bathroom with open stalls and a wet floor.

Mr. Jones’s locker contained clothes, cowboy boots and a plastic envelope of old cards and letters, the last one from 1992. He also nodded to a small radio on a night stand.

“I got a radio and everything,” he said.

Mr. Jones may have his radio, but what he does not have are most amenities, any connection to government services for people with disabilities — and the company of another Henry’s “boy,” his older brother, Carl Wayne.

Carl Wayne Jones, 65, lives now in a suburban Iowa home with three other men and 24-hour staff supervision. Leon Jones has not seen him in decades because their Texas bosses decided long ago that Carl Wayne would work for a client in Iowa, while Leon would work for one here in South Carolina.


From The Columbus Dispatch, August 1, 2011

Far below minimum wage

Thousands of adults with Down syndrome, autism and other developmental disabilities work in Ohio at jobs that pay less money than a teen-age baby sitter earns.Click to read more

Some clean hotel rooms for 40 cents an hour. Others sew table linens for 79 cents an hour. Some assemble automotive parts for $2.15 an hour or answer telephones for $3.75 an hour.

The majority don’t earn half of the state minimum wage of $7.40.

A little-known provision in the 73-year-old federal wage law allows employers to pay less than minimum wage if adults have disabilities that limit their productivity.

The Fair Labor Standards Act once dictated how little was too little to pay a worker. But today, there is no floor, clearing the way for some to earn as little as a penny an hour.

The wage issue has divided the very community that seeks the highest quality of life for people with disabilities. The difference of opinion is stark:

“It’s immoral,” said Curtis L. Decker, executive director of the National Disability Rights Network.

“This has been a godsend,” said Ted Williams, whose autistic son earns a low wage at his job in Columbus.

The debate comes down to this: Critics say low wages show that disabled workers are being exploited, but supporters say the pay rates reflect opportunities – that even the most disabled Ohioans are being given a chance to pursue work and build full lives.

The issue gained national attention after authorities discovered abuses in 2009 at a turkey-processing plant in Iowa. Disabled adults were forced to work long hours for little pay and live in squalor. It’s an extreme case that most advocates say is an anomaly.

To assess the state of low-wage earners in Ohio, The Dispatch analyzed federal wage documents from 69 of the 70 counties that support workers with developmental disabilities through taxpayer-funded agencies and operate employment centers. Harrison County, in eastern Ohio, defied the state open-records laws and did not fully comply with the newspaper’s request.

At least 14,600 developmentally disabled Ohioans earn less than the minimum wage for the work they are doing. The number is likely much higher, but wage information is not public in 18 of Ohio’s 88 counties.

Statewide, there are about 21,000 disabled Ohioans who receive services through their counties and are employed. About 70 percent work in sheltered workshops, quasi-industrial settings that resemble factories.

The counties that run sheltered workshops bid on jobs with government agencies and private companies for contract work, such as assembling Christmas packages for prison inmates, bagging stuffed animals and inspecting baby-food jar lids.

Worker pay is based on productivity. A disabled worker who can perform a task at 30 percent the rate of a nondisabled worker would earn about a third of minimum wage – $2.22 an hour.

More than 80 percent of the low-wage work force earns an hourly wage of $3.70 or less.

More than 35 percent, or 5,200 workers, make less than $1 an hour.

Nearly 1,000 make less than a quarter an hour.


National Council on Disability


Aired on Rock Center with Brian Williams, June 21, 2013

Some workers at Goodwill paid as little as 22 cents an hour

Critics cry exploitation as a federal loophole allows companies to pay thousands of disabled workers across the country far less than the minimum wage.


From Journal of Health Law & Policy Vol. 9(1), 2015

The Health Care Workforce: How to Understand Accommodations

The article begins by noting the underrepresentation of people with disabilities in the American workforce. Further, despite the health care field representing 20% of the GDP and the field’s familiarity with disabilities and accommodations, it is not at the forefront of employing people with disabilities. (Added 5-12-16)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2770574


Videos and Multimedia Presentations

Parallels in Time: The Rise of the Institutions

Parallels in Time II: Real Work – The Development of Real Jobs in Typical Work Settings

With an Eye to the Past

Worcester State Hospital Occupational Therapy Booklet, 1933

Articles and Other Secondary Sources

Jihan Abbas, A Legacy of Exploitation: Intellectual Disability, Unpaid labor, and Disability Services. (2012)

Access to Justice: The Impact of Federal Courts on Disability Rights.” The Federal Lawyer, December 2012.

Peter E. Gelhaan, “Institutionalized Patient Workers and Their Right to Compensation in the Aftermath of National League of Cities v. Usery,(1981)

Paul R. Friedman, The Mentally Handicapped Citizen and Institutional Labor, 87 Harv. L. Rev. 567 (1974)

National Council on Disability Report on Subminimum Wage and Supported Employment (2012)

Gordon C. Zahn, Slaves or Patients, The Catholic Worker, October, 1946.


Involuntary Servitude Cases from the 1970s

Deborah Gifford (Oregon-2011): Out-of-Court Settlement

EEOC v. Henry’s Turkey Service

Wenigar v. Johnson

EEOC v. Walmart (Jamie Wells) (2013)

State of Connecticut v. Fourtin
Syllabus and Opinion (Supreme Court -CT 2012), 307 Conn. 186

Opinion (Appellate Court-CT 2009). 118 Conn.App. 43

Souder V. Brennan, 367 F. Supp. 808 (D.D.C. 1973)

Townsend V. Treadway, 1974 WL 1256 (M.D. Tenn. 1974)

Weidenfeller V. Kidulis380 F. Supp. 445 (1974)


  1. ^F. Lewis Bartlett, Institutional Peonage, Our Exploitation of Mental Patients, The Atlantic Monthly, July 1964.
  2. ^State of Minnesota, Department of Public Welfare, Medical Services Division, Report of the Medical Services Division’s Study Committee of Patient Work in Institutions for Mentally Retarded: A Study for Institution’s Needs for Patient Labor, February 1964.
  3. ^Bartlett, supra, at pp 116-118.
  4. ^Souder v. Brennan, 367 F.Supp. 808, 813 (D.D.C. 1973)
  5. ^Bob Joondeph, Two Year Anniversary of Lane v. Kitzhaber, Disability Rights Oregon, Jan. 23, 2014. http://www.droregon.org/the-dro-blog/one-year-anniversary-of-lane-v.-kitzhaber