Beyond Residential Segregation: the Application of Olmstead to Segregated Employment Settings

• Publication year: 2010

Georgia State University Law Review

Volume 26 . , „

t -jc ■ ™,n Article 12

Issue 3 Spring 2010

3-21-2012

Beyond Residential Segregation: The Application of Olmstead to SegregatedEmployment Settings

Susan Stefan

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Recommended Citation

Stefan, Susan (2009) "Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings," Georgia State University Law Review: Vol. 26: Iss. 3, Article 12. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/12

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BEYOND RESIDENTIAL SEGREGATION: THE APPLICATION OF OLMSTEAD TO SEGREGATED EMPLOYMENT SETTINGS

Susan Stefan*

Introduction

Several years ago, I was a client of Georgia Vocational Rehabilitation ... at [Atlanta Rehabilitation Center]. I was put in a sheltered workshop and asked to put a plastic cover on two bottles, eight hours a day, for three weeks to show my readiness to work. I balked and the counselor said, "Oh, so you don't really want to work. I had two other Ph.Ds who didn't want to work."¹

In the decade since the Supreme Court interpreted the scope of the Americans with Disabilities Act's (ADA) integration mandate in Olmstead v. L.C.,² litigation about integration has been brought primarily to ensure that institutionalized people with psychiatric and developmental disabilities can live in their own homes in community settings.³ Expansion of Olmstead beyond the gates of state institutions has focused for the most part on its application to other congregate settings such as nursing homes⁴ and, most recently, large

* This article would not have been possible without the outstanding work and assistance of Gwen Russell, Boston University Law School Class of 2011.1 am grateful for the vision and insights of Robert Pledl, the first attorney to challenge sheltered workshops under Olmstead. As usual, the legal analysis and impatient hectoring of Ira Burnim of the Bazelon Center for Mental Health Law improved my thinking, as did more gentle discussions with Jennifer Mathis, also of the Bazelon Center. Debates with Steven Schwartz, Bob Fleischner, Cathy Costanzo, and Pat Rea at the Center for Public Representation helped to sharpen the issues addressed here. None of the work that I do would be possible without the (flexible) support of my husband, Wes Daniels, and my best friend, Jamie Elmer. This article is dedicated to the memory of my mother, Gabrielle Stefan.

1. Interview with Kent Earnhardt, Sheltered Workshop Services Consumer (Oct. 24,2009).

2. Olmstead v. L.C, 527 U.S. 581 (1999).

3. E.g., Frederick L. v. Dep't of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005); Messier v. Southbury Training Sch., 562 F. Supp. 2d 294 (D. Conn. 2008); Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001); Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002).

4. See generally Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007) (denying motion to intervene); Rolland v. Celluci, 52 F. Supp. 2d 231 (D. Mass. 1999); Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N. Y. 2008).

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congregate settings that purport to be community-based but function as institutions.⁵ In addition, advocates have used Olmstead to challenge waiting lists and state Medicaid regulations or policies, including state budget cuts, which effectively force disabled citizens living in the community to move to institutions to get the medical services that they need.⁶

Litigation seeking to apply OlmsteacTs integration requirement to other contexts has been sparse. A few cases have been brought citing the ADA's integration mandate in areas such as voting,⁷ insurance coverage, reduction in services, communication issues, including interpreter services¹⁰ and facilitated communication,¹¹ and even

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interpretation of a contract.

Only one case has been brought directly challenging sheltered workshops as unnecessary segregation in employment services under the integration mandate, although Olmstead and the integration mandate have been raised in another case challenging sheltered workshops' exemptions from unemployment compensation.¹⁴

5. See generally Disability Advocates, Inc. v. Paterson (DAI I), 598 F. Supp. 2d 289 (E.D.N.Y.

2009) ; Disability Advocates, Inc. v. Paterson (DAI II), 653 F. Supp. 2d 184 (E.D.N.Y. 2009); Disability Advocates Inc. v. Paterson, No. 03-CV-3209, 2010 U.S.Dist. LEXIS 17949, at *22 (E.D.N.Y. Mar. 1,

2010) (DAI nn.

6. See generally Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615 (9th Cir. 2005); Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); Ball v. Rodgers, No. CV 00-67-TUC-EHC, 2009 U.S. Dist. LEXIS 45331 (D. Ariz. Apr. 24,2009); Brantley v. Maxwell-Jolly, No: C 09-3798 SBA 2009 U.S. Dist. LEXIS 91454 (N.D. Cal. Sept. 10, 2009); Makin ex rel. Russell v. Hawaii, 114 F. Supp. 2d 1017 (D. Haw. 1999); Masterman v. Goodno, Civ. No. 03-2939 (JRT/FLN), 2004 U.S. Dist. LEXIS 354 (D. Minn. Jan. 8, 2004); Crabtree v. Goetz, No. 3:08-0939, 2008 U.S. Dist. LEXIS 103097, at *64 (M.D. Term. Dec. 18, 2008).

7. Kerrigan v. Phil. Bd. of Elections, Civ. No. 07-687, 2008 U.S. Dist. LEXIS 62263 (E.D. Pa. Aug. 14,2008).

8. Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004).

9. Lincoln CERCPAC v. Health & Hosps. Corp., 147 F.3d 165 (2d Cir. 1998); Brantley v. Maxwell-Jolly, No: C 09-3798 SBA, 2009 U.S. Dist. LEXIS 19154 (N.D. Cal. Sept. 10, 2009); V.L. v. Wagner, No. C 09-04668 CW, 2009 U.S. Dist. LEXIS 99107 (N.D. Cal. Oct. 23, 2009); Criramins v. Fergus Falls Reg'l Treatment Ctr., Civ. File No. 02-3668 (PAM/RLE), 2003 U.S. Dist. LEXIS 1748 (D. Minn. Jan. 17, 2003).

10. Doe v. Sylvester, No. CIV. A. 99-891,2001 WL 1064810 (D. Del. Sept. 11,2001).

11. Hahn v. Linn County, Iowa, 191 F. Supp. 2d 1051 (N.D. Iowa 2002).

12. Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853 (7th Cir. 2007).

13. See Schwartz v. Jefferson County, No. 2004CV000091 (Jefferson County Cir. Ct. Feb. 24, 2004).

14. See Tyler v. Smith, 472 F. Supp. 2d 818 (M.D. La. 2006) (upholding exemption of sheltered workshops from unemployment compensation against ADA challenge); see also Okla. Goodwill Indus.,

2010] BEYOND RESIDENTIAL SEGREGATION 877

Yet sheltered workshops, also sometimes called "center-based work" or "facility-based work," are also segregated work environments often operated in conjunction with segregated facilities or day habilitation programs. They often pay sub-minimum wages and have been criticized for more than twenty years by courts, developmental disability professionals, and scholars as isolating and congregate dead-ends which rarely, if ever, result in meaningful transition into actual mainstream employment.¹⁵ Sometimes sheltered workshops give their employees make-work, such as folding and unfolding newspapers. When employees of sheltered workshops attempted to unionize forty years ago, the NLRB found that it did not even have jurisdiction since sheltered workshops' "essential purpose is to provide therapeutic assistance rather than employment."¹⁶

Inc. v. State ex rel Okla. Employment Sec. Comm'n, 219 P.3d 540 (Okla. 2009) (upholding exemption from unemployment taxes of sheltered workshop employees, regardless of where they work).

15. See Jacobus tenBroek, The Character and Function of Sheltered Workshops, blind american, May 1962, available at http://www.blind.net/g3800001.htm; Zana Marie Lutfiyya, Pat Rogan &

bonnie shoultz, ctr. on human pol'y, supported employment: A conceptual overview (1988), http://thechp.syr.edu/workovw.htm (citing critiques of sheltered workshops as early as 1976); see also Opportunities for Too Few? Oversight of Federal Employment Programs for Persons with Disabilities: Hearing Before S. Comm. on Health, Education, Labor, and Pensions, 109th Cong. 3 (2005) [hereinafter HELP Hearing}, Nat'L council on disability (formerly nat'l council on the handicapped), towards independence (1986) (criticizing sheltered workshops as noncompetitive and non-integrated work); James H. Omvig, More Progress in the Javits-Wagner-O'Day Program: Establishing Best Practices for a Quality Work Environment, braille monitor, June 2009, available at http://www.nib.org/documents/pressroom/2009/Braille MonitorArticle.doc (explaining that the President's Committee for Purchase from People Who Are Blind or Severely Disabled adopted in 2009 the statement that all AbilityOne [jwod program] workers should have "opportunities to do the work of their choice with appropriate supports and/or workplace flexibilities, alongside nondisabled employees ... [and] ongoing training opportunities that make employment with other community based businesses possible....").

16. Sheltered Workshops of San Diego, Inc., 126 N.L.R.B. 961 (1960). Later, the NLRB began taking a more nuanced approach, looking to whether sheltered workshop employees were in fact in a "typically industrial" rather than "primarily rehabilitative" setting. See Goodwill Indus, of S. Cat, 231 N.L.R.B. 536 (1977). In order to determine whether the setting was typically industrial, the Board looked to four factors: long term employment at the sheltered workshop (since that would detract from its alleged rehabilitative purpose), whether employees were disciplined in the same way as non-disabled employees, whether they had to comply with productivity standards, and whether the counseling they received was "limited." Id. at 536-37. Since 1977, the inquiry has been primarily fact-based, with both the NLRB and appellate courts finding some sheltered workshops to be "primarily rehabilitative" while others are "typical industrial settings." See, e.g., Davis Mem'l Goodwill Indus., Inc....