For decades, persons with disabilities have been segregated in sheltered workshops, and paid far below minimum wage to do rote tasks like stuffing envelopes, sorting hangars, and sealing bags. Begun seventy years ago as a program of benign paternalism, sheltered workshops exploit employees with disabilities, deny them access to non-disabled peers, and fail to train them for competitive employment. Although persons with disabilities are capable of working in competitive employment, often through supported employment services, many remain segregated in the workshops. The Center has launched a new initiative that challenges sheltered workshops as a violation of the ADA's integration mandate.
Between 2009-2011, the Center conducted investigations in several states, researching how these states plan, administer, fund, and oversee their employment services system for persons with intellectual and developmental disabilities. The facts in Oregon were particularly egregious, both because the state had once been the national leader in supported employment, because it has closed all of its residential institutions, and because it still segregates thousands of persons with disabilities in sheltered workshops.
On January 25, 2012, the Center, together with the Oregon P&A and the firms of Miller Nash LLP and Perkins Coie LLP, filed the first class action in the nation that challenges sheltered workshops as a violation of the ADA's integration mandate. The case, Lane v. Kitzhaber, was filed on behalf of eight named plaintiffs who are stuck in sheltered workshops; who have spent years, and often decades in these segregated settings; who are qualified and prefer to work at real job in the community; and who are often paid less than a $1.00/hour for their labor in the workshops. The case is brought on behalf of thousands of similarly qualified persons with disabilities in Oregon's sheltered workshop system. The United Cerebral Palsy of Southwest Washington also is a plaintiff.
The lawsuit seeks an injunction to require the State of Oregon, and its Department of Human Services, to end the segregation of persons with intellectual and development disabilities and to assist them in obtaining integrated employment opportunities with supported employment services.
Documents filed in the Lane v. Kitzhaber case:
Plaintiffs' Opposition to Defendants' Motion to Dismiss
Plaintiffs' Memorandum in Support of Motion for Class Certification
Opinion and Order of the Court on Motion to Dismiss
DOJ's Statement of Interest in Support of Plaintiffs' Motion for Class Certification
Class Certification Decision
September 8, 2015
Landmark ADA Settlement Reached to Reform Oregon’s Employment Service System
Yesterday, the United States honored working Americans and their fight for equality. Today, the day after Labor Day, the Center for Pubic Representation marks a milestone in the fight for the civil rights of individuals with developmental and intellectual disabilities (I/DD) to work in real jobs and earn fair wages in integrated employment settings. In the first case in the Nation to apply the ADA's Integration mandate to employment programs, the State of Oregon agreed to significantly reduce the number of individuals with I/DD in segregated sheltered workshops and to expand its supported services that will allow persons with I/DD to work in competitive integrated employment. The historic Settlement Agreement requires Oregon to dramatically reform its employment service system and paves the way for thousands of individuals with I/DD in Oregon to work side by side with others in the community.
The class action case was filed in January 2012 and was scheduled for trial in December 2015. After the class was certified and the United States Department of Justice intervened, Oregon developed numerous executive and legislative initiatives as part of its Olmstead plan defense, including preventing new admissions to sheltered workshops and increasing funding for supported employment services. The Governor’s Executive Orders 15-01 and 13-04, the Oregon Department of Human Services’ (DHS) Integrated Employment Plan (Revised July 2015), Quality Assurance and Quality Improvement Plan, Employment First Communication, Outreach, and Awareness Plan, Training and Capacity Plan, and Provider Transformation Grant Program together represent a commitment by the State to reform its employment service system for individuals with I/DD. The proposed Settlement Agreement builds upon these plans and commitments, and incorporates many of their provisions. In effect, the voluntary activities that Oregon incorporated in its Olmstead plan have become mandatory obligations in the Settlement Agreement.
The case was actively litigated by CPR, Disability Rights Oregon, Miller Nash Graham & Dunn and Perkins Coie and the United States Department of Justice. The federal court will conduct a fairness hearing in the next few months. DOJ has issued a Fact Sheet describing the case.
Parties’ Exchange Over Thirty Expert Reports
In the first litigated ADA Title II case involving unnecessary segregation in sheltered workshops, the plaintiffs and the United States recently submitted initial and rebuttal reports from twenty-four experts, while the State produced initial and rebuttal reports from eight retained experts and eight state officials. The plaintiffs’ reports covered a broad range of issues, including:
David Mank: Systemic Overview of Supported Employment and DD Service Systems
Lynnae Ruttledge: Systemic Overview of Supported Employment and VR Service Systems
Paul Wehman: Professional Literature on Supported Employment
Laura Owens: National Standards on Supported Employment
Rob Cimera: Cost of Supported Employment and Sheltered Workshops
Mary Morningstar: Transition Services for Youth in Oregon’s School System
Lyn Rucker: Expanding Supported Employment Does Not Constitute a Fundamental Alteration
Andrew Houtenville: Supported Employment and the Oregon Economy
Richard Luecking: Supported Employment Providers in Oregon
Ruby Moore: Capacity of Supported Employment Providers in Oregon
Lyn Rucker: Systemic Findings of Individuals in Sheltered Workshops
Ruby Moore: Systemic Findings of Individuals Allegedly Receiving Supported Employment
Tara Asai: Oregon Is Not Implementing its Employment First Policy
Debra McLean: Oregon Historically Has Failed to Expand Supported Employment
Paula Johnson: Oregon Has Failed to Provide Employment Opportunities for Youth in Transition
Ann Coffey: Oregon’s Recent Efforts to Expand Supported Employment Are Not Working
Jo-Ann Sowers: Oregon Does Not Have an Effectively Working Olmstead Plan
Judge Sanctions State of Oregon for Failing to Produce Electronic Discovery
After months of unsuccessful efforts to negotiate an agreement on the production of electronically-stored information (ESI), the Court ordered the defendants to implement a discovery protocol that searched the State’s servers and discrete mailboxes of approximately forty state official custodians for roughly seventy-five search terms. Over the two years, the State conducted five separate searches and produced five sets of ESI that allegedly incorporated all of the mandated terms and custodians. Only after fact discovery ended did the defendants reveal that they had omitted approximately 75% of the required terms, or an estimated 770,000 pages of ESI.
The plaintiffs and United States sought the appointment of a special master with expertise in ESI matters to investigate the causes of this glaring error, to determine if sanctions are appropriate, and to recommend remedial actions. The Court concluded that the appointment of a third party was unnecessary, but ordered extensive sanctions, including the production of all missing ESI within 45 days, significant additional discovery, the opportunity to supplement expert reports, and attorney’s fees for work related to addressing the missing ESI.
June, 2014: Court Denies Intervention in Oregon Sheltered Workgroup Case
On June 20, 2014, the District Court of Oregon issued a landmarkdecisiondenying intervention to seven families who wanted to join the Center's sheltered workshop case in Oregon, Lane v. Kitzhaber. The families claimed that the case would force persons with intellectual and developmental disabilities who are currently in sheltered workshops to work in integrated settings. The families wanted to end the ADA class action challenge to Oregon's segregated employment system. The judge refused. The court's decision finds that the families have no protected legal interest in remaining in sheltered workshops, that the lawsuit would not force them to accept integrated employment, and that their interests (if any) in this case are adequately represented by the plaintiffs and the United States, as well as the State of Oregon. The decision will allow the lawsuit to proceed to trial, as planned. It also will be helpful in other ADA cases where proponents of segregated services seek to undermine the enforcement of the ADA's integration mandate.
April, 2013: Oregon Executive Order: Empty Promises for People in Sheltered Workshops
On April 10, 2013, the Governor of Oregon issued an Executive Order on employment services for persons with intellectual and developmental disabilities. The Order comes just two weeks after the United States moved to intervene in a federal lawsuit, Lane v. Kitzhaber, that seeks to end the unnecessary segregation of persons with disabilities in sheltered workshops. While the Order is a tacit acknowledgement of the state’s failed promises over the past two decades and an effort to require coordinated activities between several state agencies, it does little to ensure that individuals with disabilities will ever be able to secure real jobs in the community or earn at least a minimum wage in an integrated employment setting.
Under the Executive Order, only 1/3 of all persons who are segregated in sheltered workshops will be provided employment services. This means that at least 1,600 individuals will have to remain in the workshops. And even for those who do receive employment services, there is no assurance that these services will be designed to enable them to ever leave the workshops, let alone to access real jobs in competitive employment settings. In fact, given Oregon’s past practice of counting individuals in sheltered workshop who receive even 1 hour a month of job counseling as getting “supported employment services”, it is quite possible that nine years from now, the order could result in no one leaving sheltered workshops.
The Executive Order includes no commitments about the quality, quantity, or outcomes of the employment services. Consequently, the Order is unlikely to lead to people with disabilities actually being able to access typical employment settings, integrated services, or real wages. The Order also fails to address the service needs of the overwhelming majority of individuals served by the State’s system. The Order provides for the administration of employment services to only approximately 1% of the total number of people with intellectual or developmental disabilities served by the State’s dayservice system.
Although the Order provides for “a significant reduction over time of state support of sheltered work,” it does so without any adequate or effective commitment to benchmarks, system outcomes, or re-allocating or re-distributing resources to provide individuals with disabilities access to employment services in integrated settings. In fact, the plan all but assures that the goals for delivering services to individuals in the community are advisory goals and not commitments.
The Order also considers group enclaves and mobile work crews to be “integrated employment settings,” even though people in such settings frequently do not interact with non-disabled individuals and often earn sub-minimum wages.
The goal of the Lane v. Kitzhaber class action suit, and the United States’ Complaint-in-Intervention, is to ensure that individuals that can and want to work in integrated employment settings have a meaningful opportunity to do so. The Executive Order does very little, if anything, to actually advance such integration. Very few, if any, individuals will experience a meaningful choice to work in an integrated setting as a result of the Order. Instead, it appears that a fraction of people in the employment service system will receive a modicum of employment services with no expectation that they will transition into real jobs in the community.
March, 2013: United States intervenes in Oregon ADA case
On March 27, 2013, the United States Department of Justice filed a motion to intervene in the Center’s pending class action lawsuit, Lane v. Kitzhaber, that challenges the segregation of persons with developmental disabilities in sheltered workshops in Oregon. The United States began investigating the State of Oregon’s employment service system for persons with developmental disabilities in October 2011. It issued a letter on June 29, 2012, concluding that the State was violating the Americans with Disabilities Act (ADA) and Rehabilitation Act. After months of negotiations to reach a settlement and avoid litigation, the United States determined that voluntary compliance was not possible and that resort to court was necessary.The complaint gives many examples of mistreatment of persons with developmental disabilities, such as a sheltered workshop in Oregon where 150 citizens with disabilities hand sort trash and clean garbage bins, with some earning only 44 cents an hour. This complaint makes clear that these deficiencies have persisted for decades, despite repeated reports and plans calling for action to reform the State’s employment service system. The United States found that the State of Oregon plans, structures, and administers its employment service system for developmental disabilities in a manner that perpetuates the segregation of individuals with developmental disabilities. The State’s system unduly relies on sheltered workshops rather than providing employment services in integrated settings, causing the unnecessary segregation of individuals who are capable of, and not opposed to, working in the community. The United States recommended that the State implement certain remedial measures, including the development of sufficient supported employment services to enable those individuals who are unnecessarily segregated, or at risk of unnecessary segregation, in sheltered workshops to receive services in individualized, integrated employment settings in the community.
August, 2012: Court Certifies Class in ADA Sheltered Workshop
The district court of Oregon has issued another landmark decision, certifying a class in Lane v. Kitzhaber. The court rejected the defendants’ primary argument that the Supreme Court’s recent decision in Wal-Mart v. Dukes dramatically changes the landscape for civil rights cases, and followed a long line of decisions that certified classes in ADA integration cases. It dismissed the state’s three arguments that ADA classes generally, and this one particularly, failed to satisfy the commonality, typicality, and single remedy requirements of Rule 23.
First, the court found that differences between individual plaintiffs with respect to their disabilities, their need for services, and their ability to work in competitive employment did not defeat commonality, because the Amended Complaint focused on the systemic deficiencies in the defendants’ planning, administration, and funding of their employment service system.
Second, the court determined that the injury suffered by the named plaintiffs was typical of that experienced by all class members, since they all were segregated in sheltered workshops, all were denied contact with non-disabled peers, all were qualified for supported employment, all wanted to work in real jobs. That some of the named plaintiffs were receiving very limited assistance to find a job was not determinative, since they all remained segregated in the workshops.
Finally, the Court found that the Amended Complaint described a systemic deficiency that could be remedied with a single injunction, without the need for individualized assessments and or separate orders. As a result, it concluded that the plaintiffs had satisfied each element of the class certification rule.
The case now will proceed through discovery and trial, unless settlement discussions resume in response to the Findings Letter from the Department of Justice. Read the decision on class certification.
June, 2012: DOJ Findings Oregon Is Violating the ADA By Relying on Sheltered Workshops
The United States Department of Justice has just issued the attached Findings Letter, concluding that the State of Oregon is violating Title II of the ADA by funding, structuring, and administering its employment services system in a manner that segregates persons with intellectual and developmental disabilities in sheltered workshops. This is the first time that DOJ has determined that segregated workshops constitute an ADA violation and that a state's employment service system must be modified to expand integrated employment opportunities. Read the related news article published in The Oregonian, July 2, 2012.
DOJ Supports Class Certification in Olmstead Case
The Department of Justice also submitted a legal memo supporting class certification in Lane v. Kitzhaber, the Center's lawsuit against the State of Oregon that challenges the segregation of persons with developmental disabilities in sheltered workshops.
May 29, 2012 - Plaintiffs File the First Amended Complaint in Oregon's Integrated Employment Case
Read the Amended Complaint.
On May 17, 2012, United States Magistrate Judge Janice M. Stewart issued a ruling in the case of Lane v. Kitzhaber. This case alleges that the state of Oregon is violating the Americans with Disabilities Act by not providing employment services to individuals with disabilities in the most integrated settings appropriate.
The defendants had filed a Motion to Dismiss the case, arguing that:
1. Employment claims cannot be made under Title II of the ADA;
2. The "integration mandate" of the ADA does not apply to employment services; and
3. The case improperly asks the state to provide employment to the plaintiffs and to provide a certain standard of care in the state's provision of employment services.
In her ruling, Judge Stewart held:
1. That "this case does not involve “employment,” but instead involves the state's provision (or failure to provide) “integrated employment ‘services’, including supported employment programs. " The State's Motion to Dismiss on this basis was denied.
2. The integration mandate of Olmstead applies to employment services. In making this determination, Judge Stewart gave deference to a recent US Department of Justice interpretation of the integration mandate that supports the Plaintiffs' position. She rejected the State's argument that the Plaintiffs must show that failure to provide supported employment services will result in their residential institutionalization. She also found that the lack of earlier court decisions on this legal issue does not weigh against its validity. In her decision, Judge Stewart held that "the broad language and remedial purposes of the ADA, the corresponding lack of any limiting language in either the ADA or the integration mandate itself, and the lack of any case law restricting the reach of the integration mandate suggest" that it applies to employment services. The State's Motion to Dismiss on this basis was denied.
3. Judge Stewart also held that some allegations in the complaint went beyond a request that Oregon "reallocate their available resources in a way that does not unjustifiably favor segregated employment in sheltered workshops at the expense of providing supported employment services to qualified individuals. Judge Stewart held that "[w]ording in the complaint that can be construed to "seek the forbidden remedy of requiring defendants to provide an adequate level of employment services to enable plaintiffs to obtain a competitive job" must be removed. For that reason, Judge Stewart granted the State's Motion to Dismiss Without Prejudice and With Leave to Amend, and allowed the Plaintiffs until May 29, 2012 to file an Amended Complaint.
The documents contained on this page and within this web site do not constitute legal advice. Anyone engaged in legal action should consult with an attorney. Attorneys should make their own independent judgments. Local laws vary and the law may have changed since these documents were written. Litigants should fully research any claims or defenses before making them.