Call 1-800-949-4ADA
for Technical Assistance
The U.S. Equal Employment Opportunity Commission
EEOC NOTICE
Number 915.002
Date 2-12-97
1. SUBJECT: EEOC Enforcement Guidance
on the Effect of Representations
Made in Applications for Benefits on
the Determination of Whether a Person
Is a "Qualified Individual with a Disability"
Under the Americans with
Disabilities Act of 1990 (ADA).
2. PURPOSE: This enforcement guidance
sets forth the Commission's position
that representations made in connection
with an application for disability
benefits should not be an automatic bar
to an ADA claim.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to
EEOC Order 205.001, Appendix B,
Attachment 4, § a(5), this Notice
will remain in effect until rescinded or
superseded.
5. ORIGINATOR: ADA Division, Office of Legal Counsel
6. INSTRUCTIONS: File after Section 902
of Volume II of the Compliance
Manual.
/S/
___________________
___________________________________
Date
Gilbert F. Casellas
Chairman
Table of Contents
Executive Summary
Introduction
I. The ADA's Purposes and Standards Are
Fundamentally Different from the
Purposes and Standards of Other Statutory
Schemes and Contractual Rights.
A. Americans with Disabilities Act
1. Purposes
2. Standards
B. Other Statutory Schemes and Contractual Rights
1. Social Security Act
2. Workers' Compensation
3. Disability Insurance Plans
C. Analysis
1. The ADA Definition of "Qualified Individual with a
Disability" Always Requires an Individualized
Assessment of the Particular Individual and the
Particular Position; Other Definitions Permit
Generalized Inquiries and Presumptions.
2. The ADA Definition of "Qualified Individual with a
Disability" Requires Consideration of Reasonable
Accommodation; Other Definitions Do Not Consider
Whether an Individual Can Work with Reasonable
Accommodation.
II. Because of the Fundamental Differences
Between the ADA and Other
Statutory and Contractual Disability Benefits
Programs, Representations
Made in Connection with an Application
for Benefits May Be Relevant to --
but Are Never Determinative of -- Whether
a Person Is a "Qualified
Individual with a Disability."
A.
Representations Made in Connection with an Application for
Disability Benefits Are Not Determinative of Whether a
Person Is a "Qualified Individual with a Disability."
1. Judicial Estoppel
2. Summary Judgment
B.
A Determination of What, if Any, Weight to Give to
Representations Made in Support of Applications for
Disability Benefits Depends on the Context and Timing of
the Representations.
1. Context
2. Timing
III. Public Policy Supports the Conclusion
that Representations Made in
Connection with an Application for Disability
Benefits Are Never an
Absolute Bar to an ADA Claim.
A.
Permitting Individuals to Go Forward with Their ADA Claims
Is Critical to the ADA's Goal of Eradicating
Discrimination Against Individuals with Disabilities.
B.
Individuals Should Not Have to Choose Between Applying for
Disability Benefits and Vindicating Their Rights Under the
ADA.
IV. Instructions to Investigators
Executive Summary: Enforcement Guidance
on the Effect of Representations
Made in Applications for Benefits on the
Determination of Whether a Person
Is a "Qualified Individual with a Disability"
Under the Americans with
Disabilities Act of 1990 (ADA or Act)
--------------------------------
Introduction
This
Enforcement Guidance explains why representations about the
ability to work made in the course of applying
for social security,
workers' compensation, disability insurance,
and other disability benefits
do not bar the filing of an ADA charge.
It provides instructions to EEOC
investigators for assessing what weight,
if any, to give to such
representations in determining whether
a charging party (CP) is a
"qualified individual with a disability"
for purposes of the ADA.
A
"qualified individual with a disability" is "an individual with
a
disability who satisfies the requisite
skill, experience, education and
other job-related requirements of the employment
position such individual
holds or desires and who, with or without
reasonable accommodation, can
perform the essential functions of such
position." Because of the
fundamental differences in the definitions
used in the ADA and the terms
used in disability benefits programs, an
individual can meet the
eligibility requirements for receipt of
disability benefits and still be a
"qualified individual with a disability"
for ADA purposes. Thus, a
person's representations that s/he is "totally
disabled" or "unable to
work" for purposes of disability benefits
are never an absolute bar to an
ADA claim.
Americans with Disabilities Act
The
definition of the term "qualified individual with a disability"
reflects the ADA's broad remedial purpose
to prohibit discrimination
against individuals with disabilities who
want to work and are qualified
to work. Accordingly, the definition:
•
requires an individualized assessment of a particular individual's
capabilities;
• focuses on the essential functions of a particular position;
• looks at particular positions, not work in general; and
•
considers whether a person can work with reasonable
accommodation.
The
ADA definition of "qualified individual with a disability"
differs from the definitions used in the
Social Security Act, state
workers' compensation laws, disability
insurance plans, and other
disability benefits programs designed for
different purposes.
Social Security Act
Disability
programs established under the Social Security Act are
designed to provide income to individuals
with disabilities who generally
are unable to work. Unlike the ADA
definition of "qualified individual
with a disability," the Social Security
Administration (SSA) definition of
"disability":
•
permits general presumptions about an individual's ability to
work;
•
considers all tasks as jobs are customarily performed without
focusing on the essential functions of a particular position;
•
looks generally at whether an individual can do work which
exists in the national economy rather than whether s/he can
perform the essential functions of a particular position; and
•
does not consider whether a person can work with reasonable
accommodation.
Workers' Compensation Laws
The
purpose of workers' compensation laws is to provide benefits to
individuals whose earning capacity has
been reduced because of a
work-related injury or illness. Unlike
the ADA definition of "qualified
individual with a disability," the workers'
compensation definitions of
"disability" generally:
•
permit generalized presumptions about an individual's ability
to work;
• do not distinguish between marginal and essential functions;
•
focus on whether an individual is unable to do any kind of work
for which there is a reasonably stable employment market rather
than whether s/he can perform the essential functions of a
particular position; and
•
do not consider whether an individual can work with reasonable
accommodation.
Disability Insurance Plans
Disability
insurance plans provide partial wage replacement when an
employee becomes unable to work as a result
of illness, injury, or
disease. Frequently, the definitions
of "disability" under such plans:
•
do not distinguish between essential and marginal functions of
a position; and
•
make no allowance for an individual's ability to work with
reasonable accommodation.
Relevant Factors for Determining Whether
CP Is a "Qualified Individual
with a Disability"
When
assessing the effect of representations made in connection with
an application for benefits on the determination
of whether CP is a
"qualified individual with disability,"
investigators should consider the
following factors:
•
the definitions of terms such as "disability," "permanent
disability," "total disability," "inability to work," etc.,
under the relevant statute or contract pursuant to which CP
applied for disability benefits (e.g., do they look at
specific positions or general kinds of work? do these terms
take into account reasonable accommodation?);
•
the specific content of the representations, who made them, and
the
purpose for which they were made;
• whether the representations are in CP's own words;
•
whether the representations about CP's inability to work are
qualified in any way (e.g., "I am able to work with certain
restrictions");
•
when the representations were made, the period of time to which
they refer, and whether CP's physical or mental condition has
changed since the representations were made;
•
whether CP was working during the period of time referred to as
a period of total disability;
• whether the employer suggested that CP apply for benefits;
• whether CP asked for and was denied reasonable accommodation;
• when the employer learned of the representations; and
•
other relevant factors, such as advances in technology or
changes in the employer's operations that may have occurred
since representations were made that may make it possible for
CP to perform the essential functions of the position, with or
without reasonable accommodation.
Enforcement Guidance: Effect of Representations
Made in Applications for
Disability Benefits on the Determination
of Whether a Person Is a
"Qualified Individual with a Disability"
Under the Americans with
Disabilities Act of 1990 (ADA)
Introduction
The
Americans with Disabilities Act of 1990 (hereinafter ADA or
Act)1 prohibits employers from discriminating
against qualified
individuals with disabilities in all aspects
of employment. To be
protected by the ADA, a person must meet
the definition of the term
"qualified individual with a disability."2
A "qualified individual with a
disability" is "an individual with a disability
who satisfies the
requisite skill, experience, education
and other job- related requirements
of the employment position such individual
holds or desires, and who, with
or without reasonable accommodation, can
perform the essential functions
of such position."3
The
issue of whether a person is a "qualified individual with a
disability" arises when an individual brings
an ADA claim alleging that
s/he was subjected to an adverse employment
action because of his/her
disability. For example, in many
charges received by the EEOC,
individuals claim that they were not hired
or were fired because of
disability even though they were able to
perform the essential functions
of the position at issue. Often,
the individual has requested but been
denied a reasonable accommodation.
Frequently, the individual also has
filed for disability benefits, sometimes
at the suggestion of the
employer, and has represented that s/he
meets the relevant eligibility
requirements (e.g., that s/he is "totally
disabled" or "unable to work").
In such cases, questions may arise as to
whether the individual is barred
from claiming that s/he is a "qualified
individual with a disability"
under the ADA.4
This
enforcement guidance explains why representations made in other
contexts about the ability to work are
not necessarily a bar to an ADA
claim.5 In this regard, the guidance:
•
analyzes the differences between the ADA's purposes and
standards and those of other statutory schemes, disability
benefits programs, and contracts;
•
discusses recent and significant court decisions that have
addressed this issue;
•
explains why the doctrine of judicial estoppel and summary
judgment procedures should not be used to bar the ADA claims of
individuals who have applied for disability benefits;
•
delineates why public policy supports the Commission's
position; and
•
explains how to assess what weight, if any, to give to such
representations in determining whether an individual is a
"qualified individual with a disability" for purposes of the
ADA.
I. The ADA's Purposes and Standards Are
Fundamentally Different from the
Purposes and Standards of Other Statutory
Schemes and Contractual Rights.
The
primary purposes underlying the ADA are the elimination of
barriers that prevent individuals with
disabilities from participating in
"the economic and social mainstream of
American life"6 and the provision
of equal employment and other opportunities
for persons with disabilities.
In addition, Congress enacted the ADA to
provide legal remedies to
individuals who have experienced discrimination
on the basis of
disability.7 Consistent with these goals,
the ADA establishes specific
standards for assessing whether an individual
has a disability and whether
s/he is a "qualified individual with a
disability."
Because
the ADA definitions of the terms "disability" and "qualified
individual with a disability" are tailored
to the broad remedial purposes
of the Act, they differ from the definitions
of the same or similar terms
used in other laws and benefits programs
designed for other purposes. The
definitions of the terms used in the Social
Security Act, state workers'
compensation laws, disability insurance
plans, and other disability
benefits programs are tailored to the purposes
of those laws and programs.
Therefore, representations made under those
laws and programs are not
determinative of coverage under the ADA.
Although representations made in
connection with an application for disability
benefits may be relevant to
such a determination, they are never an
absolute bar to a finding that a
person is a "qualified individual with
a disability" for purposes of the
ADA.
A. Americans with Disabilities Act
1. Purposes
The
ADA is a sweeping civil rights law designed "to provide a clear
and comprehensive national mandate for
the elimination of discrimination
against individuals with disabilities."8
It also is designed "to provide
clear, strong, consistent, enforceable
standards addressing discrimination
against individuals with disabilities."9
In
enacting the ADA, Congress made clear that "the Nation's proper
goals regarding individuals with disabilities
are to assure equality of
opportunity, full participation, independent
living, and economic
self-sufficiency for such individuals."10
Congress found that many of the
more than 43 million Americans with disabilities
"continually encounter
various forms of discrimination" and that
this invidious discrimination
"persists in such critical areas as employment.
. . ."11 Unlike other
discrete and insular minorities, however,
individuals with disabilities
"have often had no legal recourse to redress
such discrimination."12 As a
result, this discrimination and denial
of equal employment opportunity
have "cost[] the United States billions
of dollars in unnecessary expenses
resulting from dependency and nonproductivity."13
Accordingly,
Congress passed the ADA to enable individuals with
disabilities to participate fully in all
aspects of society, particularly
employment. Underlying the ADA is
the recognition that equal employment
opportunity is the only way that this country
can accomplish its "proper
goal" of ensuring economic self- sufficiency
for individuals with
disabilities. It is this fundamental
principle -- that individuals with
disabilities who want to work and are qualified
to work must have an equal
opportunity to work -- that guides the
Title I employment provisions of
the ADA.14
The
definition of the term "qualified individual with a disability"
reflects this principle and the broad remedial
purposes of the ADA. It
focuses on what an individual with a disability
can do, rather than on
what s/he cannot do.15 In addition, reflecting
the Act's focus on
individual rather than group characteristics,16
the definition requires an
individualized assessment of a person's
abilities. Moreover, the
definition looks at whether an individual
with a disability is qualified
for the specific position at issue, not
at whether s/he is qualified for
work in general.
2. Standards
Under the ADA, a "qualified individual with a disability" is
an
individual with a disability17 who satisfies the requisite skill,
experience,
education and other job- related requirements of the
employment
position such individual holds or desires, and, who, with
or
without reasonable accommodation, can perform the essential
functions
of such position.18
The
determination of whether an individual with a disability is
"qualified" should be made in two steps.19
The first step is to determine
if the individual has the education, training,
skills, experience, and
other job-related credentials for the position.
The second step is to
determine whether the individual can perform
the essential functions of
the position held or desired, with or without
accommodation.20 The purpose
of this second step is to ensure that individuals
with disabilities who
can perform a position's essential or fundamental
functions are not denied
employment opportunities simply because
they are not able to perform the
position's marginal or peripheral functions.21
The
determination of whether a person is a "qualified individual
with a disability" requires an individualized,
case-by- case assessment of
the specific abilities of the person, the
specific requirements of the
position that the person holds or desires,
and the manner in which the
person may be able or enabled to meet those
requirements.22 The issue is
whether a particular individual with a
disability is qualified for a
particular position, not whether the individual
or a group of individuals
with a disability is qualified for a class
of positions.23
Further,
the definition of the term "qualified individual with a
disability" expressly requires consideration
of whether the individual can
perform essential functions with reasonable
accommodation. The ADA
requires employers to provide reasonable
accommodation to the known
physical or mental limitations of otherwise
qualified individuals with
disabilities unless doing so would result
in undue hardship.24 This
reasonable accommodation requirement is
critical to achieving the goals of
the ADA.25
In
general, a reasonable accommodation is any change in the work
environment or in the way things are customarily
done that enables an
individual with a disability to enjoy equal
employment opportunities.26
Some of the most common accommodations
an employer may be required to
provide are job restructuring, part-time
or modified work schedules,
modifications of equipment or devices,
and other similar accommodations.27
The
assessment of whether an individual with a disability is
qualified should be based on the capabilities
of the individual with a
disability at the time of the employment
decision. It should not be based
on speculation that the individual may
become incapacitated in the
future.28
B.
Other Statutory Schemes and Contractual Rights
1. Social Security Act
The
Social Security Act establishes a social insurance program
designed to provide guaranteed income to
individuals with disabilities
when they are found to be generally incapable
of gainful employment. Its
purpose is to provide a basic level of
financial support for people who,
because of disability, cannot support themselves.
In adding disability as
a basis for benefits administered by the
Social Security Administration
(SSA) in 1956, Congress recognized society's
obligation to provide
assistance to people whose disabilities
prevent them from achieving
economic self-sufficiency.29
The
SSA definition of the term "disability," therefore, reflects the
obligation to provide benefits to people
who generally are unable to work.
As a result, the definition focuses on
what a person cannot do and on
whether s/he cannot find work in the national
economy in general.
To
receive SSA disability benefits, an individual must prove that
s/he is disabled under the Social Security
Disability Insurance (SSDI) or
the Supplemental Security Income (SSI)
program.30 The essential
requirement for both programs is that the
claimant be unable to engage in
"any substantial gainful activity by reason
of any medically determinable
physical or mental impairment which can
be expected to result in death or
which has lasted or can be expected to
last for a continuous period of not
less than 12 months."31 Under the statute,
a person is entitled to
disability benefits if his/her impairment
is "of such severity that [s/he]
is not only unable to do [his/her] previous
work but cannot, considering
[his/her] age, education, and work experience,
engage in any other kind of
substantial gainful work which exists in
the national economy."32
The
SSA itself, however, recognizes that an individual may be found
to be unable to engage in substantial gainful
activity and yet still may
be able to work in a particular position.
Although the SSA program is
designed to provide a guaranteed income
to individuals who are found to
meet SSA disability eligibility criteria,
Congress has recognized the
importance of encouraging individuals with
disabilities to work whenever
possible.33 Accordingly, the Social Security
Act contains numerous work
incentive provisions. For example,
the SSA has a trial work period that
allows beneficiaries to work for nine months
while their benefit
entitlement and payment levels remain unchanged.34
Similarly, the SSA has
an extended period of eligibility that
provides individuals who return to
work with benefits in any month in which
earnings fall below a statutory
level.35 Thus, even the SSA does not view
a person who meets its
definition of "disability" as someone who
is totally unable to work.
To determine if an individual meets the SSA definition of
"disability," the SSA uses a sequential
evaluation process.36 This
five-step process requires the SSA to ask
the following questions:
(1)
Is the claimant currently engaging in "substantial gainful
activity"?37 (If the answer is yes, the claim is denied; if
the answer is no, the claim continues to the next step.)
(2)
Does the claimant have a "severe" impairment? (If the answer
is no, the claim is denied; if the claimant has an impairment
that significantly limits his/her ability to work -- that is,
it is "severe" -- the claim continues to step 3.)
(3)
Does the claimant have an impairment that is equivalent to
any impairment the SSA has listed as so severe that it
automatically precludes substantial gainful activity? (If
the claimant has an impairment that is medically the
equivalent of a listed impairment, the claimant is presumed
disabled by the SSA and benefits are granted; if the claimant
does not have a listed impairment, the claim proceeds to step
4.)
(4)
Does the impairment prevent the claimant from performing
his/her "past relevant work"?38 (If the claimant can perform
his/her past relevant work, the claim is denied; if the
claimant cannot perform such work, the claim continues to
step 5.)
(5)
Does the impairment prevent the claimant from performing any
other type of work? (If the SSA determines that the claimant
is able to perform other work which exists in the national
economy,39 the claim is denied; if the SSA determines that
the claimant is unable to perform any work, considering
his/her age, education, and past work experience, benefits
are granted.)
The SSA acknowledges the differences between its standards and
those of other statutory schemes.
In that regard, SSA regulations note
that a decision by any other entity about
whether an individual is
disabled is based on the other entity's
rules and may not be the same as
the SSA's determination, which is based
on social security law.40
The
SSA definition of "disability" is inherently different from the
ADA definition of "qualified individual
with a disability." First,
whereas the ADA always requires an individualized
inquiry into the ability
of a particular person to meet the requirements
of a particular position,
the SSA permits general presumptions about
an individual's ability to
work. In that regard, the SSA considers
some conditions to be
presumptively disabling. If a claimant
has an impairment that is
medically the equivalent of a listed impairment,
then the SSA presumes
that the disorder is so severe as to prevent
the claimant from doing any
substantial gainful activity, without considering
his/her age, education,
and past work experience.41 Thus, an individual
can have a "disability"
under the SSA definition and yet in fact
still be able to work.
Second, in determining whether a person meets the SSA definition
of disability, the SSA looks at the customary
requirements of jobs as
usually performed in the national economy
without focusing on the
essential functions of a particular position.42
All tasks required to
perform the job are considered with no
distinction made between
fundamental and peripheral functions.43
Thus, a person who is able to
perform the essential functions of a particular
position, but not the
marginal functions, may be found to be
unable to work and eligible for
disability benefits. Accordingly,
the SSA's determination that a person
is unable to engage in any substantial
gainful activity in the national
economy does not mean that there is no
job the person can perform. The
person still may be able to perform the
essential functions of a
particular position.
Third,
unlike the ADA definition, the SSA definition does not
consider whether the individual can work
with reasonable accommodation.
An SSA interpretative guidance addressing
the effect of the ADA on SSA's
disability determination process states,
The fact that an individual may be able
to return to a past relevant job,
provided that the employer makes accommodations,
is not relevant to the
issue(s) to be resolved. . . . [H]ypothetical
inquiries about whether an
employer would or could make accommodations
that would allow return to a
prior job would not be appropriate.44
Thus,
the SSA may find that a person is unable to do any work which
exists in the national economy even though
s/he can work with a reasonable
accommodation.45 In those instances, the
person is both a person with a
"disability" under SSA and a "qualified
individual with a disability"
under the ADA. Accordingly, a person
claiming to be disabled or found to
be disabled under SSA programs still may
be entitled to protection under
the ADA.
2. Workers' Compensation
The
workers' compensation definitions of "disability" reflect the
purposes of workers' compensation laws.
Those laws provide a system for
securing prompt and fair settlement of
employees' claims against employers
for occupational injury and illness.46
In that regard, the laws generally
require employers to compensate employees
who are injured in the course of
employment for the resulting loss of earning
capacity and for medical
care.47 Thus, workers' compensation provides
benefits to individuals whose
earning capacity has been reduced because
of a work-related injury.
Because of the emphasis on lost earning
capacity, the workers'
compensation definitions of disability
generally focus on what a person
can no longer do rather than on what s/he
still is capable of doing with
or without reasonable accommodation.
To
receive workers' compensation benefits, an employee generally
must prove that s/he has a compensable
"disability" as defined by the
applicable workers' compensation statute.48
The term "disability" in this
context most commonly means loss or reduction
of earning power that
results from a work-related injury.49
Some
statutes, however, do not define "disability" in terms of lost
earning capacity. Instead, under
these statutes, an injured worker has a
"disability" if his/her physical efficiency
has been substantially
reduced, or if s/he is unable to perform
the same work with the same ease
as before the injury or is unable to do
heavy work that s/he could do
before the injury.50 Under these statutes,
the worker has a "disability"
even if s/he is employed at the same work
and at the same wages as before
the injury.
Although
workers' compensation laws vary from state to state, the
typical statute ordinarily provides the
following four classifications of
disability, determined by duration (i.e.,
permanent or temporary) and
severity or extent (i.e., partial or total):
temporary partial, temporary
total, permanent partial, and permanent
total.51 Generally, a disability
is partial rather than total where the
claimant is still capable of
gainful employment, even though the disability
is found to prevent the
claimant from returning to his/her former
employment. Conversely, a
worker generally is considered "totally
disabled" when the injury is found
to render the worker temporarily or permanently
unable to do any kind of
work for which there is a reasonably stable
employment market.52
Unlike
the ADA, which always requires an individualized inquiry into
the ability of a particular person to meet
the requirements of a
particular position, some workers' compensation
statutes presume that some
conditions are so severe as to prevent
the claimant from doing any kind of
work. In such instances, a claimant
does not have to make any
representations about ability to work and
need not show a loss of earning
capacity to prove permanent total disability.
For example, under some
workers' compensation statutes, a person
who has lost vision in both eyes
or has lost both arms or legs may have
a "permanent total disability" and
be deemed to be unable to work.53 Such
a person, however, clearly can
perform the essential functions of many
positions with or without
reasonable accommodation.
Moreover,
unlike the ADA definition of "qualified individual with a
disability," the workers' compensation
definitions of "disability" do not
distinguish between marginal and essential
functions and do not consider
whether an individual can work with reasonable
accommodation. In many
workers' compensation cases, a person has
a "total disability" when s/he
is unable to do certain tasks, even if
those tasks are marginal functions
or if s/he could perform them with reasonable
accommodation. Thus, a
person may be "totally disabled" for workers'
compensation purposes and
yet still be able to perform a position's
essential functions with or
without reasonable accommodation.
Similarly,
a person can receive workers' compensation benefits for a
temporary total disability from which she
is expected to recover if,
during the time of incapacitation, s/he
is unable to perform his/her
duties in the occupation in which s/he
was employed at the time of
injury.54 The person is found to have a
"temporary total disability" even
if the duties s/he cannot perform are marginal
functions or s/he could
perform duties with reasonable accommodation.
Further,
some statutes permit a finding of "total disability" where
a person can work but the work that s/he
can do is of such limited
availability that a reasonably stable and
continuous market for such labor
does not exist.55 Thus, a determination
under a workers' compensation
statute that a person cannot do any kind
of work for which a reasonably
stable employment market exists, and therefore
is totally disabled, does
not necessarily mean that there is no job
that the person can perform.
Accordingly, an individual receiving workers'
compensation benefits still
may be entitled to protection under the
ADA.
3. Disability Insurance Plans
Many
employers offer disability insurance plans to their employees
as benefits of employment.56 Receipt of
benefits pursuant to such plans is
a contractual, rather than a statutory,
right. The purpose of disability
insurance plans is to provide partial wage
replacement when an employee
becomes unable to work as a result of illness,
injury, or disease.57 As a
result, the plans' definitions of "disability"
focus on individuals'
inabilities rather than abilities.
To
receive disability benefits, an individual must meet the
eligibility requirements outlined by the
terms of the contract (i.e.,
insurance policy). Disability insurance
plans usually require that an
individual have been employed for a set
period and that s/he be
"disabled." Disability benefits often
are paid on a "residual" basis,
meaning that they are payable in proportion
to the earnings lost as a
result of the disability. Benefits
may be limited to "total disability,"
meaning generally that the insured is unable
to perform any of the duties
of his/her own occupation or any other
type of remunerative work, or may
be payable for "partial disability," where
the insured is unable to
perform one or more functions of his/her
regular job.
The
definition of "disability" depends on what the contract states
and varies from contract to contract.
Generally, "disability" is defined
as the incapacity to perform one or more
duties of the insured's regular
occupation.
When
assessing an individual's ability to perform job duties,
disability insurance plans frequently do
not distinguish between essential
and marginal functions. For example,
under one typical contract, an
employee may be considered "totally disabled"
if s/he is "unable to
perform the duties of the job [s/he] held
when [s/he] became disabled or
any comparable job within [the company]."58
Under this definition, an
individual who could perform the essential,
but not all the marginal,
functions of a position would be considered
"totally disabled." Some
plans, however, may acknowledge the relative
importance of different
duties. Thus, one plan defined "total
disability" as the inability of an
individual "to perform the material and
substantial duties of his or her
own job during the Benefit Waiting Period
plus the next 24 months . . .
due to Injury or Sickness which requires
regular care of a Physician."59
Whether a contract's definition of "disability"
distinguishes between
essential and marginal functions is a key
consideration when comparing a
plan's definition of "disability" to the
ADA definition of "qualified
individual with a disability."
Another
important consideration is whether the contract's definition
of "disability" takes into account whether
an individual can work with
reasonable accommodation. Frequently,
the definition makes no allowance
for an individual's ability to work with
reasonable accommodation.60 In
some cases, the definition expressly eliminates
consideration of
reasonable accommodations, such as modified
or part-time work schedules.61
For example, one disability plan defined
a "totally disabled" individual
as an employee "who is unable to perform
the material duties of his/her
job for the entire regularly scheduled
work week as the result of illness
or injury and requires the ongoing care
of a physician. . . ."62 Under
such a plan, an individual with a disability
who is able to work only part
time may be both "totally disabled" under
the plan and a "qualified
individual with a disability" under the
ADA. Accordingly, an individual
receiving disability insurance benefits
still may be entitled to
protection under the ADA.
C. Analysis
Several
important elements distinguish the definition of the term
"qualified individual with a disability"
under the ADA from the
definitions of "disability" under other
statutory schemes and contracts.
Because of these inherent differences,
an individual may be able to meet
the eligibility requirements for receipt
of disability benefits and still
be a "qualified individual with a disability"
for ADA purposes. That is,
an individual may be "unable to work" for
the purposes of a disability
benefits program and yet still be able
to perform the essential functions
of a particular position with or without
reasonable accommodation.63
An
individual's representations in connection with an application
for disability benefits, therefore, do
not preclude a determination that
the individual is a "qualified individual
with a disability." Although
the representations that an individual
has made in support of his/her
application for benefits may be relevant
to such a determination, they are
never an absolute bar to a finding that
the individual is a "qualified
individual with a disability."
1. The ADA Definition of "Qualified Individual with a
Disability" Always Requires an Individualized
Assessment of the Particular
Individual and the Particular Position;
Other Definitions Permit
Generalized Inquiries and Presumptions.
Unlike
the definitions under other statutory and contractual
schemes, which permit generalized inquiries,
the definition of "qualified
individual with a disability" under the
ADA always requires an
individualized inquiry into the ability
of a particular person to meet the
requirements of a particular position.64
The ADA inquiry into whether a
person is a "qualified individual with
a disability" looks at whether an
individual can perform the essential functions
of a particular position,
not whether s/he is able to work in general.
Further, unlike the SSA and
other statutory and contractual schemes,
the ADA never presumes that some
impairments are so severe as to prevent
an individual from working. To
the contrary, the ADA presumes that individuals
with disabilities can
work.65
The
Seventh Circuit recognized this obvious and significant
distinction in Overton v. Reilly, 977 F.2d
1190, 2 AD Cas. (BNA) 254 (7th
Cir. 1992), when it ruled that a person
could have a disability for SSA
purposes and still be a "qualified individual
with a disability" for
Rehabilitation Act purposes. The
SSA had granted benefits to the Overton
plaintiff, who had an emotional disability,
on a trial basis shortly after
he began working for the defendant.
The court made clear that the
plaintiff's Rehabilitation Act claim of
discriminatory discharge was not
precluded by the SSA's decision to award
him disability benefits.
In
refusing to find that the plaintiff's receipt of benefits
precluded his claim, the Seventh Circuit
relied heavily on the fact that
the SSA definition of disability permits
generalized presumptions. First,
the court noted that "the SSA may award
disability benefits on a finding
that the claimant meets the criteria for
a listed disability, without
inquiring into his ability to find work
within the economy." 977 F.2d at
1196, 2 AD Cas. at 260. This, the
court found, was the basis for the
plaintiff's receipt of benefits.
In addition, the Seventh Circuit
emphasized that, "even if the SSA had looked
into [the plaintiff's]
ability to find work in the national economy,
its inquiry would
necessarily have been generalized."
Id. Such a general inquiry, the
court noted, may determine that a claimant
is unlikely to find a job, but
that does not mean that there is no work
the claimant can do. Thus, a
determination of disability for SSA purposes
"can hardly be construed as a
judgment that [the plaintiff] could not
do [the particular job at issue]."
Id.
Rather
than be swayed by generalized presumptions, the Seventh
Circuit looked specifically at the plaintiff's
particular situation. In
so doing, the circuit court found that
the plaintiff's actual, adequate
performance of work for the defendant refuted
the district court's
assertion that the plaintiff had not offered
evidence that he could
perform substantial gainful activity.
The Seventh Circuit therefore
concluded that the plaintiff had presented
a genuine issue of material
fact whether he was a "qualified individual
with a disability." Id. By
refusing to bar the plaintiff's claim of
disability discrimination, the
Seventh Circuit recognized that the individualized
inquiry mandated by the
definition of "qualified individual with
a disability" differs
significantly from the generalized inquiry
permitted under the SSA
definition of "disability." Id.;
see also Smith v. Dovenmuehle Mortgage,
Inc., 859 F. Supp. 1138, 1141, 4 AD Cas.
(BNA) 132, 135 (N.D. Ill. 1994)
(holding that the SSA's decision to award
disability benefits, based on
its determination that the plaintiff could
not find work in the economy,
did not mean that he was not a "qualified
individual with a disability"
under the ADA, particularly since he found
another position after being
terminated by the defendant).
Similarly,
a district court in the Second Circuit recognized the
fundamental differences between the ADA's
individualized approach and the
SSA assessment. In refusing to grant
the defendant's motion for summary
judgment, the court in Mohamed v. Marriott,
1996 WL 631687 (S.D.N.Y. Oct.
30, 1996), emphasized that the SSA awarded
the plaintiff benefits based on
a "listed disability" (profound deafness)
and did not inquire into his
capability to work. Id. at *6.
In that regard, the court noted that the
plaintiff did not make any specific representations
about his ability to
perform the essential functions of the
job from which he was terminated
and, in fact, represented to the SSA that
he continued to seek work. Id.
Like the Seventh Circuit, the Mohamed court
refused to be swayed by
generalized presumptions and looked at
the plaintiff's particular
situation. Noting that the plaintiff consistently
had received positive
evaluations and had no record of disciplinary
actions prior to his
termination, the court found that there
was "ample evidence" that the
plaintiff was capable of performing the
essential functions of the job
from which he was discharged. Id. at *5.
The court further concluded that
barring the plaintiff's ADA claim based
on the SSA's determination that he
was eligible for benefits "would undermine
the legislative policy of
providing [persons with disabilities] with
both protection against
destitution and a genuine opportunity to
participate fully in the job
market." Id. at *7.
The
Third Circuit, in McNemar v. The Disney Store, Inc., 91 F.3d
610, 5 AD Cas.(BNA) 1227 (3d Cir. 1996),
however, ignored this fundamental
difference between the ADA and SSA and
failed to conduct the
individualized inquiry mandated by the
ADA definition of "qualified
individual with a disability." The
McNemar plaintiff, who had AIDS,
applied for and received SSA and state
disability benefits after he was
fired from his position of assistant manager.
He certified on his
benefits application that he had become
unable to work approximately five
weeks before his discharge. In affirming
the district court's grant of
summary judgment for the defendant, the
Third Circuit found that it was
irrelevant that AIDS is a presumptive disability
that automatically
renders a person "unable to work" for purposes
of SSA benefits, since the
plaintiff claimed that he was physically
unable to work. The court also
rejected the argument that the ADA's standards
and purposes are
fundamentally different from the SSA's.
In reaching these conclusions,
the court overlooked the fact that "unable
to work" for SSA purposes does
not mean unable to perform the essential
functions of a particular
position with or without reasonable accommodation.
The
court's failure to acknowledge these inherent differences
between the ADA definition of "qualified
individual with a disability" and
the SSA definition of "disability" is especially
troubling here, where it
is undisputed that the plaintiff was performing
the essential functions of
his assistant manager's position at the
time of his discharge. It
therefore also should have been undisputed
that the plaintiff met the ADA
definition of "qualified individual with
a disability" at the time of the
alleged discrimination. See Daffron
v. McDonnell Douglas Corp., 874 S.W.
2d 482, 486, 3 AD Cas. (BNA) 183, 187 (Mo.
Ct. App. 1994)(based on the
plaintiff's assertions that he was capable
of performing his job duties
and was, in fact, performing those duties
until the day he was laid off,
the court found that there was evidence
that could establish that the
plaintiff was capable of performing his
duties, even though he filed an
application for disability benefits).
Moreover, the McNemar defendant's asserted reason for the
discharge was unrelated to the issues raised
by the benefits application.
At the time of the discharge, the defendant
maintained that the plaintiff
was fired for theft; the defendant did
not claim that the plaintiff's
disability prevented the plaintiff from
performing the essential functions
of his position with or without reasonable
accommodation. McNemar, 91
F.3d at 614, 5 AD Cas. at 1229. In
fact, the defendant consistently
disavowed any reliance on the plaintiff's
disability. Since the plaintiff
applied for disability benefits after his
termination, the defendant
obviously was unaware of the application
when it decided to terminate him.
Accordingly, under these circumstances,
the defendant should not have been
permitted to use benefits information acquired
after the adverse action to
challenge whether the plaintiff was a "qualified
individual with a
disability." Cf. McKennon v. Nashville
Banner Pub. Co., 115 S. Ct. 879,
885 (1995)(employer liability is determined
solely by information
available to employer "'at the time of
the decision'"). For all these
reasons, the Commission believes that McNemar
was wrongly decided.66
Other
courts have recognized that the ADA's focus on a particular
individual's ability to perform the essential
functions of a particular
position is different from disability benefits
programs' definitions of
"disability." For example, in Pressman
v. Brigham Medical Group
Foundation, Inc., 919 F. Supp. 516, 5 AD
Cas. (BNA) 609 (D. Mass. 1996),
the court concluded that a physician who
consistently claimed that he was
"totally disabled" under his private disability
insurance plan still could
be a "qualified individual with a disability"
with respect to the
particular internist position for which
he had applied. In that case, the
plaintiff, who had a heart disability,
maintained that he was capable of
performing the essential functions of the
internist position even though
he had a "total disability" for purposes
of the insurance plan. 919 F.
Supp. at 523, 5 AD Cas. at 613. According
to the plaintiff, the plan
permitted him to receive total disability
benefits as long as there were
restrictions on his ability to practice
his sub-specialty of cardiology.
919 F. Supp. at 522, 5 AD Cas. at 613.
Since there were genuine issues of
material fact whether the definition of
"total disability" under the
plaintiff's disability plan meant that
he generally was unable to practice
medicine, or whether it meant that he specifically
was unable "to conduct
a solo practice with emergency room duties,"
the court denied the
defendant's motion for summary judgment.
Id.
As
Pressman, Mohamed, Smith, and Overton illustrate, the definitions
under the SSA and other statutory and contractual
schemes do not focus on
whether a particular person can meet the
requirements of a particular
position. As a result, an individual
can both meet the requirements for
disability benefits and be a "qualified
individual with a disability" for
purposes of the ADA.
2. The ADA Definition of "Qualified Individual with a
Disability" Requires Consideration of Reasonable
Accommodation; Other
Definitions Do Not Consider Whether an
Individual Can Work with Reasonable
Accommodation.
Assessing
whether a person can work with reasonable accommodation is
a key part of determining if the person
meets the ADA definition of the
term "qualified individual with a disability."
Unlike the ADA definition,
however, the definitions of disability
under the SSA, workers'
compensation laws, and disability insurance
plans do not consider whether
a person can work with reasonable accommodation.67
Thus, a person may be
deemed unable to work and be awarded disability
benefits even though s/he
can perform the essential functions of
a particular position with
reasonable accommodation.
Courts
have recognized this important difference between the ADA
definition of "qualified individual with
a disability" and other
definitions of "disability" or "totally
disabled." For example, in
D'Aprile v. Fleet Services Corp., 92 F.3d
1 (1st Cir. 1996), the First
Circuit reversed a district court's grant
of summary judgment where the
plaintiff had sought disability benefits
after the defendant refused her
request to work on a part-time basis.68
In D'Aprile, the plaintiff had
unofficially worked part time (through
the use of accrued vacation leave)
for two months after the defendant denied
her request to be converted to a
part- time status. After the plaintiff
exhausted her vacation time, she
submitted a doctor's note "stating that
she was 'unable to work at this
time and should be placed on disability.'"
Id. at 3. The plaintiff then
received disability benefits under an insurance
plan that defined a
"totally disabled" individual as an employee
"who is unable to perform the
material duties of his/her job for the
entire regularly scheduled work
week as the result of injury orillness
. . . ." Id. at 4-5.
The
First Circuit found that the plaintiff's contention that she was
unable to work because her employer had
refused her request for a modified
schedule was "entirely consistent with
her claim to have been 'totally
disabled' within the meaning of the policy."
Id. at 5. Noting that the
plaintiff asserted that she could work
on a part-time basis and that she
in fact had worked part time, the court
found that there existed a genuine
issue of material fact whether the plaintiff
could have worked with
reasonable accommodation. In so doing,
the court expressly ruled that the
plaintiff's application for benefits "sheds
no light on how [the
plaintiff] would have fared had the accommodation
been made." Id. In
addition, the D'Aprile court explicitly
stated that August v. Offices
Unlimited, Inc., 981 F.2d 576, 2 AD Cas.
(BNA) 401 (1st Cir. 1992), does
not stand for the broad proposition that
a plaintiff who claims that s/he
is "totally disabled" within the context
of applying for disability
benefits is barred from bringing an ADA
claim but, rather, "stands for the
narrow proposition that the plaintiff's
ability to work with reasonable
accommodation" is key in determining whether
a person meets the ADA
definition of "qualified individual with
a disability." Id. at 3.69 The
Commission believes that D'Aprile is correct
in recognizing that an
individual can meet a disability benefits
program definition of "totally
disabled" and still be able to perform
the essential functions of a
particular position with reasonable accommodation.
Similarly,
in Anzalone v. Allstate Ins. Co., 5 AD Cas. (BNA) 223
(E.D. La. 1995), the court correctly recognized
the differences between
the ADA definition of "qualified individual
with a disability" and a
disability insurance plan's definition
of "total disability" in refusing
to grant defendant's motion for summary
judgment. The plaintiff in
Anzalone applied for and received LTD benefits
after the defendant had
refused his request to work at home.
Noting that the plaintiff had
consistently stated that he could perform
the essential functions of his
claims adjuster position with certain modifications,
the court found that
his receipt of disability benefits did
not bar his ADA claim. According
to the court, the plaintiff's receipt of
benefits was relevant -- but not
dispositive -- evidence of whether the
plaintiff could perform essential
functions with or without reasonable accommodation.
Anzalone, 5 AD Cas.
at 225.70 See also Ward v. Westvaco Corp.,
859 F. Supp. 608, 615, 3 AD
Cas. (BNA) 739, 745 (D. Mass. 1994) (in
denying the employer's motion for
summary judgment, the court found that
there was a genuine issue of
material fact whether the plaintiff would
have been able to perform his
job duties with reasonable accommodation);
Patel v. Everett Industries,
No. 88-BEM-0451 (Mass. Comm'n Against Discrimination
Sept. 18,
1996)(injured employee who received workers'
compensation benefits was not
precluded from proving that she was a "qualified
individual with a
disability" under state law where she did
not claim that she was disabled
from all work but only that she could not
perform the heavy tasks to which
she was assigned).71
As
Patel, Ward, Anzalone, and D'Aprile demonstrate, an individual
can meet the eligibility requirements for
disability benefits and still be
able to perform the essential functions
of particular positions with
reasonable accommodation.
II. Because of the Fundamental Differences
Between the ADA and Other
Statutory and Contractual Disability Benefits
Programs, Representations
Made in Connection with an Application
for Benefits May Be Relevant to --
but Are Never Determinative of -- Whether
a Person Is a "Qualified
Individual with a Disability."
A.
Representations Made in Connection with an Application for
Disability Benefits Are Not Determinative
of Whether a Person Is a
"Qualified Individual with a Disability."
Because of the inherent differences in the definitions of the term
"qualified individual with a disability"
under the ADA and the terms used
in the SSA, state workers' compensation
laws, disability insurance plans,
and other disability benefits programs,
and because the ADA considers
whether a person can work with reasonable
accommodation, an individual can
meet both the eligibility requirements
for receipt of disability benefits
and the definition of a "qualified individual
with a disability" for ADA
purposes. Thus, a person's representations
that s/he is "disabled" or
"totally disabled" for purposes of disability
benefits are not necessarily
inconsistent with his/her representations
that s/he is a "qualified
individual with a disability."72 Accordingly,
they should never be an
automatic bar to an ADA claim. Thus,
for example, the doctrine of
judicial estoppel should not be used to
bar the ADA claim of an individual
who has applied for disability benefits.
Similarly, granting summary
judgment to bar such claims also is inappropriate.73
1. Judicial Estoppel
The
common law doctrine of judicial estoppel prevents a party who
has successfully maintained a position
in one judicial proceeding from
asserting a contrary position in another
proceeding. It is a "principle
of fairness" designed to preserve the integrity
of the judicial process.
18 C. WRIGHT, A. MILLER & E. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 4477
at, 779-88 (1981). "Judicial estoppel
applies where a party tries to
contradict in a second lawsuit his sworn
statement in previous
litigation." Grant v. Lone Star Co.,
21 F.3d 649, 651 n.2 (5th Cir.
1994). The doctrine protects the
integrity of the judicial process by
"minimiz[ing] the danger of a party contradicting
a court's determination
based on the party's prior position," thereby
resulting in "inconsistent
court determinations." United States
ex. rel. Am. Bank v. C.I.T. Constr.
Inc., 944 F.2d 253, 258 (5th Cir. 1991).74
As
explained above, an individual who asserts that s/he is both
"totally disabled" and a "qualified individual
with a disability" has not
necessarily made inconsistent representations.
Accordingly, the doctrine
of judicial estoppel should not be used
to prevent the individual from
raising an ADA claim. Thus, courts
that have recognized the inherent
differences between the definitions of
"qualified individual with a
disability" and "totally disabled" or "disabled"
have refused to apply
this doctrine to bar claims of disability
discrimination. See, e.g.,
Smith v. Dovenmuehle Mortgage Co., 859
F. Supp. 1138, 4 AD Cas. (BNA) 132
(N.D. Ill. 1994) (judicial estoppel inappropriate
where genuine issue of
material fact whether position that plaintiff
with AIDS took before SSA is
inconsistent with assertion that plaintiff
is a "qualified individual with
a disability"); Mohamed v. Marriott, 1996
WL 631687, at *6 (S.D.N.Y. Oct.
30, 1996)("it would be inappropriate to
invoke the fact-sensitive and
limited doctrine of judicial estoppel to
erect a per se bar to ADA
protection for individuals who have also
applied for and/or received [SSA]
benefits").
Generally,
the doctrine of judicial estoppel applies only when an
individual took his/her earlier position
in a prior judicial proceeding.
See, e.g., Shell Oil Co. v. Trailer &
Truck Repair Co., 828 F.2d 205,
209-210 (3d Cir. 1987); Smith v. Travelers
Ins. Co., 438 F.2d 373, 377
(6th Cir.), cert. denied, 404 U.S. 832
(1971). However, in many cases, the
individual has not made his/her representations
before a judicial forum.
Accordingly, courts that have recognized
the significant differences in
judicial proceedings and administrative
determinations have declined to
apply judicial estoppel to bar claims of
disability discrimination. See,
e.g., Mohamed v. Marriott, 1996 WL 631687,
at *7 (S.D.N.Y. Oct. 30,
1996)("[t]he streamlined procedures giving
rise to the SSA's determination
of disability should, at a minimum, give
pause to a court considering
barring the courtroom door to a plaintiff
alleging employment
discrimination"); see also EEOC v. MTS
Corp. d/b/a Supercuts, No. 94-1473
LH/WWD (D.N.M. July 26, 1996)(the court
noted that, even if the Tenth
Circuit recognized judicial estoppel, it
would not apply the doctrine to
the facts of this case where the plaintiff
completed his SSA application
over the telephone).75
Public
policy considerations also preclude the application of
judicial estoppel in the types of cases
to which this guidance applies.
See Marvello v. Chemical Bank, 923 F. Supp.
487