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

7. What remedies address violations of the ADA’s integration mandate in the context of disability employment systems?

A: In the employment services context, a wide range of remedies may be appropriate to address violations of the ADA and Olmstead. The Department has entered into settlement agreements that require states to expand the services and supports available in integrated employment settings. This typically means expanding the variety, intensity, and duration of supported employment services made available to allow people to work in competitive integrated employment.

Various indicators of integration are relevant to Olmstead employment remedies, such as individuals with disabilities’ interaction with non-disabled persons to the fullest extent possible, and parity of hours, compensation, and benefits. The use of such criteria has been recognized as an appropriate mechanism “to measure the success of the [remedial] employment services offered” by a public entity, including whether such employment services have allowed individuals to receive services in the most integrated setting appropriate.³¹

For individuals to be integrated in a workplace, they should have an opportunity to interact regularly and consistently with their non-disabled peers to the same extent as their non-disabled coworkers. The amount of time spent working in these settings is an important criterion for measuring the extent to which individuals are integrated in employment. Therefore, individuals should be offered supported employment services to allow them to work in integrated settings for the maximum number of hours consistent with their abilities and preferences.³²

Another factor considered in assessing whether employment services are effective in allowing individuals with disabilities to be integrated to the fullest extent possible with non-disabled peers is whether they participate equally in the customary benefits of the employment setting. For example, individuals with disabilities in integrated employment settings should be compensated roughly equally to their nondisabled peers performing the same job.³³ They should have the same opportunities in the employment setting as their non-disabled peers, including: (1) access to the community at lunch, during breaks, or before and after the work day; (2) promotion and/or advancement; (3) privacy, autonomy, and the ability to manage one’s schedule, work assignments, or breaks; and (4) other employment benefits. In addition, whether the setting is integrated with other community businesses and employers, and whether the work performed by persons with disabilities is matched to individuals’ preferences, strengths, or particular support needs (in contrast to “make-work” or simulated tasks that do not correspond to an authentic business necessity or purpose), are also factors relevant to whether the services are effective in integrating individuals with their non-disabled peers.³⁴

Employment service system remedies include system-wide capacity-building, transition, and ongoing support, based on measurable goals, outcomes, and timelines. A public entity may need to expand service providers’ capacity to offer supported employment services in integrated employment settings. This may involve, among other things, changes to what services and supports are approved, changes to rates to encourage community-based services, and adjustments to caps or durational limits on services. It may also require assistance to existing segregated employment service providers to help them to transition to community-based models.

In cases involving individuals currently in segregated sheltered workshops, remedies are designed so that individuals can access the services and supports necessary to allow them to find, obtain, retain, and advance in employment in integrated settings. In addition, individuals currently segregated in sheltered workshops often need information about supported employment services in integrated settings and about opportunities that will allow them to make informed decisions about working in integrated employment (including meeting with persons who formerly were in sheltered workshops and now are working in integrated employment; speaking with community service providers; and visiting integrated job sites).

State and local school educational service systems may need to adjust expectations and strengthen transition planning and support for students preparing to exit school and enter employment. Upon deciding to move from a school or a segregated setting to an integrated setting, students may need a variety of supports and services to adjust to the change. Even those who decide to remain in segregated placements require periodic follow-up support and in-reach so that the option for work in competitive, integrated employment remains open to them.

Throughout the decision making and transition processes, individuals may need assurance that services in the integrated setting will be sufficient, flexible, and lasting. To continue to avoid unnecessary segregation for the long term, states addressing a history of segregated employment should engage in affirmative efforts at system transformation.