“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

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. https://droregon.org/two-year-anniversary-lane-v-kitzhaber/