Effect of Representations Made in Benefits Application on Determining An Individual's ADA Status

Web Posted on: December 18, 1997

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DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded.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

DISTRIBUTION: CM Holders

REVISED EEOC FORM 106 (6/91) PREVIOUS EDITIONS OF THIS FORM ARE OBSOLETE AND MUST NOT BE USED

Table of Contents

Executive Summary i

Introduction 1

I. The ADA's Purposes and Standards Are Fundamentally Different from the Purposes and Standards of Other Statutory Schemes and Contractual Rights. 3

A. Americans with Disabilities Act 4

1. Purposes 4

2. Standards 5

B. Other Statutory Schemes and Contractual Rights 7

1. Social Security Act 7

2. Workers' Compensation 13

3. Disability Insurance Plans 16

C. Analysis 18

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. 19

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. 23

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." 26

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." 26

1. Judicial Estoppel 27

2. Summary Judgment 29

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. 30

1. Context 31

2. Timing 33

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. 35

A. Permitting Individuals to Go Forward with Their ADA Claims Is Critical to the ADA's Goal of Eradicating Discrimination Against Individuals with Disabilities. 35

B. Individuals Should Not Have to Choose Between Applying for Disability Benefits and Vindicating Their Rights Under the ADA. 37

IV. Instructions to Investigators 37

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) 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." 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."

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.

This enforcement guidance explains why representations made in other contexts about the ability to work are not necessarily a bar to an ADA claim. 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" 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. 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." It also is designed "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."

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." 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. . . ." Unlike other discrete and insular minorities, however, individuals with disabilities "have often had no legal recourse to redress such discrimination." 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."

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.

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. In addition, reflecting the Act's focus on individual rather than group characteristics, 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 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.

The determination of whether an individual with a disability is "qualified" should be made in two steps. 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. 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.

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. 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.

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. This reasonable accommodation requirement is critical to achieving the goals of the ADA.

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. 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.

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.

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.

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. 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." 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."

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. 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. 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. 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. This five-step process requires the SSA to ask the following questions:

(1) Is the claimant currently engaging in "substantial gainful activity"? (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"? (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, 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.

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. 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. All tasks required to perform the job are considered with no distinction made between fundamental and peripheral functions. 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.

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. 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. 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. 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. The term "disability" in this context most commonly means loss or reduction of earning power that results from a work-related injury.

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. 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. 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.

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. 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. 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. 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. 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. 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]." 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." 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. In some cases, the definition expressly eliminates consideration of reasonable accommodations, such as modified or part-time work schedules. 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. . . ." 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.

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."

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. 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.

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.

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.

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. 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. 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 or

illness . . . ." 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. 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. 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).

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.

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." 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.

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).

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).

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, 491-92, 5 AD Cas. (BNA) 1400, 1403 (S.D.N.Y. 1996)(applying judicial estoppel to bar the ADA claim of individuals who have applied for disability benefits could undermine the policy goals of the ADA without advancing the separate goals of the Social Security Act); Mohamed v. Marriott, 1996 WL 531687, at *7 (S.D.N.Y. Oct. 30, 1996)(the ADA's overriding purpose of encouraging individuals with disabilities to seek employment would be thwarted by the application of judicial estoppel to the facts of this case). Because "[j]udicial estoppel is a technical rule designed to meet the needs of broad public policy," Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973), courts have been reluctant to apply the doctrine where doing so would undermine the public policy goals of a federal statute. See City of Alma v. United States, 744 F. Supp. 1546, 1556 (S.D. Ga. 1990). In fact, some courts have declined to apply the doctrine where barring the plaintiff's suit "implicates not only the relevant interests of the litigating parties, but also the public's interest in promoting the underlying statute." Matter of Morristown & Erie R.R. Co., 677 F.2d 360, 368 n.10 (3d Cir. 1982); cf. McKennon v. Nashville Banner Co., 115 S. Ct. 879, 885 (1995)(the Supreme Court noted that "the broader objectives of [the anti-discrimination statutes] are furthered when even a single employee establishes that an employer has discriminated against him or her").

2. Summary Judgment

The inherent differences between the definitions of the term "qualified individual with a disability" under the ADA and the terms used in other statutory and contractual schemes also make summary judgment inappropriate. Granting summary judgment is only proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In deciding whether a factual dispute is "genuine," the court must determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must review the facts in the light most favorable to the nonmoving party and accord the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433 (10th Cir. 1986)(stating that "[t]he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues"). The court's function is not to weigh the evidence but, rather, merely to determine whether there is sufficient evidence favoring the nonmoving party for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.

As discussed in detail in this guidance, because the ADA's purposes and standards are fundamentally different from those of disability benefits programs, an individual's representations made in connection with an application for disability benefits do not mean that the individual cannot perform the essential functions of the position held or desired with or without reasonable accommodation. Accordingly, the application for disability benefits does not mean that there does not exist a genuine issue of material fact concerning whether a person is a "qualified individual with a disability." Thus, for example, in Overton, the court held that summary judgment was inappropriate. Overton, 977 F.2d at 1194. See also Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 4 AD Cas. (BNA) 132 (N.D. Ill. 1994) (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"); Oswald v. Larouche Chemicals, Inc., 894 F. Supp. 988 (E.D. La. 1995)(genuine issue of material fact whether the doctor, whose conclusion that the plaintiff could not perform any jobs formed the basis of the grant of disability retirement benefits to the plaintiff, properly assessed the plaintiff's ability to perform the essential functions of the modified position); Kupperschmidt v. Runyon, 827 F. Supp. 570, 3 AD Cas. (BNA) 52 (E.D. Wis. 1993)(genuine issue of material fact whether plaintiff, who received SSA and federal employee retirement system disability benefits, was a "qualified individual with a disability" for purposes of the Rehabilitation Act); EEOC v. MTS Corp. d/b/a Supercuts, No. 94-1473 LH/WWD (D.N.M. July 26, 1996)(genuine issue of material fact regarding when plaintiff with AIDS, who applied for SSA disability benefits, became incapable of performing the essential functions of his position).

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.

In assessing the extent to which representations made in connection with an application for disability benefits are relevant to a determination of whether a person is a "qualified individual with a disability" under the ADA, it is necessary to look at the context and timing of the representations. Often, applications for disability benefits do not use precise terminology and do not clearly define terms such as "total disability." In addition, these forms or applications may require an individual merely to check off boxes and not allow him/her to fully describe his/her disabling condition or may be taken over the telephone. Even during depositions or hearings, questions concerning an individual's disability and/or ability to work are not always posed with precision. Accordingly, courts declining to dismiss the ADA claims of individuals who have applied for disability benefits have looked behind the "labels" or terms used in various forums and have considered other factors (e.g., the content of the representations, who made them, the purpose for which they were made, when the representations were made, the period of time to which they refer, and any changes in the individual's physical or mental condition between the time of his/her application for benefits and the time of the adverse employment action at issue) in determining that a genuine issue of material fact exists as to whether an individual is a "qualified individual with a disability" for purposes of the ADA.

1. Context

Representations on a benefits application should not be viewed in a vacuum but, rather, considered in the context of all other relevant documents (e.g., disability reports, doctors' reports, depositions). In addition, the circumstances under which the individual applied for benefits should be considered (e.g., did the individual apply for benefits because s/he could not work because the employer denied reasonable accommodation?; did the individual maintain, at the time of application for benefits, that s/he could perform the essential functions of the position in question with accommodation?; did the individual apply for benefits based on a doctor's assessment that s/he was totally disabled?; did the individual apply for benefits at the suggestion of the employer?; did the individual apply for benefits because s/he believed s/he was unable to work because of discrimination?).

For example, in Anzalone v. Allstate Ins. Co., 5 AD Cas. (BNA) 223 (E.D. La. 1995), the plaintiff applied for disability benefits only after the defendant refused to allow him to return to work with certain restrictions. The court reviewed the context in which the plaintiff's statements were made and found that he did not unambiguously characterize himself as totally and completely disabled; rather, the plaintiff consistently took the position that he was capable of working under certain restrictions (i.e., with reasonable accommodation). Anzalone, 5 AD Cas. at 225. Similarly, in Ward v. Westvaco Corp., 859 F. Supp. 608, 614-15, 3 AD Cas. (BNA) 738, 744-45 (D. Mass. 1994), although the plaintiff applied for disability retirement benefits under the SSA and his company's disability insurance plan, stating on the applications that he was "totally and permanently disabled," he explained that he would have been able to perform his job had his employer made reasonable accommodations. The court held that the plaintiff's testimony, in the context of his ADA claim, was not inherently inconsistent with his former statements made in the course of obtaining disability benefits.

In addition, in some cases, the plaintiff applies for disability benefits based on a doctor's assessment that s/he is disabled, although the plaintiff believes that s/he can still work with reasonable accommodation. Doctors, however, can be wrong in assessing a person's condition and/or ability to work. For example, in Oswald v. Larouche Chemicals, Inc., 894 F. Supp. 988 (E.D. La. 1995), the plaintiff, as well as his physical therapist, believed that he could perform the essential functions of a modified position, but the defendant's medical review officer determined that he could not. The court held that, because the employer's medical review officer's conclusion that the plaintiff could not perform any available jobs was the basis for the grant of disability benefits, there was a genuine issue of material fact whether the medical review officer properly assessed the plaintiff's abilities. Oswald, 894 F. Supp. at 996. Accordingly, it was possible that the plaintiff was a "qualified individual with a disability" capable of performing the essential functions of one or more positions with accommodation despite the medical review officer's determination that he was totally disabled.

In other cases, the plaintiff applies for disability benefits because the employer's alleged discriminatory conduct causes him/her to be unable to work or to believe that s/he cannot work because of discrimination. For example, in EEOC v. MTS Corp. d/b/a Supercuts, No. 94-1473 LH/WWD (D.N.M. July 26, 1996), after other employees became concerned about working with the plaintiff who had AIDS, the defendant excluded the plaintiff from a meeting at which his condition was discussed, denied his request to return to his "home base" salon, refused to pay his travel expenses to an annual company convention, and, after terminating him, informed him that he was no longer permitted on the premises. The defendant moved for summary judgment on the plaintiff's ADA claim, arguing that he was not a "qualified individual with a disability" because he applied for and received SSA benefits. In declining to grant the defendant's motion, the court noted that the plaintiff had completed "the application over the phone, outside of judicial machinery, without the benefit of counsel, and arguably under a great deal of emotional distress." MTS Corp. d/b/a Supercuts, No. 94-1473 LH/WWD at 2. Moreover, crediting the EEOC's version of the facts, the court noted that the defendants had forced the plaintiff "into the unenviable position of being unemployed . . . and emotionally devastated by their discriminatory conduct." Id.

Similarly, in EEOC v. AIC Security, 820 F. Supp. 1060, 2 AD Cas. (BNA) 561 (N.D. Ill. 1993), the plaintiff, who had cancer, maintained that he was qualified to perform the essential functions of the position from which he was terminated. The plaintiff's doctor also agreed that the plaintiff still could perform his job and explained that the information he supplied to the SSA, in support of the plaintiff's application for disability benefits, "was premised on the fact that [the plaintiff] had been fired from his job and that he should be able to get some compensation because no one [was] going to hire him." AIC Security, 820 F. Supp. at 1066-67, 2 AD Cas. at 567; see also Mohamed v. Marriott, 1996 WL 631687, at *2 (S.D.N.Y. Oct. 30, 1996)(in response to a question on the SSA application requesting an explanation of how his condition prevented him from working, the plaintiff, who was deaf, stated that he had tried to get another job but had been "frustrated" any place he looked because there were not "enough jobs open").

2. Timing

It is possible that an individual can be "totally disabled" at one point and can later be able to return to work or become totally disabled after a period of being able to work. It is therefore necessary to review what the person said about his/her condition at the time of his/her application for disability benefits and what s/he maintained his/her condition was at the time of the alleged discrimination (i.e., was the condition at time to which the application refers different from condition at time of alleged discrimination?).

For example, in Lundstedt v. City of Miami, 5 AD Cas. (BNA) 568 (S.D. Fla. 1995), the plaintiff applied for and was granted disability retirement benefits in 1980, based on his work-related accident in 1978 and subsequent related physical problems. The plaintiff also began receiving workers' compensation benefits in 1982 and received a lump sum payment in 1988 based on his total permanent disability. In 1992, the plaintiff requested to be reinstated to his former firefighter position, but the defendant denied his request. In refusing to grant the defendant's motion for summary judgment with respect to the plaintiff's ADA claim, the court held that it was "perfectly consistent for [p]laintiff to assert that he was disabled in the past, but after time he became rehabilitated and is now able to return to work." Lundstedt, 5 AD Cas. at 577-78.

Similarly, in Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 4 AD Cas. (BNA) 132 (N.D. Ill. 1994), the plaintiff, who had AIDS, claimed that, about one month after his discharge, he improved enough to perform the functions of his position (although he was receiving SSA benefits). The court found that, because the plaintiff's condition had improved, his position with respect to his ADA claim was not inconsistent with his position before the SSA. Smith, 859 F. Supp. at 1142, 4 AD Cas. at 136.

In addition, in Lawrence v. United States I.C.C., 629 F. Supp. 819 (E.D. Pa. 1985), the plaintiff completed a disability retirement application, stating that he was "totally disabled" and "unable to carry out the vigorous activity required by [his] position"; later, he filed an ADA claim alleging that he was currently able to work. Since 22 months had lapsed between the plaintiff's application for SSA benefits and the filing of his ADA claim, the court reasoned that the plaintiff's claim that he was now able to work did not contradict his position at the time he applied for disability benefits. Lawrence, 629 F. Supp. at 822.

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.

The ADA's essential goal is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Recognizing that individuals who have experienced discrimination on the basis of a disability "have often had no legal recourse to redress such discrimination," Congress enacted the ADA to provide legal remedies for the pervasive discrimination that "persists in such critical areas as employment . . . ." Private lawsuits, therefore, play a critical role in the enforcement of the ADA.

An individual who brings an employment discrimination case "acts not only to vindicate his or her personal interests in being made whole, but also acts as a 'private attorney general' to enforce the paramount public interest in eradicating invidious discrimination." Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1235 (3d Cir. 1994), vacated, 115 S. Ct. 1397 (1995), modified on other grounds, 65 F.3d 1072 (3d Cir. 1995). Accordingly, when the EEOC acts on allegations of discrimination, at the behest of and for the benefit of specific individuals, it also acts to vindicate the public interest in preventing employment discrimination. Barring individuals who apply for disability benefits from pursuing ADA claims would impede EEOC's enforcement of the ADA and deny individuals the right to have the court hear the merits of their claims. Moreover, it also would permit the continuation of the invidious discrimination that the ADA is designed to eradicate.

The Supreme Court has made clear that general equitable doctrines, such as judicial estoppel, cannot be applied as absolute bars to suits brought under the federal anti-discrimination statutes, given the important "'public purposes' furthered when even a single [person] establishes that an employer has discriminated against him or her." McKennon v. Nashville Banner Publishing Co., __U.S.__, 115 S. Ct. 879, 885 (1995). This is so because "[t]he private litigator who seeks redress for his injuries vindicates both the deterrence and compensation objectives of [the Act in question]." Id.

In addition, as the McKennon court explained:

The disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance.

Id. at 885.

Thus, if an individual is prevented from bringing an ADA claim because s/he has applied for disability benefits, discrimination is not deterred and the plaintiff's interests are not vindicated. Instead, "patterns of noncompliance" and pervasive discrimination against people with disabilities continue. See also Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 1142, 4 AD Cas. (BNA) 132, 135 (N.D. Ill. 1994) (barring ADA claim of individual who received disability benefits would conflict with ADA's stated purpose "to combat the 'continuing existence of unfair and unnecessary discrimination and prejudice [which denies] people with disabilities the opportunity to compete on an equal basis'") (quoting 42 U.S.C. § 12101(a)(9)).

B. Individuals Should Not Have to Choose Between Applying for Disability Benefits and Vindicating Their Rights Under the ADA.

All persons have a right to be free from discrimination. In addition, each individual who meets the eligibility requirements for disability benefits has a right to receive such benefits. Barring an individual who applies for disability benefits from bringing a claim under the ADA would "place [him/her] in the untenable position of choosing between his right to seek disability benefits and his right to seek redress for an alleged violation of the ADA." Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 1142, 4 AD Cas. (BNA) 132, 135 (N.D. Ill. 1994).

Moreover, an individual who applies for SSA, workers' compensation, and/or disability insurance benefits is not knowingly relinquishing his/her right to bring an ADA claim but, rather, is exercising independent rights. Cf. Alexander v. Gardner-Denver, 415 U.S. 36, 94 S. Ct. 1011 (1974)(the court held that an employee who had pursued a discrimination claim through union arbitration could not be prevented by the arbitrator's decision from bringing an independent cause of action under Title VII). The ADA was passed with the assumption that individuals with disabilities who want to work and are qualified to work must have an equal opportunity to work. The SSA operates from the same presumption by providing work incentive programs for disability beneficiaries that permit individuals to retain benefits while transitioning into employment. Accordingly, both the ADA and the SSA seek to promote the employment of individuals with disabilities whenever possible. See Mohamed v. Marriott, 1996 WL 631687, at *6 (S.D.N.Y. Oct. 30, 1996)(noting that since the Social Security Act itself permits individuals to receive benefits and work at the same time, "the classes of individuals entitled to protection under the [Social Security Act and the ADA] are not mutually exclusive"). Thus, because neither the ADA nor the SSA assumes that individuals are either totally able or unable to work, a person should not have to choose between applying for disability benefits or challenging an alleged adverse employment action under the ADA.

IV. Instructions to Investigators

As explained above, representations made in connection with an application for disability benefits are not dispositive of whether a person is a "qualified individual with a disability" for purposes of the ADA. Therefore, those representations, and the application for disability benefits, do not bar the filing of an ADA charge, nor should they prevent an investigator from recommending a cause determination if the evidence supports such a determination.

When determining whether a charging party (CP) is a "qualified individual with a disability," the investigator must conduct an individualized, case-by-case inquiry into whether CP can perform the essential functions of the position held or desired with or without reasonable accommodation. This inquiry must focus on the particular individual and the particular position at issue.

Although applying for disability benefits does not preclude CP from bringing an ADA claim, the representations made while pursuing such benefits may be relevant -- but not dispositive -- evidence of whether CP is a "qualified individual with a disability." As explained in this guidance, it is essential to look not only at CP's application for disability benefits but at all of the relevant evidence (e.g., the facts surrounding the alleged discrimination, disability reports, doctors' reports, depositions) when determining whether CP meets this definition.

When assessing the effect that representations made in the context of applying for disability benefits may have on this determination, it is crucial to focus on the exact definition used by the benefits program, the precise content of the individual's representations, and the specific circumstances surrounding the application for disability benefits. It also is important to look at whether CP was "a qualified individual with a disability" at the time of the alleged discrimination and whether s/he maintained that s/he was still able to perform the essential functions of his/her position, with or without reasonable accommodation, at the time of the application for benefits. When deciding what, if any, weight to give to CP's representations made while pursuing disability benefits, 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?);