Marta Russell

I

wondered how long it would take a right-wing think tank to cry foul when it got

hold of the fact that disabled person may collect Social Security Disability

Insurance (SSDI) and pursue an Americans with Disabilities Act (ADA) employment

discrimination claim against their former employer simultaneously. It took about

15 months from the Cleveland v. Policy Management Systems Corp Supreme Court

ruling for the Libertarian Cato Institute to come out with the policy analysis

“Facilitating Fraud: How SSDI Gives Benefits to the Able Bodied.”

The

Cato Institute has a history of using its $13 million a year budget to influence

Washington policy makers and push government policy to the right. ZNET readers

most likely already know that it is opposed to public sector programs and has

been agitating for the privatization of Social Security, which if imposed upon

the nation, would be the beginning of the end of the social safety net.

Readers

may not know that the Cato Institute has exhibited prominent hostility towards

the ADA. The year the ADA was signed, it called on President Bush “to ask

Congress to reconsider” the ADA since from the standpoint of free enterprise,

it represented a re-regulation of the economy that was harmful to business. In

1995, the director of regulatory studies at Cato wrote “If Congress is serious

about lifting the regulatory burden from the economy, it must consider major

changes in, if not outright repeal of, the ADA. And if Congress is to undo the

damage already done by the act, it should consider paying reparations to cover

the costs that individuals, private establishments, and enterprises have

suffered under the ADA’s provisions.”

Cato

is anti-regulatory and anti-government, but what it mostly is about is thwarting

any social policy which it perceives interferes with business drive to

accumulate. While it can be said to be anti-government, we can’t take that too

seriously because it isn’t against business benefiting from government

largess. Rupert Murdoch, for instance, sits on the Cato board and doesn’t pay

a cent for frequency licenses to use the public airwaves (the entire spectrum

has been valued at $70 billion). More accurately the Cato Institute can be

described as being anti-government when those government policies are geared to

help working class people instead of the owning class: theirs is a philosophy of

capitalism for the average Joe and socialism for the capitalists.

The

“disability fraud” paper is no exception. Cato’s beef is that Social

Security Administration (SSA) officials can award full SSDI benefits to persons

who pursue ADA disability discrimination claims. The author, James M. Taylor,

poses:

“…to

assert an ADA claim, a plaintiff must argue that he is fully capable of

performing a desired job. How can a person be simultaneously able and unable to

work?”

Let’s

look at Cleveland to see what happened to the plaintiff in that case. Carolyn

Cleveland, the plaintiff, became disabled. She told her employer, Policy

Mangagement Systems Corp., that she could continue to do her job if it provided

a reasonable accommodation. As so often happens when these matters are pressed

upon employers, hers denied the reasonable accommodation request and then fired

her for failure to perform.

Workers

pay a heavy personal price when employers contest disablement or refuse badly

needed access modifications, reasonable accommodations and/or removal of work

barriers and choose instead to put up a fight in court. When, for example, an

employee cannot work without an accommodation and the employer does not readily

provide one, the worker is often unable to perform her job and is fired. Common

sense would dictate that when the worker has a protracted court battle ahead of

her to enforce her right to an accommodation but no paycheck in the mail, the

last practical resort is to go onto disability benefits. Yet employers use a

worker’s qualification for disability benefits to undermine discrimination

cases against them. Under SSA’s definition of disablement, a worker is

qualified for benefits if he/she cannot work; SSA does not consider whether the

employee could continue to work if the employer provided a reasonable

accommodation. The employer, contesting the worker’s discrimination suit,

holds that if the worker claims he/she cannot work for purposes of claiming

disability benefits, they cannot work and therefore the discrimination suit is

moot.

Cleveland

subsequently successfully applied for Social Security disability benefits and as

was her right, she sued the employer for failure to comply with the ADA. The

Supreme Court granted certiorari to decide:

“whether

an ADA plaintiff ‘s representation to the [Social Security Administration] that

she was ‘totally disabled’ created a rebuttable presumption sufficient to

judicially estop her later representation that, for the time in question, with

reasonable accommodation, she could perform the essential functions of her

job.”

The

justices ruled in Cleveland that application for and receipt of SSDI benefits

does not automatically estop a recipient from pursuing an ADA claim or erect a

strong presumption against the recipient’s ADA success. However, it held that to

survive a summary judgment motion an ADA plaintiff cannot ignore her SSDI

contention that she was too disabled to work, but must explain why that

contention is consistent with her ADA claim that she can perform the essential

functions of her job, at least with reasonable accommodation. 125 Under this

holding both parties will have the opportunity to present or contest the

plaintiff’s explanation. Furthermore, a plaintiff may argue that her SSDI

statement of total disability was made in a forum that does not consider the

effect that a reasonable workplace accommodation would have on ability to work.

She may also argue that statements were reliable at the time they were made.

The

Cato Institute claims this is “disability fraud.” Taylor writes “…any

person who files an employment discrimination claim under the ADA is by

definition arguing that he can perform a particular job, though often with the

stipulation that the employer make some “reasonable accommodation” for the

person’s condition. If a person has asserted under oath that he is capable of

performing one of more jobs that he desires, then logic tells us that that

person cannot at the same time claim under oath that in reality he cannot

perform any type of work that exists in the national economy.” Clearly, Taylor

has taken the side of business.

Although

Taylor states that the ADA mandates an employer to provide a reasonable

accommodation “whenever and wherever disabled persons need them” he

conveniently fails to make the connection that Cleveland’s employer

denied

her an accommodation. If the employer had complied with the law that the Cato

Institute has done its best to kill, then Cleveland would not have sued her

employer nor would she be on disability benefits.

Still

it is questionable how worker-friendly the Supreme Court ruling is. It does not

preclude the employer from firing the worker first and does not guarantee a

favorable outcome for the disabled employee. The court warned that “in some

cases an earlier SSDI claim may turn out genuinely to conflict with an ADA

claim.” It remains to be seen how workers with disabilities will fare.

How

are disabled workers faring at the Cato Institute? After reading Taylor’s

paper, I called to inquire how many deaf, blind, mobility or otherwise impaired

persons Cato Institute had amongst their 75 employees. Bill Erickson, VP of

Finance and Administration, told me Cato had “no disabled employees at the

moment” but they would hire someone “if they were qualified for the job.”

When I asked how many had worked there in the past, he said he really couldn’t

say.

Why

doesn’t Taylor go after the failure of business to provide a reasonable

accommodation or the conservative courts which are consistently ruling in favor

of employers’ interests? Plaintiffs face an overall lack of success in the

courts where employers have been charged with disability discrimination. Studies

show that in the first eight years, defendants (businesses) overwhelming

prevailed in ADA employment cases at both the trial and appellate court levels.

Law professor Ruth Colker states that this outcome is “worse than results

found in comparable areas of the law; only prisoner rights cases fare as

poorly.”

Nine

years after the passage of the ADA, national employment surveys show no real

statistical gain in employment. One study suggests that proportion of

working-age adults with disabilities who are employed has declined since 1986,

when one in three (34 percent) were working. If Taylor is so concerned about how

many people are on SSDI, why doesn’t he criticize the employer’s calculus

when deciding to hire or retain disabled workers? Employers often think it is

cheaper to get rid of a disabled employee than to retain them. Employers are

creating the persons who must apply for SSDI.

The

answer is no mystery. Taylor’s “disability fraud” is think-tank ammunition

bought by the wealthy who Cato represent to further push government policy to

the right and to undo working class security. Undermining SSDI claims is a means

to this end.

—

Marta Russell can be reached at [email protected] http://disweb.org/