Tuesday, August 07, 2012

D. Or. Distinguishes Wal-Mart, Certifies Class in Olmstead Challenge to Sheltered Workshops

I've blogged before about Lane v. Kitzhaber, the case pending in the United States District Court for the District of Oregon in which a set of plaintiffs with intellectual and developmental disabilities is challenging Oregon's reliance on sheltered workshops, instead of integrated supported employment, for that population.  Yesterday, the district court issued an opinion granting the plaintiffs' motion for class certification.  The state had argued that the Supreme Court's recent decision in Wal-Mart v. Dukes meant that there was no sufficiently common question of law or fact to justify certification of a class action.  But the court rejected that argument.  Here's the nub of the court's analysis:

Unlike this case, Wal-Mart was a Title VII gender discrimination case in which the plaintiffs sought damages. The Supreme Court found that the evidence was insufficient to support commonality by failing to show a common reason for the alleged disparate treatment of female employees. Instead, the evidence showed significant localized discretionary decision- making among thousands of stores nationwide potentially impacting a class of approximately 1.5 million women. In contrast, the Rehabilitation Act claims alleged in this case do not require proof of the intent behind the alleged discrimination, but instead rely on a denial of benefits to disabled persons. Thus, the Title VII analysis in Wal-Mart is not closely on point. Moreover, plaintiffs in this case point to a common policy and practice of unnecessary segregation by DHS and its programs which is capable of classwide resolution. 
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Defendants assert that a single answer cannot be given to any of the four allegedly common questions of fact, pointing to differences among the named plaintiffs. For example, not all of the named plaintiffs work in sheltered workshops; some have worked in (or declined the opportunity to work in) integrated settings; and appropriate vocational training will differ for each individual. However, commonality only requires a single common question of law or fact. A common question of law posed in this case is whether defendants have failed to plan, administer, operate and fund a system that provides employment services that allow persons with disabilities to work in the most integrated setting. As in other cases certifying class actions under the ADA and Rehabilitation Act, commonality exists even where class members are not identically situated.

As defendants correctly note, some plaintiffs or putative class members may need more or different employment services than others. However, all plaintiffs are qualified for, but not receiving the full benefit of, supported employment services; all lack regular contact with non- disabled peers (other than paid staff); and all want to work, but are not working, in an integrated setting. As a result, they and all similarly situated persons suffer the same injury of unnecessary segregation in the employment setting. It is not necessary, as defendants contend, for plaintiffs to prove at this stage that they and all putative class members are unnecessarily segregated and would benefit from employment services. That is, in effect, the answer to the common question and not the common question of whether they are being denied supported employment services for which they are qualified.

Under defendants’ interpretation, differences with respect to the needs and preferences of persons with disabilities would always preclude the certification of a class in virtually all ADA Title II cases. This court rejects that interpretation and concludes that plaintiffs satisfy the commonality requirement of FRCP 23(a).

(The Department of Justice had filed a statement of interest supporting this conclusion).

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