Integrating the Workforce: A Proposed Expansion of the Lane v. Kitzhaber Rule

Sheltered workshops are workplaces that employ, and may legally pay subminimum wages to, individuals with disabilities. Though these workshops have historically been a large part of disability employment services in the United States, many policymakers have advocated for a shift from sheltered workshops to integrated disability employment services, in which individuals with disabilities work alongside other workers for an equal wage that meets or exceeds the minimum wage. In Lane v. Kitzhaber, the U.S. District Court for the District of Oregon applied Title II of the Americans with Disabilities Act (ADA) to sheltered workshop programs, holding that states must allow individuals with disabilities to choose the most integrated disability employment service setting for which they are qualified. Although the Lane v. Kitzhaber holding has expanded access to integrated disability employment services, it has failed to fully meet the legal standard under ADA Title II and the Attorney General’s subsequent integration mandate.

The Attorney General’s integration mandate does not eliminate sheltered workshops, but it does require public entities to administer programs in the most integrated setting possible under ADA Title II. Systemic barriers prevent workers with disabilities from transitioning to integrated employment settings when they so desire. Accordingly, courts should expand the Lane rule to require employers to actively promote supported or otherwise-integrated employment opportunities. Such an expansion would ensure that states provide the most integrated disability employment services possible.

Introduction

Most American workers have the legal right to earn at least $7.25 per hour for their labor.¹29 U.S.C. § 206(a)(C).
For the more than 70,000 individuals with disabilities who currently work for 14(c) certificate holders (who can legally pay their employees subminimum wages), however, the idea of earning $7.25 per hour is merely a fantasy.²Pepper Stetler, Opinion, My Daughter Expects to Work. Will She Make Only .35 an Hour?, N.Y. Times (Jan. 4, 2023), https://www.nytimes.com/2023/01/04/opinion/disabilities-employment-wage.html [perma.cc/P24S-NSHF] (noting that Section 14(c) certificate holders employ at least 70,000 Americans with disabilities).

One such individual, Kerstie Bramlet, has worked on an assembly line producing packages of dog chews since 2014. Kerstie’s employer sells the dog chews for $14.99 on Amazon. Kerstie earns only $1.50 per hour for her labor.³Madison Hopkins, Missouri Allows Some Disabled Workers to Earn Less than an Hour. The State Says It’s Fine if That Never Changes, ProPublica (Nov. 15, 2022, 6:00 AM), https://www.propublica.org/article/missouri-sheltered-workshops-low-graduation-rate [perma.cc/QA6U-5QFJ].

Kerstie’s employer is a sheltered workshop—a place of employment in which employers may legally pay employees with disabilities based on productivity, rather than an hourly rate.⁴Id.; see Alanna Sakovits, Note, Is It Worthless to Be “Worth Less”? Ending the Exemption of People with a Disability from the Federal Minimum Wage Under the Fair Labor Standards Act, 19 CUNY L. Rev. 165, 183 (2015) (“Productivity is virtually the only standard by which section 14(c) measures the value of work.”).
Sheltered workshops encompass a wide range of jobs and employers. For example, employees’ duties may include assembly tasks, custodial work, or maintenance.⁵Zoë Brennan-Krohn, Note, Employment for People with Disabilities: A Role for Anti-Subordination 51 Harv. C.R.-C.L. L. Rev. 239, 244–45 (2016).
Some sheltered workshop employees even work for large, multinational organizations like Goodwill.⁶See MERS/Missouri Goodwill, St. Louis Off. for Developmental Disability Res., https://stldd.org/funded-partners/mers-missouri-goodwill/ [perma.cc/EW3N-EN7B].
Federal law allows these sheltered workshops to operate under Section 14(c) of the Fair Labor Standards Act (FLSA).⁷29 U.S.C. § 214(c).
Sheltered workshops receive state and federal funding,⁸See Robert Evert Cimera, Does Being in Sheltered Workshops Improve the Employment Outcomes of Supported Employees with Intellectual Disabilities?, 35 J. Vocational Rehab. 21, 21 (2011) (noting that sheltered workshops compete with other disability employment services for state and federal funds).
and many state agencies rely heavily on sheltered workshops to provide disability employment services to their residents.⁹See Susan Stefan, Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings, 26 Ga. St. U. L. Rev. 875, 930–31 (2010).
Thus, government funding is important to ensure sheltered workshops remain profitable and have consistent access to new employees.¹⁰See id. at 880.
Although productivity-based wages do not necessarily result in a subminimum wage, in reality, sheltered workshops typically pay workers with disabilities less than the federal minimum wage.¹¹Carli Friedman & Mary C. Rizzolo, Fair-Wages for People with Disabilities: Barriers and Facilitators, 31 J. Disability Pol’y Stud. 152, 152 (2020).
In fact, the average sheltered workshop employee earns only $3.34 per hour, less than half the current federal minimum wage.¹² U.S. Comm’n on C.R., Subminimum Wage: Impacts on the Civil Rights of People with Disabilities 61 (2020).
Therefore, sheltered workshops differ from integrated employment opportunities not only because of the level of integration among their respective workforces but also because employees at integrated workplaces must receive at least the minimum wage and earn a wage equal to other employees in the same position.¹³Infra Section I.B.

In 2013, the U.S. District Court for the District of Oregon applied Title II of the Americans with Disabilities Act (ADA) to sheltered workshops in Lane v. Kitzhaber.¹⁴Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1202 (D. Or. 2012).
The court categorized sheltered workshops as a type of disability employment service that states use to connect individuals with disabilities to employment opportunities.¹⁵Id.
The court held that ADA Title II requires states to provide disability employment services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”¹⁶Id. at 1206 (quoting 28 C.F.R. §§ 35.130(d), 41.51(d) (2016)).
By definition, a sheltered workshop is a nonintegrated workplace.¹⁷See generally Jessica L. Nettles, From Sheltered Workshops to Integrated Employment: A Long Transition, 8 LC J. Special Educ., art. 9, 2013, at 1, 7 (contrasting integrated employment opportunities with “segregated environments,” including “sheltered employment”).
Accordingly, the court held that states must allow qualified individuals—those who meet state-specific program qualifications and are able to do the relevant work—to choose to work in an integrated workplace.¹⁸See Lane, 841 F. Supp. 2d at 1206.
Further, because every state receives federal funding to provide qualified individuals¹⁹See Supported Employment (SE) Services for Individuals with the Most Significant Disabilities Awards, Rehab. Servs. Admin. (2023), https://rsa.ed.gov/about/programs/supported-employment-services-for-individuals-with-the-most-significant-disabilities/awards [perma.cc/PRC9-NH89].
with supported employment services,²⁰For a discussion of supported employment services, see infra Section I.B.
which are more integrated employment settings than sheltered workshops,²¹See Gena Rinaldi, Comment, Gimme Shelter?: Lane v. Kitzhaber and Its Impact on Integrated Employment Services for People with Disabilities, 22 Am. U. J. Gender Soc. Pol’y & L. 749, 777–78 (2014) (describing supported employment services as more integrated settings than sheltered workshops).
Lane theoretically allows all qualified individuals to choose an integrated workplace.²²See id.

Systemic barriers, however, prevent individuals with disabilities from transitioning from sheltered workshop employment to more integrated employment settings.²³Infra notes 86–88 and accompanying text.
Notably, Lane helped some individuals seek a more integrated employment setting.²⁴See, e.g., Leslie Salzman, Using Domestic Law to Move Toward a Recognition of Universal Legal Capacity for Persons with Disabilities, 39 Cardozo L. Rev. 521, 536 (“Despite the court’s line drawing in Lane v. Kitzhaber, the plaintiffs nevertheless were able to use the integration mandate to successfully shift services from a segregated to an integrated setting.”).
However, because Lane did not address systemic barriers to disability employment, it has failed to ensure that all individuals with disabilities receive disability employment services “in the most integrated setting appropriate to the[ir] needs” pursuant to ADA Title II, which prohibits discrimination on the basis of disability in state-provided services.²⁵Infra Section II.C; 28 C.F.R. §§ 35.130(d), 41.51(d) (2016).

Therefore, courts should expand Lane to better align with the ADA’s mandate of integrated public employment services. Part I discusses the history of sheltered workshops in the United States, the advent of alternative disability employment services, and the ongoing policy debate over the existence of sheltered workshops. Part II discusses the Lane v. Kitzhaber decision and its effects. Part III recommends that courts expand Lane to require states to actively promote the transition of workers with disabilities to supported or otherwise-integrated employment settings from sheltered workshops, pursuant to the requirements of ADA Title II and the Attorney General’s integration mandate.

Development of Sheltered Workshops and State Disability Employment Services

Before examining Lane, this Note discusses the development of sheltered workshops in the United States, the development of alternative disability employment services in the United States, and recent state-level sheltered workshop policy changes.

The Development of Sheltered Workshops in the United States

The first sheltered workshop in the United States was the Perkins Institute for the Blind, established in Massachusetts in 1840.²⁶ Nat’l Disability Rts. Network, Segregated and Exploited: The Failure of the Disability Service System to Provide Quality Work 11 (2011).
At the Perkins Institute, people who were blind received employment opportunities unavailable to the rest of the population.²⁷Id.
Workers with blindness at the Perkins Institute earned only enough “to pay for their room, board, and clothing.”²⁸Ernest Freeberg, The Meanings of Blindness in Nineteenth-Century America, 110 Proc. Am. Antiquarian Soc’y 119, 135 (2000).
Nevertheless, because the contemporary alternatives for individuals with blindness were state dependence or abject poverty, the Perkins Institute deemed its sheltered workshop program a success.²⁹Id. at 134–35.
New York State and Philadelphia soon replicated the Perkins Institute’s sheltered workshop model by creating a state-sponsored and private sheltered workshop for people who were blind, respectively.³⁰See id. at 135–36.

Although private and state-run sheltered workshops existed in the United States since the mid-19th century, Congress did not enshrine support for sheltered workshops into federal law until 1933 through the National Industrial Recovery Act (NIRA).³¹See Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma?: Sheltered Workshops and the Employment of the Disabled, 16 U. Pa. J.L. & Soc. Change 151, 154 (2013) (“The National Industrial Recovery Act (NIRA) of 1933-1935 was the first major U.S. legislative pronouncement on the employment of the disabled . . . .”).
NIRA allowed sheltered workshops to pay individuals with disabilities based on productivity rather than hours worked, thus permitting subminimum wages.³²Id.
To prevent businesses from using sheltered workshops to avoid the newly established federal minimum wage, President Roosevelt issued an Executive Order requiring the Department of Labor to establish permissible disability and wage standards for sheltered workshops.³³ William G. Whittaker, Cong. Rsch. Serv., RL30674, Treatment of Workers with Disabilities Under Section 14(c) of The Fair Labor Standards Act 6 (2007).
Pursuant to the Executive Order and its authority under NIRA, the Department of Labor created three classifications of sheltered workshops: (1) charitable organizations operating as sheltered workshops, which had no wage restrictions; (2) privately owned sheltered workshops, which could not pay employees less than 75% of the minimum wage; and (3) households employing individuals in industrial home work, which also had no wage restrictions.³⁴Id. at 5–6.
However, the Supreme Court declared NIRA unconstitutional for unrelated reasons in 1935,³⁵A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935) (“On both the [constitutional] grounds we have discussed . . . we hold the code provisions here in question to be invalid . . . .”).
setting aside its sheltered workshop provisions.³⁶ Whittaker, supra note 33, at 6.

The earliest drafts of the FLSA included similar sheltered workshop exemptions in their federal minimum wage provisions.³⁷See Samuel R. Bagenstos, The Case Against the Section 14(c) Subminimum Wage Program 2 (2012) (unpublished manuscript) [perma.cc/8WEK-UQJR].
Legislative history reveals at least two motivations behind such exemptions. First, some members of Congress expressed concern that a particularly high minimum wage would lock workers with disabilities out of the economy entirely.³⁸E.g., Fair Labor Standards Act of 1937: Joint Hearings Before the S. Comm. on Educ. & Lab. & H. Comm. on Lab., 75th Cong. 1080 (1937) (statement of Hudson B. Hastings, Professor of Indus. Admin., Yale Univ.) (reporting a concern that requiring employers to pay a minimum wage to employees with disabilities would “prevent millions of workers who are subnormal in their physical or mental capacities from securing any employment whatsoever”); 19 U.S.C. § 214(c)(1) (noting that sheltered workshops “prevent curtailment of opportunities for employment” of individuals with disabilities, which one may presume is due to increased employment opportunities in sheltered workshops for individuals with disabilities).
Second, some, including Labor Secretary Frances Perkins, sought to expand the scope of sheltered workshops to cover Southern employers who exacerbated racial economic oppression by hiring Black workers at subminimum wages.³⁹ Whittaker, supra note 33, at 6.
Notably, Congress eventually rejected Secretary Perkins’s proposal, focusing FLSA’s sheltered workshop provisions solely on workers with disabilities.⁴⁰See id. at 6–7.

Regardless of purpose, the codified version of Section 14(c) of the FLSA was similar to NIRA’s sheltered workshop exemptions, allowing sheltered workshops to operate legally after receiving certification from the Secretary of Labor.⁴¹19 U.S.C. § 214(c)(1).
Once certified, sheltered workshops could (and still can) pay individuals with disabilities subminimum wages based on productivity, not an hourly rate.⁴² Whittaker, supra note 33, at 6. The Secretary of Labor has lost some regulatory authority over sheltered workshops over time. For example, although Section 14(c) originally empowered the Secretary of Labor to set a minimum wage floor for sheltered workshop employees, amendments to the FLSA eliminated that provision in 1986. Nat’l Disability Rts. Network, supra note 26, at 13.

Sheltered workshops increased in popularity after World War II. In the 1950s and 1960s, individuals with disabilities who did not participate in sheltered workshop employment were often institutionalized.⁴³Bryan Dague, Sheltered Employment, Sheltered Lives: Family Perspectives of Conversion to Community-Based Employment, 37 J. Vocational Rehab. 1, 1 (2012).
Consequently, sheltered workshop employment became a norm among disability employment service providers, which multiplied to keep up with demand.⁴⁴Id.
In 1948, only eighty-five sheltered workshops existed in the United States; by 1976, that number had increased to approximately three thousand.⁴⁵Hoffman, supra note 31, at 154.
Although the 1963 Developmental Disabilities Act sought to encourage the “independence, productivity, integration, and inclusion of people with disabilities in the community with an emphasis on employment,” subsequent amendments to the Act used sheltered workshops, instead of integrated workplaces, to provide employment opportunities for individuals with disabilities.⁴⁶Id. at 155.
Thus, following World War II, sheltered workshops became the central aspect of American disability employment services.⁴⁷See id. at 154.

The Javits-Wagner-O’Day Act of 1971 further encouraged the use of sheltered workshops by funding their operations with government contracts.⁴⁸See 41 U.S.C. §§ 8501–8506 (1971).
The Act created a fifteen-member executive branch committee with authority to mandate government purchases from sheltered workshops and other places of employment that hired individuals with severe disabilities or blindness.⁴⁹Id. §§ 8502–8503.
The committee has since developed the AbilityOne program to provide government contracts to eligible employers.⁵⁰Brennan-Krohn, supra note 5, at 245.
Though AbilityOne does not require sheltered workshop use, a substantial number of AbilityOne contracts go to sheltered workshops.⁵¹Noga Baruch, Note, Disability Employment Policy and AbilityOne: Ending a 1930s Program in the 21st Century, 50 Pub. Cont. L.J. 317, 331 (2021) (clarifying that AbilityOne requires only that 75% of AbilityOne contractor employees have covered disabilities).
State and county governments also provide sheltered workshops with a steady stream of revenue.⁵²Nettles, supra note 17, at 10 (“46% of funding for sheltered workshops [in 2001] was provided by state and county agencies in the form of grants and reimbursements for support services.”).
Without public funding, many sheltered workshops would almost certainly have to close.⁵³See Nat’l Disability Rts. Network, supra note 26, at 35–39, 41 (noting that sheltered workshops receive nearly half of their revenue from public entities).

Alternative Disability Employment Services

In response to researchers’ findings that people with disabilities were equally or more productive in integrated workspaces as sheltered workshops,⁵⁴Claude W. Whitehead, The Sheltered Workshop Dilemma: Reform, or Replacement, 7 Remedial & Special Educ., no. 6, 1986, at 18, 18.
policymakers began advocating for integrated employment, rather than sheltered workshop employment. Congress promoted the adoption of “integrated employment” settings as an alternative to sheltered workshops in the Rehabilitation Act of 1973.⁵⁵Hoffman, supra note 31, at 155 (“The Rehabilitation Act essentially initiated a U.S. disability policy of employment and community integration.”).
Integrated employment is defined as full- or part-time work that (1) pays all employees at least the minimum wage; (2) pays individuals with disabilities equally to other employees with “similar training, experience, and skills”; (3) allows individuals with disabilities to interact with individuals without disabilities to the same extent as other employees; and (4) gives individuals with disabilities similar career-advancement opportunities as others in the same workplace.⁵⁶29 U.S.C. § 705(5).
Competitive integrated employment settings can encompass many different job types, ranging from veterinarian clinic data analysis⁵⁷What Is Competitive Integrated Employment?, Ill. Dep’t of Hum. Servs., https://www.dhs.state.il.us/page.aspx?item=128239 [perma.cc/U8XH-4R84].
to car manufacturing.⁵⁸Disability Inclusion at Work Is a Win-Win, N.C. Dep’t Health & Hum. Servs. (Oct. 18, 2023), https://www.ncdhhs.gov/blog/2023/10/18/disability-inclusion-work-win-win [perma.cc/AG2D-DU9K].

One of the Rehabilitation Act’s primary purposes was to “promote and expand employment opportunities in the public and private sectors for handicapped individuals and to place such individuals in employment.”⁵⁹Rehabilitation Act of 1973, Pub. L. No. 93-112, § 2(8), 87 Stat. 355, 357; Nat’l Disability Rts. Network, supra note 26, at 15.
In other words, Congress hoped to provide more competitive integrated employment opportunities for individuals with disabilities.⁶⁰ Nat’l Disability Rts. Network, supra note 26, at 15.
Furthermore, Section 504 of the Rehabilitation Act states that no entity can deny individuals with disabilities benefits from or participation in “any program or activity receiving Federal financial assistance.”⁶¹Rehabilitation Act of 1973 § 504, 87 Stat. at 394.
Section 504 led agencies across the executive branch to implement policies prohibiting disability discrimination in the provision of public services, including employment services.⁶²Stefan, supra note 9, at 880–81.
The protections in the Rehabilitation Act, however, apply only to services receiving federal funding, which leaves some services uncovered.⁶³See Hoffman, supra note 31, at 155 (noting that the Rehabilitation Act “initiated” the shift toward community integration in disability employment policy but failed to prevent subsequent expansions of sheltered workshop programs).

Efforts to encourage community integration in government disability employment services became more pronounced in the 1980s with the advent of supported employment programs.⁶⁴Dague, supra note 43, at 1.
These programs enable individuals with disabilities to work in integrated employment settings and receive ongoing service-provider support⁶⁵The meaning of service-provider support varies based on employee needs. Zana Marie Lutfiyya, Pat Rogan & Bonnie Shoultz, Supported Employment: A Conceptual Overview, in Resources on Supported Employment 4, 7, 8 (Syracuse Univ. Ctr. Hum. Pol’y 1988), https://files.eric.ed.gov/fulltext/ED307746.pdf [perma.cc/2UFD-VBKL]. Supported employment services may include, but are not limited to, job matching services, job coaching and development, and other career development assistance. Statewide Quality Improvement Council & Ga. Dep’t of Behav. Health & Developmental Disabilities, Guide to Supported Employment 12–13.
to achieve the best possible integrated employment outcomes.⁶⁶Gary R. Bond, Robert E. Drake, Kim T. Mueser & Deborah R. Becker, An Update on Supported Employment for People with Severe Mental Illness, 48 Psychiatric Servs. 335, 335 (1997). The supported employment model assists individuals with disabilities in finding and keeping integrated employment by (1) focusing services on finding “permanent competitive jobs”; (2) being available for all individuals with disabilities who wish to use supported employment services; (3) using a “rapid job search approach,” under which individuals with disabilities “obtain jobs directly, rather than providing lengthy pre-employment assessment, training, and counseling”; (4) providing access to treatment teams; (5) basing job placement on participants’ “preferences, strengths, and work experiences”; and (6) providing continuous support services for individuals with disabilities throughout their employment. Gary R. Bond, Supported Employment: Evidence for an Evidence-Based Practice, 27 Psychiatric Rehab. J. 345, 346–47 (2004).

In 1986, Congress amended the Rehabilitation Act to financially assist states implementing supported employment programs.⁶⁷Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 704, 100 Stat. 1807, 1834.
Specifically, the amendments created federal grants for certain state-level public supported employment services.⁶⁸Id. at 1836. Congress expanded the scope of supported employment services that are eligible for federal grant money under the Workforce Innovation and Opportunity Act of 2014. See Tom Riesen, Robert L. Morgan & Cary Griffin, Customized Employment: A Review of the Literature, 43 J. Vocational Rehab. 183, 184 (2015) (“WIOA also modified the definition of supported employment to include [customized employment services].”); see also Workforce Innovation and Opportunity Act of 2014, Pub. L. 113-128, § 404, 128 Stat. 1425, 1633.
Following those amendments, the Department of Education created the State Supported Employment Services Program to distribute these grants to eligible state services.⁶⁹See generally 34 C.F.R. § 363 (2016).
The Department of Education requires states requesting this grant money to submit a plan describing their proposed supported employment services.⁷⁰The State Supported Employment Services Program, 34 C.F.R. § 363.11 (2016); Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 705, 100 Stat. 1807, 1835–1836.
All fifty states currently receive federal funding to provide supported employment services for individuals with disabilities under the State Supported Employment Services Program.⁷¹See Rehab. Serv. Admin., supra note 19.

Supported employment programs have helped individuals with disabilities obtain and keep improved job opportunities in integrated workplaces.⁷²See, e.g., Tina Marshall et al., Supported Employment: Assessing the Evidence, 65 Psychiatric Servs. 16 (2014).
For example, Joseph, a formerly unhoused individual with disabilities, worked with supported employment services to apply for, obtain, and succeed at an integrated job.⁷³Supported Employment Success: Read Joseph’s Story About Becoming a Peer Support Specialist, Cascadia Health (Oct. 27, 2023), https://cascadiahealth.org/supportedemploymentjoseph [perma.cc/KMG4-JQRZ].
Now, Joseph works as a Peer Support Specialist in the medical field, earning enough to afford housing, pay off debts, buy a new car, and even pursue higher education.⁷⁴Id.
Supported employment provides substantial job benefits to individuals with disabilities like Joseph.⁷⁵See, e.g., id.

The advent of supported employment also correlates with a rapid increase in individuals with disabilities working in integrated employment settings, growing from 33,382 workers in 1988 to 120,691 workers in 2008.⁷⁶Dague, supra note 43, at 1.
Based on this evidence, some states have implemented policies expressing a preference for supported employment and other integrated employment services over sheltered workshops.⁷⁷See, e.g., Sheltered Work vs. Competitive Integrated Employment: Differences Between Sheltered Work and Competitive Integrated Employment, Ind. Disability Rts., https://www.in.gov/idr/employment/competitive-integrated-employment-resources/sheltered-work-vs.-competitive-integrated-employment [perma.cc/987S-PALS]; Tex. Health & Hum. Serv., Employment for People with Disabilities: What You Need to Know 2 (2019).
Nevertheless, Section 14(c) certificate holders, who may legally pay individuals with disabilities subminimum wages, still employ over 70,000 individuals with disabilities.⁷⁸Stetler, supra note 2.
Despite their decrease in prominence, sheltered workshops are still the most prominent source of state disability employment services.⁷⁹Dague, supra note 43, at 1 (“75% of the people with intellectual and developmental disabilities [receiving disability employment services] remain in segregated, sheltered work or day programs . . . .”).

The Sheltered Workshop Debate

Many disability rights advocates have argued for the complete abolition of sheltered workshops.⁸⁰See generally, e.g., Bagenstos, supra note 37.
A vast majority of sheltered workshop employees would prefer integrated employment,⁸¹Alberto Migliore, David Mank, Teresa Grossi & Patricia Rogan, Integrated Employment or Sheltered Workshops: Preferences of Adults with Intellectual Disabilities, Their Families, and Staff, 26 J. Vocational Rehab. 5, 12–13 (2007). When surveyed, 63% of individuals with disabilities indicated that they would prefer integrated employment to sheltered workshop employment, and 11% indicated that they would at least heavily consider shifting to integrated employment in the future. See id. Only 14% of individuals with disabilities surveyed said that they would prefer sheltered workshop employment services to integrated employment services. See id.
but most remain in sheltered workshops.⁸²Alberto Migliore, Teresa Grossi, David Mank & Patricia Rogan, Why Do Adults with Intellectual Disabilites Work in Sheltered Workshops?, 28 J. Vocational Resp. 29, 30 (2008) (“[F]or every one person working in competitive employment, three individuals remain in a segregated day program.”).
Further, sheltered workshop opponents argue that sheltered workshops do not pay enough for individuals with disabilities to support themselves⁸³Sheltered workshop employees earn an average of .34 per hour, sometimes earning “well under a dollar per hour.” U.S. Comm’n on C.R., supra note 12, at 61; Brennan-Krohn, supra note 5, at 244. Such low wages render many sheltered workshop employees financially unable to enjoy “continuing education, vacations, restaurants, and hobbies.” Nat’l Disability Rts. Network, supra note 26, at 28.
or to match the value of their employees’ work.⁸⁴Bagenstos, supra note 37, at 13 (noting that sheltered workshops enable employers to pay employees with disabilities “less than they deserve under the law, and significantly less than they produce for their managers”).
In response to the argument that individuals with disabilities can always choose to transition to integrated employment,⁸⁵E.g., J. Gardner Armsby, Note, The War on Sheltered Workshops: Will ADA Title II Discrimination Lawsuits Terminate an Employment Option for Adults with Disabilities?, 31 Ga. St. U. L. Rev. 443, 468 (2015). (“A state can help more of its citizens with disabilities reach their potential by offering a choice between supported employment and sheltered workshop placement.”).
sheltered workshop opponents note that economic,⁸⁶The economic barriers preventing sheltered workshop employees from shifting to integrated employment opportunities are twofold. First, sheltered workshop employment does not “translate into any training useful for the larger economy.” Stefan, supra note 9, at 920; see also Brennan-Krohn, supra note 5, at 244–45 (noting that sheltered workshop jobs typically involve only “simple one- and two-step assembly tasks,” such as “counting rocks and moving them from one box to another”); Hoffman, supra note 31, at 167; Nat’l Disability Rts. Network, supra note 26, at 32 (“[M]ost sheltered workshops do not have [the] modern tools or machinery . . . [necessary] to prepare workers for traditional work . . . .”). Second, because sheltered workshops provide particularly low wages, sheltered workshop employees risk becoming dependent on government programs to meet their basic needs. Id. at 28. After all, because these programs require recipients to remain poor, individuals with disabilities cannot transition to more economically sustainable employment without losing the benefits that they need to survive. Id.
psychological,⁸⁷See, e.g., David K. Griffin, Howard Rosenberg, Wendy Cheyney & Barry Greenberg, A Comparison of Self-Esteem and Job Satisfaction of Adults with Mild Mental Retardation in Sheltered Workshops and Supported Employment, 31 Educ. & Training Mental Retardation & Dev. Disabilities 142, 148–49 (1996). Specifically, sheltered workshops are associated with a more negative self-image, a relatively lower self-esteem, reduced social integration, and reduced overall psychological health when compared to individuals with disabilities in integrated employment settings. Id. at 148; Nettles, supra note 17, at 17–18.
and societal⁸⁸Hoffman, supra note 31, at 167. By segregating individuals with disabilities into separate places of employment, sheltered workshops contribute to the stigma that individuals with disabilities are “unemployable.” Dustin Galer, “A Place to Work Like Any Other?” Sheltered Workshops in Canada, 1970-1985, Can. J. Disability Stud., June 2014, at 1, 29. Consequently, “employers may resist hiring someone from a sheltered workshop because of the stigma associated with such background.” Hoffman, supra note 31, at 167 (quoting Alberto Migliore, Sheltered Workshops, in International Encyclopedia of Rehabilitation 4 (2010)).
barriers prevent individuals with disabilities from leaving sheltered workshop employment. As a result, despite a majority of sheltered workshop employees wanting to transition to integrated employment,⁸⁹Migliore et al., supra note 81, at 12–13.
most sheltered workshop employees never do so.⁹⁰Haley Moss, Screened out Onscreen: Disability Discrimination, Hiring Bias, and Artificial Intelligence, 98 Denv. L. Rev. 775, 789 (2021).
Thus, opponents of sheltered workshops argue that sheltered workshops trap individuals with disabilities in subminimum wage jobs, preventing them from transitioning to more lucrative and fulfilling integrated employment opportunities.⁹¹Dague, supra note 43, at 1–2.

In response to these critiques, multiple states have enacted laws prohibiting sheltered workshops.⁹²See generally 2023 State Legislative Watch, Ass’n of People Supporting Emp. First (May 1, 2023), https://apse.org/state-legislation [perma.cc/DJ7Y-WYAL].
Vermont became the first state to eliminate sheltered workshops in 2005.⁹³Day 11: Subminimum Wage & Sheltered Workshops, United Way S. Cent. Mich. (Aug. 15, 2022), https://unitedforscmi.org/day-11-subminimum-wage-sheltered-workshops [perma.cc/3G8M-QTYF]; Jennifer Sulewski, Inst. Cmty. Inclusion, Shifting Resources Away from Sheltered Workshops in Vermont 1 (2007).
Vermont’s elimination of sheltered workshops was gradual.⁹⁴ Sulewski, supra note 93, at 1–2.
The Vermont Division of Disability and Aging Services (VDDAS) issued plans in 1999 and 2002 that prevented sheltered workshops from obtaining state funding to expand their services.⁹⁵Id. at 1.
Concurrently, the Vermont Division of Vocational Rehabilitation helped sheltered workshops throughout the state shift to integrated employment opportunities.⁹⁶Id.
By 2005 the last sheltered workshop in Vermont had closed, and VDDAS issued a new plan preventing future sheltered workshops from receiving any state funding.⁹⁷Id.
Although Vermont has not formally prohibited sheltered workshops, these policies have effectively prevented sheltered workshops from operating in Vermont since 2005.⁹⁸ Ass’n of People Supporting Emp. First, Trends and Current Status of 14(c), at 7 (2023).

Since the last sheltered workshop closed in Vermont, seventeen states have formally prohibited sheltered workshops.⁹⁹Press Release, No. 18-04 Alaska Dep’t of Lab. & Workforce Dev., Minimum Wage Exemption for Persons with Disabilities Eliminated (Feb. 16, 2018), https://labor.alaska.gov/news/2018/news18-04.pdf [perma.cc/NF6X-C2DC]; H.R. 1874, 129th Leg., 2d. Reg. Sess. (Me. 2020); Gen. Assemb. 420, 2016 Reg. Sess. (Md. 2016); S. 47, 2015 Reg. Sess. (N.H. 2015); S. 494, 80th Leg. Assemb., 2019 Reg. Sess. (Or. 2019); H.R. 1706, 66th Leg., 2019 Reg. Sess. (Wash. 2019); S. 793, 31st Leg., 2021 Reg. Sess. (Haw. 2021); S. 39, 2021 Reg. Sess. (Colo. 2021); S. 639, 2021-2022 Reg. Sess. (Cal. 2021); H.R. 122, 151st Gen. Assemb. (Del. 2021); S. 2042, 112th Gen. Assemb., 2021-2022 Reg. Sess. (Tenn. 2022); Assemb. 456, 80th Leg., 2019 Reg. Sess. (Nev. 2019); H.R. 33, 92d Leg., 1st Spec. Sess. (Minn. 2021); S. 533, 124th Leg., 2021–2022 Reg. Sess. (S.C. 2022); H.B. 7511, Jan. Sess. (R.I. 2022); S. 753, 86th Leg. 2019–2020 Reg. Sess. (Tex. 2019); Gen. Assemb. 1924, 2023 Reconvened Sess. (Va. 2023).
The states prohibiting sheltered workshops are regionally diverse,¹⁰⁰See supra note 99.
and lawmakers across the political spectrum¹⁰¹See Alphabetical Listing of Senators, Tennessee General Assembly, https://wapp.capitol.tn.gov/apps/LegislatorInfo/directory.aspx?chamber=S [perma.cc/S43T-VFE5].
have supported measures to eliminate sheltered workshops.¹⁰²See, e.g., S. 2042, 112th Gen. Assemb., 2021–2022 Reg. Sess. (Tenn. 2022) (eliminating sheltered workshops under sponsorship from three Democrats and three Republicans).
Other states, like Illinois, have taken steps toward limiting sheltered workshop operations. Although Illinois has not formally prohibited sheltered workshops, Illinois now refuses to provide state contracts to sheltered workshops.¹⁰³Exec. Order No. 2021-26, § 1 (Ill. 2021).
Like Vermont’s 1999 policy, this policy will likely substantially limit sheltered workshop operations.¹⁰⁴Cf. Sulewski, supra note 93, at 1 (noting that Vermont’s refusal to fund sheltered workshops helped end sheltered workshops in the state, which may work similarly in Illinois).

Despite this widespread shift away from sheltered workshops, some argue that sheltered workshops still have substantial benefits. According to their proponents, sheltered workshops better prepare individuals with disabilities for integrated employment opportunities,¹⁰⁵See, e.g., Peter Blanck, Helen A. Schartz & Kevin M. Schartz, Labor Force Participation and Income of Individuals with Disabilities in Sheltered and Competitive Employment: Cross-Sectional and Longitudinal Analyses of Seven States During the 1980s and 1990s, 44 Wm. & Mary L. Rev. 1029, 1044 (2003) (“[S]heltered workshops historically were considered a means for individuals with disabilities to learn vocational skills necessary to obtain integrated employment.” (footnote omitted)); see also Robert Evert Cimera, Paul Wehman, Michael West & Sloan Burgess, Do Sheltered Workshops Enhance Employment Outcomes for Adults with Autism Spectrum Disorder?, 16 Autism 87, 93 (2012) (“One of the often stated benefits of sheltered workshops is that they serve as a stepping-stone to community-integrated employment by providing essential employment training and work preparation.” (citation omitted)).
protect individuals with disabilities from crime and harassment,¹⁰⁶See, e.g., Armsby, supra note 85, at 446. Many individuals with disabilities fear a heightened risk of “crime, people who may take advantage of workers with disabilities; and a lack of safety in the work environment.” Migliore et al., supra note 82, at 30 (footnotes omitted). After all, “the specific vulnerabilities of people with disabilities” may increase the level of risk of crime or harassment in an integrated work environment. Hoffman, supra note 31, at 164. Many may perceive sheltered workshops as being better equipped to protect individuals with disabilities from these risks. Id.
provide a community for individuals with disabilities and their families,¹⁰⁷Armsby, supra note 85, at 446. When asked about their largest concern regarding shifting to an integrated employment setting, families of individuals with disabilities cited losing the community that comes with sheltered workshop employment. Dague, supra note 43, at 5–6. Relatedly, some individuals with disabilities may fear that they will “be ridiculed or ostracized” in an integrated work setting. See Hoffman, supra note 31, at 165.
provide structure and routine for individuals with disabilities,¹⁰⁸Armsby, supra note 85, at 446. A daily routine, which sheltered workshops provide, helps many individuals with disabilities psychologically. See Dague, supra note 43, at 6; Brennan-Krohn, supra note 5, at 240. Many families of individuals with disabilities cite the routine of sheltered workshops as providing a helpful break from caretaking. Dague, supra note 43, at 6.
and maximize disability employment.¹⁰⁹See, e.g., Brennan-Krohn, supra note 5, at 255–56. The struggle that some individuals with disabilities have faced in seeking employment after sheltered workshop closures supports the concern that many employers will refuse to hire individuals with disabilities at the minimum wage. See id. (noting that, after Vermont closed all sheltered workshops, 63 percent of individuals with disabilities in Vermont did not procure paid employment).
State legislatures in Kentucky, West Virginia, New Jersey, and Missouri have refused to advance proposed bills eliminating sheltered workshops.¹¹⁰H.R. 471, 2023 Gen. Assemb., Reg. Sess. (Ky. 2023); H.D. 3419, 2023 Leg., 2023 Reg. Sess. (W. Va. 2023); Assemb. 6172, 219th Leg., 2020–2021 Reg. Sess. (N.J. 2022); see also H.R. Con. Res. 39, 101st Gen. Assemb., 2021 Reg. Sess. (Mo. 2021).
Additionally, although U.S. Representative Bobby Scott has introduced the Transformation to Competitive Integrated Employment Act to federally phase out sheltered workshops, Congress—despite the aforementioned federal shift toward supported employment programs¹¹¹Supra Section I.B.
—has not made any significant advancements toward prohibition.¹¹²See H.R. Res. 2373, 117th Cong. (2021).

Clearly, policymakers have not built consensus around the proper place for sheltered workshops in the United States. Unfortunately, in this policy debate, both sides risk ignoring the most important voices: individuals with disabilities themselves. Advocates on both sides of this debate have been accused of paternalistically forcing their preferences on individuals with disabilities rather than actually listening to their needs.¹¹³See Brennan-Krohn, supra note 5, at 259–60; Madison Hopkins, What the Disability Community Told Us About Sheltered Workshops, ProPublica (Nov. 19, 2022, 9:00 AM), https://www.propublica.org/article/what-disability-community-told-us-about-sheltered-workshops [perma.cc/RRG3-4GYC]; Patricia Hein & Shaz Ansari, From Sheltered to Included: The Emancipation of Disabled Workers from Benevolent Marginalization, 65 Acad. Mgmt. J. 749 (2022).
Because self-advocacy tends to result in improved conditions for people with disabilities, such paternalism could deprive individuals with disabilities of the best possible employment opportunities.¹¹⁴See Elizabeth Tilley et al., The Impact of Self-Advocacy Organizations on the Subjective Well-Being of People with Intellectual Disabilities: A Systematic Review of the Literature, 33 J. Applied Rsch. Intell. Disabilities 1151, 1162 (2020).

Lane v. Kitzhaber

Courts have been one mechanism through which individuals with disabilities have sought to protect and promote their employment autonomy. In Lane v. Kitzhaber, eight individuals with disabilities brought suit when Oregon’s Department of Human Services placed them in sheltered workshops though they were qualified for integrated employment services.¹¹⁵Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1200 (D. Or. 2012).
They alleged that this placement unnecessarily and illegally segregated them in violation of ADA Title II.¹¹⁶First Amended Complaint at 3–4, Lane, 841 F. Supp. 2d 1199 (No. 3:12-cv-00138), 2012 WL 2282365.

The Application of Title II of the ADA to Sheltered Workshops

The Lane court first held that ADA Title II applies to sheltered workshop settings.¹¹⁷Lane, 841 F. Supp. 2d at 1202; see also Memorandum of Law in Support of Defendants’ Motion to Dismiss at 1–2, Lane, 841 F. Supp. 2d 1199 (No. 3:12-cv-00138), 2012 WL 2282358.
Title II states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”¹¹⁸42 U.S.C. § 12132.
In so stating, Title II prohibits all discrimination against individuals with disabilities in government-provided public services.¹¹⁹Id.
Though the Rehabilitation Act of 1973 had already prohibited discrimination against individuals with disabilities by most federal government entities,¹²⁰Mark C. Weber, Disability Discrimination by State and Local Government: The Relationship Between Section 504 of the Rehabilitation Act and Title II of The Americans with Disabilities Act, 36 Wm. & Mary L. Rev. 1089, 1095 (1995).
Title II applies to federal, state, and local public entities (even if they do not receive federal funding).¹²¹42 U.S.C. § 12131.
Rather than setting exhaustive standards to prevent public entities from discriminating against individuals with disabilities, Congress authorized the Attorney General to implement Title II.¹²²Id. § 12134(a).
Under this authority, the Attorney General implemented the integration mandate, which requires public entities to provide services to individuals with disabilities in the most integrated setting possible.¹²³Infra notes 129–133 and accompanying text.

The defendants argued that Title II is inapplicable in the sheltered workshop employment context.¹²⁴Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1202 (D. Or. 2012) (citing Zimmerman v. Or. Dep’t Just., 170 F.3d 1169, 1176 (9th Cir. 1999)).
Defendants claimed that, because ADA Title I applies to employment discrimination, applying Title II claims to sheltered workshop employment settings would make Title I superfluous.¹²⁵Zimmerman v. Or. Dep’t of Just., 170 F.3d 1169, 1172 (9th Cir. 1999).
The court disagreed, emphasizing that state placement in sheltered workshop employment or supported employment programs does not merely involve employment decisions.¹²⁶Lane, 841 F. Supp. 2d at 1202.
Rather, this placement is the provision of a state service, which resolves the redundancy issue.¹²⁷Id.
Accordingly, the court held that state placement of individuals with disabilities in sheltered workshops falls under the scope of ADA Title II.¹²⁸Id.

Consequently, the court also applied the Attorney General’s general integration mandate to disability employment services.¹²⁹Id. at 1202–06.
Under 28 C.F.R. § 35.130, the Attorney General requires public entities to provide services to individuals with disabilities in the most integrated setting for which the individual is eligible and qualified.¹³⁰28 C.F.R. § 35.130(d) (2016).
The mandate also requires public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.”¹³¹28 C.F.R. § 35.130(b)(7)(i) (2016).
Therefore, when a public entity has failed to provide the most integrated public service setting appropriate for individuals with disabilities pursuant to Section 35.130(d), the public entity must make reasonable modifications to integrate.¹³²Id. Although a Federal District Court in Georgia has struck down portions of section 35.130 for conflicting with the clear meaning of ADA Title II, the Lane court upheld portions of the section relevant to this integration mandate. Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1338–40 (N.D. Ga. 2017) (striking down 28 C.F.R. § 35.130(g)); Lane, 841 F. Supp. 2d at 1200–01 (affirming the applicability of 28 C.F.R. § 35.130(d)).
However, entities need not make changes that “would fundamentally alter the nature of the service, program, or activity.”¹³³28 C.F.R. § 35.130(b)(7)(i) (2016).

In its analysis, the Lane court relied upon the 1999 Olmstead v. L.C. decision, in which the Supreme Court issued its current interpretation of the integration mandate.¹³⁴Steven J. Schwartz, Robert D. Fleischner, Alexander Z. Schwartz & Emily M. Stephens, Realizing the Promise of Olmstead: Ensuring the Informed Choice of Institutionalized Individuals with Disabilities to Receive Services in the Most Integrated Setting, 40 J. Legal Med. 63, 64–65 (2020).
Specifically, the Supreme Court held that failing to place individuals with disabilities in the most integrated setting possible is discriminatory under the integration mandate.¹³⁵Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999).
The only instance where a state may place individuals with disabilities in a setting that is not “the most integrated setting” is where integration would “fundamentally alter” the public service.¹³⁶Id. at 595.
This exception applies only where (1) the state has a comprehensive plan to administer services, and those services involve a plan for moving individuals to a less restrictive setting “at a reasonable pace,”¹³⁷Id. at 606.
or (2) the provision of more integrated services would be “so costly as to require an unreasonable transfer” of resources from other individuals with disabilities.¹³⁸Brown v. District of Columbia, 928 F.3d 1070, 1078 (D.C. Cir. 2019) (“A State that cannot demonstrate it has such a plan in place, however, must make every modification to its policies and procedures requested by an institutionalized disabled individual who wishes to, and could, be cared for in the community, unless the modification would be so costly as to require an unreasonable transfer of the State’s limited resources away from other disabled individuals.”). Some circuits have found that a lack of such a comprehensive plan alone is sufficient to negate the fundamental alteration defense. See, e.g., Sanchez v. Johnson, 416 F.3d 1051, 1063–64 (9th Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 154–55 (3d Cir. 2005).
The Court ultimately held that states must provide more integrated treatment for individuals with disabilities where (1) state officials determine that the treatment is appropriate, (2) those receiving services do not oppose the treatment, and (3) “the placement can be reasonably accommodated” based on state resources.¹³⁹Brown, 928 F.3d at 1077.

However, in Lane, the defendants noted that no court had ever applied Olmstead in any context other than forced institutionalization of individuals with disabilities.¹⁴⁰Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1205 (D. Or. 2012).
Because sheltered workshop placement is fundamentally different from institutionalization, the Lane defendants argued that Olmstead was distinguishable and the integration mandate does not apply to employment services.¹⁴¹Memorandum of Law in Support of Defendants’ Motion to Dismiss at 1–2, Lane, 841 F. Supp. 2d 1199 (No. 3:12-cv-00138), 2012 WL 2282358.

The Lane court disagreed. It held that the integration mandate did not apply to only instances of institutionalization.¹⁴²Lane, 841 F. Supp. 2d at 1205.
Rather, the integration mandate applies to all public entity activities that Title II covers.¹⁴³Id. at 1205 n.3 (citing Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)).
The court further emphasized similarities between the issue in Olmstead and sheltered workshop settings.¹⁴⁴Id. at 1205.
Like institutionalization, improper placement in sheltered workshops “perpetuates unwarranted assumptions that persons so isolated [in sheltered workshops] are incapable or unworthy of participating in community life.”¹⁴⁵Id. (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999)).
Similarly, improper placement in sheltered workshops “diminishes the everyday life activities of individual[s with disabilities], including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”¹⁴⁶Id. (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600–01 (1999)).
Furthermore, although the defendants noted that the state did not “force” the plaintiffs to work in sheltered workshops, the court recognized that unnecessary segregation alone is sufficient to invoke the integration mandate.¹⁴⁷Id. at 1205–06.

Ultimately, in the battle over whether ADA Title II and the Attorney General’s integration mandate apply to sheltered workshop programs, plaintiffs emerged with a decisive doctrinal victory in Lane.¹⁴⁸Id. at 1206.

B. The Lane Rule for State Sheltered Workshop Policies

Despite this victory for plaintiffs on the applicability issue, the Lane court still determined that the remedy the plaintiffs sought was impermissible under Title II because it required the state to provide an entirely new service.¹⁴⁹Id. at 1208. Title II does not require states to provide “adequate” services, instead prohibiting the “discriminatory denial of services.” Id. at 1207 (quoting Buchanan v. Maine, 469 F.3d 158, 174–75 (1st Cir. 2006)). Because portions of the plaintiffs’ complaint alleged that Oregon violated Title II by failing to offer certain disability employment services, the court granted the defendants’ motion to dismiss and gave the plaintiffs leave to amend. Id. at 1206, 1208.
Consequently, the court granted the defendants’ motion to dismiss without prejudice.¹⁵⁰Id. at 1208.
Ultimately, the parties reached a settlement agreement before the court could rule on the merits of an amended complaint.¹⁵¹Lane v. Brown, 166 F. Supp. 3d 1180, 1185–86, 1193 (D. Or. 2016).

Nevertheless, the Lane court created a rule for applying Title II and the integration mandate to sheltered workshops—providing future plaintiffs a clearer path to victory.¹⁵²See Lane, 841 F. Supp. 2d at 1206–08.
Based on the court’s earlier finding that a failure to provide integrated services is discriminatory, the court held that those who “meet the eligibility requirements for a particular program and are willing participants may properly allege a claim for a denial of the services provided by a program” under Title II.¹⁵³Id. at 1205, 1207.
Accordingly, the Court indicated that the plaintiffs could have filed a colorable claim under ADA Title II that Oregon “unjustifiably favor[ed] segregated employment in sheltered workshops” by underfunding existing integrated employment services.¹⁵⁴Id. at 1207–08.

Therefore, Lane stands for the proposition that, where the state provides integrated employment services alongside sheltered workshop services, the state must “provide a choice of integrated employment services to [eligible] individuals with disabilities.”¹⁵⁵Rinaldi, supra note 21, at 773 (emphasis added).
Admittedly, this language was merely dicta.¹⁵⁶The discussed Lane language was not necessary for the court’s grant of defendants’ motion to dismiss. Compare Lane, 841 F. Supp. 2d at 1208 (granting defendants’ motion to dismiss due to shortcomings in plaintiffs’ complaint), with Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 959 (2005) (noting that, where a part of an opinion is unnecessary for its conclusion, it is dicta and not precedential).
Nevertheless, because the U.S. Department of Justice (DOJ) intervened in Lane before the parties settled¹⁵⁷Lane v. Brown, 166 F. Supp. 3d 1180, 1186 (D. Or. 2016).
to “vindicate the rights of thousands of individuals with [intellectual and developmental disabilities] across Oregon,”¹⁵⁸Press Release, Justice Department Reaches Landmark Settlement Agreement with State of Oregon Regarding Americans with Disabilities Act, U.S. Dep’t of Just., Off. of Pub. Affs. (Dec. 30, 2015), https://www.justice.gov/opa/pr/justice-department-reaches-landmark-settlement-agreement-state-oregon-regarding-americans [perma.cc/S6MJ-3X8Q].
this language has real force.¹⁵⁹See, e.g., Consent Decree, United States v. Rhode Island, No. CA14-175 (D.R.I. Apr. 9, 2014) (showing DOJ enforcement of Lane rule violation against Rhode Island).
The settlement agreement essentially forced Oregon to meet the new Lane rule,¹⁶⁰See Press Release, U.S. Dep’t of Just., Off. of Pub. Affs., supra note 158; Brown, 166 F. Supp. 3d at 1187.
signaling to other states that the DOJ would enforce the Lane court’s interpretation of Title II.¹⁶¹See, e.g., Consent Decree, supra note 159; cf. Melia Preedy, Note, Subminimum or Subpar? A Note in Favor of Repealing the Fair Labor Standards Act’s Subminimum Wage Program, 37 Seattle U. L. Rev. 1097, 1103 n.43 (2014) (noting that the Lane decision enforced the integration mandate in all employment services, presumably including all sheltered workshop services).
Subsequent courts have also cited the Lane court’s interpretation positively, strengthening the idea that Title II applies to sheltered workshop policies.¹⁶²See, e.g., Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 1027–28 (D. Minn. 2016); E.B. ex rel. M.B. v. Cuomo, 16-CV-735, 2020 WL 3893928, at *8 (W.D.N.Y. July 11, 2020); Jackson v. Los Lunas Ctr. for Persons with Developmental Disabilities, Civ. No. 87-0839 JP/KBM, 2012 WL 13076262, at *77 (D.N.M. Oct. 12, 2012). The Seventh Circuit has taken a minority view that the Olmstead interpretation of the integration mandate applies only where individuals are institutionalized. See, e.g., Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 874 (7th Cir. 2013).
Even supporters of sheltered workshops appear to concede that Title II applies to sheltered workshops.¹⁶³E.g., Armsby, supra note 85, at 456–60, 462 (arguing for a limited application of Lane v. Kitzhaber but recognizing that “[c]ourts should follow the lead of Lane v. Kitzhaber and apply Olmstead to Title II claims against sheltered workshop placements”).

Multiple challenges to state sheltered workshop policies under Lane have resulted in settlement,¹⁶⁴See, e.g., Consent Decree, supra note 159 (describing a settlement agreement ending a challenge under Lane to Rhode Island’s sheltered workshop services).
so courts have not yet affirmed Lane’s finding that Title II requires states to adequately fund existing employment services.¹⁶⁵See Rinaldi, supra note 21, at 773.
Nevertheless, at least one court has cited this provision positively.¹⁶⁶Steward v. Roppe Corp., No. 3:18-cv-2905, 2020 WL 6685305, at *5 (N.D. Ohio Nov. 12, 2020).
Further, courts citing Lane have interpreted it expansively.¹⁶⁷See, e.g., Guggenberger, 198 F. Supp. 3d at 1027–28 (applying Lane based on the ADA’s “broad language and remedial purposes” (quoting Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1205 (D. Or. 2012))).
Accordingly, the DOJ and courts in subsequent decisions have indicated that Lane’s language has sway.

Thus, under Lane, where a state provides disability employment services, Title II and the integration mandate require the state to fund disability employment services such that individuals with disabilities may avail themselves of the most integrated services for which they are eligible.¹⁶⁸Rinaldi, supra note 21, at 773.

C. Strengths and Shortcomings of the Lane Rule

Lane has encouraged states to provide relatively more integrated disability employment services for individuals with disabilities.¹⁶⁹See, e.g., Consent Decree, supra note 159 (discussing a settlement pursuant to Lane under which the state of Rhode Island agreed to increase its provision of integrated employment services for individuals with disabilities to avoid a lawsuit under the Lane rule).
Specifically, the decision has encouraged some states to provide integrated disability employment services to a greater number of individuals with disabilities to avoid a potential lawsuit. Following Lane, Oregon entered a settlement agreement to avoid further litigation.¹⁷⁰Lane v. Brown, 166 F. Supp. 3d 1180, 1193 (D. Or. 2016).
The settlement agreement required Oregon to go even further than Lane, preventing future state placements in sheltered workshops and requiring the state to encourage individuals with disabilities to obtain integrated employment opportunities.¹⁷¹Compare supra Section II.B (describing the Lane rule for sheltered workshop employment), with Brown, 166 F. Supp. 3d at 1187 (describing the settlement agreement between plaintiffs and the state of Oregon).
Similarly, after facing a federal lawsuit based on Lane’s language,¹⁷²Complaint, United States v. Rhode Island, No. 1:14-cv-00175 (D.R.I. Apr. 8, 2014).
Rhode Island entered a consent decree to encourage more integrated employment opportunities for individuals with disabilities.¹⁷³Consent Decree, supra note 159.
Thus, the Lane rule has expanded integrated employment opportunities for individuals with disabilities.

However, Lane and its progeny have not fully achieved the promise of the integration mandate, falling short of Title II’s demands.¹⁷⁴See 28 C.F.R. § 35.130(d) (2023).
The integration mandate requires states to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”¹⁷⁵Id.
However, under Lane, states need not actually achieve maximal integration in existing disability employment services.¹⁷⁶See Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1206–08 (D. Or. 2012).
Rather, they merely require that all individuals with disabilities have the option to receive integrated services where those individuals qualify and choose to participate in those services.¹⁷⁷Id.

By placing the onus of finding and selecting integrated employment services on individuals with disabilities themselves, Lane falls short of ensuring that individuals with disabilities can access the most integrated employment service setting for which they are qualified. Lane requires only that states give individuals with disabilities an initial choice among state-offered disability employment services.¹⁷⁸See id. at 1203–04.
It does not require that states provide adequate information or support to individuals with disabilities to make informed decisions regarding employment.¹⁷⁹See id. at 1202–08.

Although state officials must allow individuals with disabilities to choose integrated employment opportunities,¹⁸⁰Id. at 1205, 1207.
many families of individuals with disabilities have indicated that in practice, state officials discourage individuals with disabilities from pursuing integrated employment opportunities and instead encourage participation in sheltered workshops.¹⁸¹Migliore et. al., supra note 82, at 34.
This practice among state disability employment service providers prevents individuals with disabilities from receiving disability employment services based only on their preferences and qualifications.¹⁸² Nat’l Disability Rts. Network, supra note 26, at 21.
Instead, individuals with disabilities face pressure to accept state service providers’ recommendations and acquiesce to sheltered workshop placement.¹⁸³Id.

Further, although sheltered workshop employees may technically choose to leave to pursue integrated employment, economic, psychological, and societal systemic barriers prevent individuals with disabilities from transitioning to integrated employment opportunities.¹⁸⁴Supra notes 85–90 and accompanying text.
Sheltered workshops also profit substantially from paying their employees subminimum wages, discouraging sheltered workshops from fulfilling their mandate of helping their employees transition to other workplaces with integrated employment opportunities.¹⁸⁵See Nat’l Disability Rts. Network, supra note 26, at 9 (describing the means through which sheltered workshops profit from subminimum wage payments, reducing their incentive to lose employees to integrated employment).
Thus, although most sheltered workshop employees wish to pursue integrated employment opportunities, they remain in sheltered workshops¹⁸⁶Migliore et. al., supra note 81, at 12–13.
despite the integration mandate’s requirements.¹⁸⁷See 28 C.F.R. § 35.130 (2023); Americans with Disabilities Act, 42 U.S.C. §§ 12131–12165.

Even under Lane’s interpretation of the integration mandate, individuals with disabilities still cannot fully take advantage of integrated employment services for which they are qualified. Without expanding Lane, the courts will never fully implement ADA Title II and the integration mandate.¹⁸⁸See 28 C.F.R. § 35.130(d) (2016) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”).

Recommended Expansion of the Lane Rule

Even though Lane fails to fully achieve the integration mandate’s requirements, courts cannot independently eliminate sheltered workshops under Title II.¹⁸⁹See Tyler v. Smith, 472 F. Supp. 2d 818 (M.D. La. 2006) (upholding a Louisiana law supporting sheltered workshops against challenge under the ADA and Rehabilitation Act).
Thus, courts should expand Lane to require states to actively promote the transition of individuals with disabilities to preexisting supported or otherwise-integrated employment from sheltered workshops.

Expanding Lane

As discussed above, ADA Title II and the integration mandate require states to provide employment services “in the most integrated setting” possible.¹⁹⁰28 C.F.R. § 35.130(d) (2016).
To achieve this goal, states must remove systemic barriers¹⁹¹See supra notes 86–88 and accompanying text.
that prompt individuals to instead choose sheltered workshops, even when they may prefer an integrated work environment. The Lane court acknowledged this goal and interpreted Title II, stating that “[s]eparate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”¹⁹²Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1204 (D. Or. 2012) (emphasis omitted) (quoting Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 8538, 8543 (proposed Feb. 28, 1991)).
However, under the current Lane rule, the mere existence of state-level sheltered workshop programs restricts individuals with disabilities from choosing integrated employment services.¹⁹³Supra notes 86–90 and accompanying text.
By investing their limited resources for disability employment services in sheltered workshops, states effectively stifle individuals’ agency to choose an integrated employment option.

Currently, a substantial number of disability employment service providers fail to adequately inform individuals with disabilities about integrated employment services.¹⁹⁴Migliore et. al., supra note 82, at 34; Nat’l Disability Rts. Network, supra note 26, at 21.
Thus, because systemic barriers disproportionately restrict individuals with disabilities to sheltered workshops, requiring states to actively promote the transition of individuals with disabilities to supported or integrated employment programs from sheltered workshops would better apply ADA Title II to state disability employment programs.

This Note intentionally provides only a broad proposed Lane expansion that states “promote” integrated employment services. After all, for states to serve as “laborator[ies]” innovating improved ways to comply with the integration mandate, they must have the latitude to do so.¹⁹⁵See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

Nevertheless, some states have already implemented or proposed laws that would meet the expanded Lane rule. For example, under the 2023 Missouri Employment First Act, state agencies providing disability employment services must, among other things, highlight integrated employment opportunities as preferred employment opportunities when providing disability employment services; provide information to “all working-age persons with disabilities” on benefits available to integrated employment workers and assistive technology; provide information on educational and technical opportunities that could lead to integrated employment; and provide the same information to the family of youth with disabilities.¹⁹⁶ Mo. Rev. Stat. § 209.700 (2023).
In doing so, Missouri has ensured that state disability employment service providers must actively and consistently encourage integrated employment, thereby meeting the proposed Lane rule.¹⁹⁷See id.

Similarly, the New York legislature has considered a bill that would require disability employment service providers to (1) provide vocational assessments every five years to ensure that individuals with disabilities are in the best possible setting; (2) require trial integrated work experiences every five years so individuals with disabilities can fully understand the range of integrated employment opportunities for which they are qualified; and (3) provide outreach, education, and support services to ensure every sheltered workshop employee receives information on supported employment.¹⁹⁸Employment First Choice Act, Assemb. 5391, 2021–2022 Reg. Sess. (N.Y. 2021). The bill was reintroduced in the most recent New York legislative session. Employment First Choice Act, Assemb. 3345, 2023–2024 Reg. Sess. (N.Y. 2023).
If enacted, this bill would consistently present information about integrated employment opportunities and their benefits to individuals with disabilities, meeting the proposed Lane expansion by promoting and encouraging integrated disability employment programs.¹⁹⁹See Employment First Choice Act, Assemb. 5391, 2021–2022 Reg. Sess. (N.Y. 2021).

Additionally, that federal regulations require states to promote certain programs is not a novel concept. Courts have already stated that the ADA imposes affirmative obligations on states to make reasonable accommodations for individuals with disabilities.²⁰⁰See, e.g., United States v. Mississippi, 400 F. Supp. 3d 546, 554 (S.D. Miss. 2019).
Thus, the proposed Lane expansion is precedented.

Because those transitioning from sheltered workshops to integrated employment face unique economic, psychological, and societal barriers, this proposed expansion of Lane is necessary to allow individuals with disabilities an equal opportunity to choose integrated disability employment programs.

Psychologically, sheltered workshops can contribute to relatively low self-esteem, isolation, and fear that a worker cannot be successful in an integrated employment setting, all of which impose psychological barriers to transitioning to integrated employment.²⁰¹Supra notes 86–88 and accompanying text.
If disability employment service providers actively promote integrated employment services by describing their benefits and potential outcomes, qualified individuals with disabilities will likely feel more confident pursuing integrated employment opportunities. Such promotion would minimize the current systemic psychological barriers that effectively give preference to sheltered workshops over integrated employment.

Further, because stigma against individuals with disabilities limits the extent to which many employers will hire individuals from sheltered workshops,²⁰²Id.
promotion of integrated employment opportunities is necessary to preserve the ability of individuals with disabilities to choose integrated employment. This stigma may prevent individuals with disabilities from even seeking integrated employment opportunities.²⁰³Id.
However, employers participating in supported and other integrated employment programs have reacted positively to the impact of hiring workers with disabilities.²⁰⁴See Debra Martin Petty & Elizabeth M. Fussell, Employer Attitudes and Satisfaction with Supported Employment, 12 Focus on Autism & Other Developmental Disabilities 15, 16–18 (1997).
In fact, multiple employers reported that employees with disabilities in integrated settings were particularly loyal, punctual, and successful workers.²⁰⁵Lindsay S. Athamanah et al., Employers’ Perspectives on Individuals with IDD in Community Integrated Employment Settings: A Scoping Review, 10 Inclusion 226, 240 (2022).
By promoting these programs, state disability employment service providers would reduce perceived societal barriers preventing sheltered workshop employees from transitioning to integrated employment.

Admittedly, this proposed rule does not remove the economic barriers to transitioning from sheltered workshops to integrated employment. Low sheltered workshop wages still lead individuals with disabilities to become dependent on government benefits.²⁰⁶For a discussion of the economic limitations on transitioning from sheltered workshops to integrated employment, see supra note 86 and accompanying text.
Consequently, individuals with disabilities interested in shifting to integrated employment risk losing their benefits without an integrated employment opportunity immediately guaranteed.²⁰⁷Supra note 86 and accompanying text.
The proposed expansion, however, would at least give individuals with disabilities the knowledge that they are eligible for integrated employment, allowing these individuals to transition to integrated employment whenever financially prudent.²⁰⁸See Nettles, supra note 17, at 22 (noting that encouraging integrated employment gives individuals with disabilities an opportunity to earn a competitive wage).

Notably, Title II does not require states to provide additional services; it requires only that states refrain from discrimination based on disability when providing services.²⁰⁹Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1207 (D. Or. 2012).
Because every state already provides supported employment services,²¹⁰Supra notes 19–21 and accompanying text (noting that every state provides integrated employment services, which are more integrated than sheltered workshops).
new services are not necessary to ensure that disability employment service providers can promote integrated employment opportunities under this solution. Thus, the proposed expansion of Lane does not violate the Supreme Court’s interpretation of Title II.

By expanding Lane to require state service providers to actively promote integrated employment opportunities, courts would ensure that states follow the integration mandate—all qualified individuals with disabilities would, in practice, actually be able to access integrated employment should they desire it.

B. Permissibility of Sheltered Workshops Under Proposed Expansion

Opponents of this expanded Lane rule may argue that it would effectively prohibit sheltered workshops, which would violate Title II.²¹¹For a discussion of sheltered workshops’ permissibility under ADA Title II, see Tyler v. Smith, 472 F. Supp. 2d 818, 825–26 (M.D. La. 2006).
Indeed, encouraging individuals with disabilities to transition from sheltered workshop programs to integrated employment programs led to the eventual elimination of sheltered workshops in Vermont.²¹² Sulewski, supra note 93, at 1–2.

However, that argument presumes a false dichotomy. In reality, states can—and do—encourage integrated employment while still providing sheltered workshops services, as demonstrated in the aforementioned Missouri law²¹³See Mo. Rev. Stat. § 209.700(4)(1), 700(7) (Supp. 2023).
and proposed New York law.²¹⁴See Employment First Choice Act, Assemb. 5391, § 3, 2021–2022 Reg. Sess. (N.Y. 2021).
Although Missouri ensures that disability employment service providers encourage integrated employment services,²¹⁵See Mo. Rev. Stat. § 209.700 (Supp. 2023).
the state still allows and funds sheltered workshops.²¹⁶ Mo. Code Regs. Ann. tit. 5 § 20-300.160(2) (2023).
Consequently, Missouri’s active encouragement of integrated employment has not eliminated sheltered workshops in the state.

Similarly, although the New York bill encourages individuals in sheltered workshops to pursue supported employment services,²¹⁷Employment First Choice Act, Assemb. 5391, 2021–2022 Reg. Sess. (N.Y. 2021).
its language neither prohibits nor discourages individuals with disabilities from using sheltered workshop services if they so desire.²¹⁸See id.
Instead, the bill is autonomy-enhancing, offering a glimpse at how, in practice, a state may simultaneously promote integrated employment while preserving the right of individuals with disabilities to choose sheltered workshop employment.²¹⁹See id. at § 3.

C. Consistency with the Fundamental Alteration Exception

Opponents may also argue that the proposed Lane expansion is inconsistent with the integration mandate’s fundamental alteration provision.²²⁰See 28 C.F.R. § 35.130(b)(7)(i) (2016) (noting that public entities need not alter their programs to avoid discrimination where “the modifications would fundamentally alter the nature of the service, program, or activity”).
In Olmstead, the Supreme Court held that the integration mandate requires public entities to make reasonable modifications—not fundamental alterations—to prevent discrimination in public programs.²²¹Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 603–04 (1999) (plurality opinion).
Encouraging individuals with disabilities to use integrated employment services would likely increase the number of individuals using such services,²²²See supra Section III.A.
thereby shifting state resources to integrated employment programs.²²³Cf. Brief for Petitioners, Olmstead, 527 U.S. 581 (No. 98-536), 1999 WL 54623, at *12 (arguing that integrating public services would impose a substantial cost on the state).
If the court construed the “fundamental alteration” defense broadly, such that a change in funding would constitute a fundamental alteration, a state could seek to rely on the fundamental alteration defense to avoid compliance.²²⁴Cf. id. (arguing that the cost and limitations of requiring integrated services would fundamentally alter the structure of a public service).

However, the Olmstead plurality construed the fundamental alteration exception to apply in only two, narrow circumstances: (1) when compliance with the integration mandate would interfere with a comprehensive plan to move individuals with disabilities to a more integrated setting or (2) where the cost of compliance would deprive other individuals with disabilities of services.²²⁵See Olmstead, 527 U.S. at 604–06 (plurality opinion).
Here, states would not have to spend additional money on consultation services, as each state already has a vocational rehabilitation agency that provides the consultation services necessary for the proposed Lane expansion.²²⁶State Vocational Rehabilitation Agencies, Rehab. Servs. Admin., https://rsa.ed.gov/about/states [perma.cc/9TR4-BAKQ].
Further, because states under Lane cannot prevent individuals with disabilities from shifting to integrated workplaces, an expanded Lane rule should not harm existing state disability employment plans.²²⁷See Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1203–04 (D. Or. 2012).
Thus, the proposed Lane expansion would not force states to incur expenses that violate the fundamental alteration provision of the Attorney General’s integration mandate.

Conclusion

Although Lane has improved the likelihood that interested and qualified individuals with disabilities can access integrated disability employment opportunities, Lane and its progeny have fallen short of Title II and the integration mandate’s promise: providing individuals with disabilities the most integrated employment service setting possible.²²⁸Supra Section II.C.

Sheltered workshops have been the subject of substantial legislative scrutiny in recent years.²²⁹See supra Section I.C.
Some experts envision a future where all workers with disabilities find integrated employment opportunities and sheltered workshops are a relic of the past.²³⁰See generally, e.g., Nat’l Disability Rts. Network, supra note 26.
Others argue that sheltered workshops should continue to receive state and federal support as a viable disability employment program.²³¹E.g., Armsby, supra note 85, at 468–69.
Regardless of one’s policy views toward sheltered workshops, current federal law has prioritized providing the most integrated employment services possible for individuals with disabilities.²³²Supra Section I.B.
By expanding Lane as far as the Olmstead doctrine permits, courts can move toward a better, autonomy-enhancing future in which individuals with disabilities have a real, material choice between employment in sheltered workshops and integrated workplaces.

* J.D. Candidate, May 2025, University of Michigan Law School. I would like to thank my parents, John and Nancy Farmer, and my fiancée, Lily Jones, for their constant support throughout the writing process, Professor J.J. Prescott for his wisdom, guidance, and advice on this Note, Professor Christopher Bollinger for first inspiring my interest in academic research, and the countless others who helped make this Note a reality. Special thanks to Alexander J. Izbiky, Kavitha N. Babu, Sara E. Shapiro, Jiadi “Lulu” Qian, Salvatore J. Guido, Jeesae Kim, Peter G. VanDyken, Alexander M. Porter, J. Arthur Etter, Sunita Ganesh, Jack G.Z. Webb, and Heather Foster, whose tireless efforts helped improve this Note immensely.