The last of the ADA related guidance withdrawals in the Attorney General’s December 21, 2017 press release was the:
“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 (October 31, 2016).”
This lengthy statement covers work programs for the disabled. DOJ’s position has long been that any work program for the disabled, whether private or governmental must be conducted in an “integrated setting;” that is, with other non-disabled individuals as employees. The 2016 statement was originally published as an extension of DOJ’s June 22, 2011 statement:
“Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.”
Here’s what DOJ officially says about the withdrawal of the Statement:
December 21, 2017—The Department of Justice has withdrawn and removed from ADA.gov its October 2016 guidance on State and local governments’ employment service systems, titled “Statement of the Department of Justice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.” This action was taken 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. Withdrawal of this guidance document does not change the legal responsibilities of State and local governments under title II of the ADA, as reflected in the ADA, its implementing regulations, and other binding legal requirements and judicial precedent, including the U.S. Supreme Court’s Olmstead decision. This withdrawal should not be understood as expressing any view on the legal merits of the principles set forth in this Statement, or on the merit of any specific procedures currently in place in any State or local jurisdictions. The Department will continue to fully and fairly enforce all laws within its jurisdiction, including the ADA.
This carefully worded explanation seems to make the withdrawal of the statement meaningless, for DOJ is not denying any of its individual principles; however, a look at the statement itself shows that DOJ is significantly retreating from positions likely to be seen as extreme by state and local governments. A few examples:
- The entire statement is premised on the idea that “competitive integrated employment” is preferred default for giving jobs to the disabled as part of a service setting. The immediate problem with this premise is that governments, as employers, are already obligated not to discriminate against those with disabilities. “Competitive integrated employment” is just employment. By withdrawing this statement it appears DOJ is backing away from the notion that governments must create new programs that somehow pull disabled individuals into jobs for which they would not qualify under Title I.
- The answer to Question No. 3 includes a long and expensive list of ways that local governments can create “competitive integrated employment.” This includes creation, presumably at government expense, of a “career development plan” for the disabled individual, customizing employment duration and intensity to the disabled person’s needs, and integrated non-working services. The statement makes a nod to expense, but what the statement seems to require is that every disabled individual unable to compete in the ordinary job market be provided with individual coaching along with customized work and work schedules.
DOJ cannot reject Olmstead or limit what the courts may require under Title II, but by withdrawing the 2016 Statement it appears DOJ has recognized that the intersection between employment services programs and ordinary employment is going to be hard to define, especially since “integration” in this context means moving disabled individuals who cannot meet the requirements for employment under Title I into jobs for which they could not compete without extraordinary assistance. That kind of integration may be an appropriate goal for government employment services programs, but it isn’t an easy one to achieve because these programs are generally intended to give meaningful work and social interactions to individuals who cannot by reason of their disability handle an ordinary competitive job environment. For the present, at least, it seems DOJ understands that local governments that Title II was not intended to implement sweeping statements about what is best for the disabled based on academic research. It also seems likely that DOJ will be less likely to engage in enforcement actions intended to coerce local governments into accepting programs whose effectiveness has not been tested and whose costs may be enormous.
