Right before Christmas, the Department of Justice rescinded key protections for disabled workers.
DAVID M. PERRYJAN 3, 2018
On the Thursday afternoon before the Christmas holidays, Attorney General Jeff Sessions' Department of Justice rescinded 25 guidance documents that the department found "unnecessary, inconsistent with existing law, or otherwise improper." The list included 10 texts on disability rights, including one as recent as 2016 (i.e. hardly out of date). This recent document codified the labor rights of disabled people as they move from sheltered workshops paying sub-minimum wage into the integrated economy. Its deletion represents the latest effort of the Trump administration to roll back disability protections in the 21st century.
The Americans With Disabilities Act was never meant to be run by lawsuits. Instead, since 1992, the Department of Justice (DOJ) has been releasing technical assistance documents in order to explain disability-related civil rights obligations in plain language. The goal is to preemptively answer questions, but also to provide a model for consistency across the country. Private citizens and judges use these documents, as do people working on disability-related services in public, non-profit, and for-profit sectors. In the two and a half decades since the ADA became law, the DOJ has offered guidelines on how to move people with disabilities out of institutional living, and out of segregated, disabled-people-only work environments: Instead of being told that, as a person with a disability, you have to live in a special facility and work only where special arrangements have been made, the ADA guarantees you the right to live and work wherever reasonable accommodations make that possible. This is a matter of basic disability justice, but also protects disabled people from abusive living situations and exploitative work environments.
The 2016 text in question (archived here) boasts the unassuming title, "Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans With Disabilities Act and Olmstead v. L.C. to State and Local Governments' Employment Service Systems for Individuals With Disabilities." It was designed after a laborious process to help people with disabilities, disability-service providers, employers, and government agencies understand their legal obligation to create pathways to good jobs for disabled Americans. It represented the end of a long process of figuring out how a landmark Supreme Court decision on integrated housing might apply to work. The Olmstead decision from 1999, authored by Justice Ruth Bader Ginsburg, ruled that states must place people with disabilities in community living if "treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated." In plain language, the court ruled that states must create clear pathways for people with disabilities to live in their own homes or group homes located within their communities, rather than isolating them in segregated institutions. Over time, Olmstead has been interpreted to apply to workplaces as well.
Meanwhile, workplaces are just as potentially isolated as live-in institutions, and there's also a risk of economic exploitation of disabled people's labor. Segregated workshops are legally allowed to pay disabled workers pennies per hour. They are incredibly lucrative, and often their owners use their wealth to buy political access. But in 2015, a class action suit in Oregon (Lane v. Brown) and a consent decree in Rhode Island resulted in the new DOJ guidelines: Basically, everyone deserves an opportunity to work in integrated settings. That's only possible if education systems, workplaces, and housing providers play by the same sets of rules governing the public and private mechanisms of disability rights work together. Before 2016, I was optimistic about our chances to wholly reform work opportunities for people with disabilities, so that each person would maximize their potential. Now it's anyone's guess what's going to happen next.
I spoke over the phone to Eve Hill, former deputy assistant attorney general for the DOJ's Civil Rights Division. Hill tells me that technical assistance around the ADA is vital for everyone involved. Removing it doesn't change the law; "the law is the law," she says. But when people don't understand that law, access to services can be threatened, and the courts become the only recourse. Hill says she's angry because the Trump administration is taking away a proactive and "helpful approach," leaving confusion (and the likelihood of litigation) in its wake.
The Sessions DOJ claims to have deleted the guidance documents in order to "afford further discussion with relevant stakeholders, including public entities and the disability community, as to how best to provide technical assistance in this area." That discussion, however, has already taken place. Hill tells me that career Justice appointees (not political appointees) led the way on the 2016 document after talking to "people in sheltered workshops, sheltered workshop providers, parents, people who were formerly in sheltered workshops, people in competitive employment, vocational rehab providers, educators, everyone." There's been plenty of discussion already—and the suggestion that deleting these documents was in the best interests of disabled people is deeply misleading.
What seems to be really happening, according to Hill and numerous other disability rights advocates to whom I spoke, is that the Sessions Department of Justice is siding with sheltered workshops. Sessions has a well-known general antipathy to federal enforcement of disability rights, so he's the perfect figure to use in rolling back this Olmstead guidance. Here, we merely have to follow the money. As Hill notes, "People who pay people with disabilities below the minimum wage get contracts that pay the regular fair market value even though they pay below minimum wage." Many sheltered workshops are extremely profitable enterprises, grossing considerable income from the work itself, while presenting themselves to the public as educational or charitable enterprises.