[nFBMI-Talk] Sheltered Workshops have a friend in U.S. AG at Department of Justice

[Terry D. Eagle]

Civil Rights Protections Rolled Back

 

Companies That Exploit Disabled People Have a Friend in Jeff Sessions 

 

Right before Christmas, the Department of Justice rescinded key protections
for disabled workers. 

David M. Perry 

Jan 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Jeff Sessions' Department of Justice rescinded 25 guidance documents that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as 2016 (i.e. hardly out of date).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 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 

. 

"They get donations," Hill says of such enterprises. "They get government
supports." The 

Lane ruling and Rhode Island consent decree, enforced as national policy,
threatened the livelihood of the owners of these sheltered workshops. 

Hill insists, though, that the goal of disability advocates isn't just to
shut all workshops down, but to make sure each person with a disability has
a chance to achieve their full potential. "Nothing said that sheltered
workshops are illegal," Hill tells me, "but that they have to comply with
the law. People with disabilities should have the opportunity to try
integrated employment. You don't know what a person with disabilities can do
until you let them try." 

There's strong evidence to support the conjecture that the
sheltered-workshop lobbyists are behind the latest DOJ move. Numerous people
sent me a copy of a letter from ACCSES, an organization that represents a
variety of sheltered-workshop providers. They are celebrating. They had
lobbied the DOJ to take this document down in August, and now they feel that
Sessions has listened to their concerns and is going to protect their
investments. (ACCSES did not respond to requests for comment.) 

It's not just work at stake here, but also equal opportunities for housing
and education. As Hill says: "The same kinds of providers who are members of
ACCSES are the same folks who run institutions. [They] are using exactly the
same arguments [as the sheltered workshop advocates] to say that people with
disabilities should be in institutions." As we've covered at Pacific
Standard 

, concern about a return to institutionalization and other forms of
segregation has been driving much of the protest over Medicaid, 

Secretary Betsy DeVos' actions at the Department of Education 

, and beyond. Again and again, the Trump administration is taking steps in
opposition to inclusive education, work, and living. 

There's so much going on in D.C. that it's hard to keep track of all the
threats, especially when they are dumped en masse right before a major
holiday weekend. Trump and his team claim they are cutting through red tape.
What they are really doing is merrily slicing through the network of
carefully crafted guidelines and regulations once meant to ensure equal
access to civil rights for all.

 

Source:

https://psmag.com/economics/jeff-sessions-roll-back-disability-rights



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