Amicus Curiae Brief — Cleveland v. Policy Management Systems Corp.

ao

—

Supreme Court, U. 8.

FILE

No. 97-1008

In the Supreme Court of the United States

(MO TORE |] TERM 1998

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAI

SUPPORTING PETITIONER

D

QUESTIONS PRESENTED

1. Whether the application for or receipt of disability

insurance benefits under the Social Security Act,

42 U.S.C. 423 (1994 & Supp. II 1996), creates a rebuttable

presumption that the applicant or recipient is judicially

estopped from asserting that she is a “qualified individual

with a disability” under the Americans with Disabilities Act

of 1990 (ADA), 42 U.S.C. 12111(8).

2. If it does not create a presumption, what weight, if

any, should be given to the application for, or receipt of,

disability insurance benefits when a person asserts she is a

“qualified individual with a disability” under the ADA?

TABLE OF CONTENTS

Interest of the amici curiae

Statement

Summary of argument

Argument:

I. Neither application for nor receipt of disability

insurance benefits under the Social Security Act

creates a rebuttable presumption that the

applicant or recipient is judicially estopped

from asserting that she is a “qualified individual

with a disability” under the ADA

A. A claim for Social Security disability benefits

is not inconsistent with a valid ADA claim

B. The court of appeals erred in adopting a

rebuttable presumption that an applicant

for or recipient of Social Security disability

benefits is judicially estopped from asserting

that she is a “qualified individual with a

disability”

II. The weight, if any, to be given to statements

made in connection with the application for or

receipt of disability insurance benefits depends

upon the nature of the statements

A. General statements made in support of a

claim for disability benefits have little

relevance to a claim of discrimination under

the ADA

B. Specific factual assertions made or evidence

offered in support of an applicaton for dis-

ability benefits is relevant to an ADA action

if those representations are inconsistent with

specific factual assertions made in support

of the ADA claim

Conclusion

(IID)

2

19

BS

IV

TABLE OF AUTHORITIES Cases—Continued: —

Cases: Mohamed v. Marriott Int'l, Inc., 944 F. Supp. 277

Page (S.D.N.Y. 1996) 17, 28

Alexander v. Gardner-Denver Co., 415 US. 56 Moore v. Payless Shoe Source, Inc., 189 F. ad

(1974) 21 1210 (8th Cir. 1998), petition for cert. pending,

Astoria Fed. Sav. & Loan Ass'n v. Solomino, 501 No. 98-5286 sone 28, 26

Morristown & Brie N. N., In re, 677 F.2d 360 (3d Cir.

U.S. 104 (1991) 21, 26 om

Bowen v. Yuckert, 482 U.S. 187 (1987) . 89, 12, 13, 14, 18 N 21

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) 18 yoo Entergy Operations, Inc., 118 S. Ct. 838

21

Chandler v. Roudebush, 425 U.S. 840 (1970 26

Chevron U.S.A. Ine. v. Natural Resources Defense

Council, Inc, 467 U.S. 887 (1994) 18

D’Aprile v. Fleet Servs. Corp., 92 F.3d 1 (ist Cir.

1996) 16

Davis v. Wakelee, 156 U.S. 680 (1895) 19

EEOC v. Arabian American Oil Co., 499 U.S. 244

(1991) 18

Furnco Constr. Corp. v. Waters, 488 U.S. 567

(1978) 20

Griffith v. Wal-Mart Stores, Inc., 980 F. Supp.

1167 (E.D. Ky. 1996), rev'd on other grounds, 135

F. gd 376 (6th Cir. 1998), petition for cert. pending,

No. 97-1991 17, 23, 24

Heckler v. Campbell, 461 U.S. 458 (1983) .......... 9, 12, 13, 18

Insurance Co. v. Weide, 78 U.S. (11 Wall.) 438 (1870) .... 20

Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998) . 23, 24, 29

Konstantinidis v. Chen, 626 F.2d 998 (D.C. Cir.

1980) 19

Krouse v. American Sterilizer Co., 126 F.3d 494

(3d Cir. 1997) 24

Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996), cert.

denied, 519 U.S. 113 (1997) 20

Manning v. Insurance Co., 100 U.S. 693 (18799 20

Mathews v. Eldridge, 424 U.S. 319 (1976) 8, 11

McKennon v. Nashville Banner Publ y Co., 513 U.S.

352 (1995) 21,29

Overton v. Reilly, 977 F.2d 1190 (th Cir. 1992) 14

Perma Life Mufflers, Inc. v. International Parts

Corp. 392 U.S. 134 (1968) 21

Rascon v. US West Communications, Inc., 148

F.3d 1824 (10th Cir. 1998) 23

Schweiker v. Gray Panthers, 453 U.S. 34 (1981 11

Skidmore v. Swift & Co., 323 U.S. 184 (1944

Smith v. Travelers Ins. Co., 488 F. 2d 373 (6th Cir.

1971), cert. denied, 404 U.S. 882 (1971) 19

Swanks v. Washington Metro. Area Transit Auth.,

116 F.3d 582 (D.C. Cir. 1997) 22,23

Talavera v. School Bd., 129 F.3d 1214 (11th Cir.

1997) 23

UMWA 1974 Pension v. Pittston Co., 984 F.2d 469

(D.C Cir.), cert. denied, 509 U.S. 924 (1998) 19

United States v. 49.01 Acres of Land, More or Less,

802 F. 2d 387 (10th Cir. 1986) 19

University of Tenn. v. Elliott, 478 U.S. 788 (1986) ......... 26

Weigel v. Target Stores, 122 F.3d 461 (7th Cir.

1997) 23,24

Weinberger v. Salfi, 422 U.S. 749 (1975) 11

Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C.

Cir. 1997) 12

VI

Statutes and regulations:

Age Discrimination in Employment Act of 1967,

29 U.S.C, 621 et seq.

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seq

42 U.S.C. 12101

42 U.S.C. 12101(a\(7)

Tit. I. 42 U.S.C. 12111 et seq. ...

42 U.S.C. 12111(8) 45,

42 U.S.C. 12111(9(B)

42 U.S.C, 12112(a)

4 U.S.C. 12116 1

42 U.S.C. 121170 1, 18, 21,

Tit. III. 42 U.S.C. 12181 et seq.

Civil Rights Act of 1964, Tit. VII. 42 U.S.C. 20000

20, 21, 26

* 1

2

= ®

>

Social Security Act, 42 U.S.C. 301 ef seq.:

Tit. II. 42 U.S.C. 401 et seq.

42 U.S.C. 405(u) — 28

42 U.S.C. 422(a) 14

42 U.S.C. 422(c) 14

1

S

x

42 U.S.C. 423 (1994 Supp. II 1996)

42 U.S.C. AND)

42 U.S.C. 423(d)(1A)

42 U.S.C. Nd) 8, 10, 11

4 U.S.C. Ken) 14

Tit. VII, 42 U.S.C, 901 et seq.:

2 U.S. C. 901 1

Tit. XVI, 42 U.S.C. 1381 et seq. 8

20 C. F. R. Pt. 404:

Subpt. G:

Section 404.603 17

Section 404.610(a) 17

Section 404.61 1(a) 17

Subpt. J:

Section 404.988(c) 28-29

Subpt. P:

Section 404.1520(b) 9

Section 404.1520(c) 9

VII

Regulations Continued:

Page

Section 404. 15 200d) 9, 12

Section 404.1520(e) 4

Section 404.1520(f) 90

Section 404.1521 9

Section 404.1525 9, 12

Section 404.1526 9, 12

Section 404.1560(c) 9

Section 404. 1592 14

Section 404. 159 2a 14

App. 1 9

29 C. F. R. Pt. 1630:

Section 1690. Am) 10

Section 1620.200048) 14

App. 16

Miscellaneous:

EEOC: Benefits Applications and ADA Claims (Feb.

12, 1997), reprinted in Bureau of Nat’! Affairs, Inc.,

Americans with Disabilities Act Manual 10, 12,

14, 16, 23, 25

H. R. Rep. No. 1189, 84th Cong., Ist Sess. (1955) 8, 15

H. R. Rep. No. 485, 101st Cong., Ist Sess., Pt. 2

(1990) 7, 15

Memorandum from Daniel L. Skoler, Assoc. Comm'r

for Hearings and Appeals, SSA, to Administrative

Appeals Judges (June 2,1993), reprinted in 2 Social

Security Practice Guide (1997) 10, 11, 23

Memorandum from Peter Wheeler, Assoc. Comm’r

for Research, Education, and Statistics, SSA, to Jane

Ross, Deputy Comm’r for Policy, SSA (June 3, 1998) .... 27

2 McCormick on Evidence (John W. Strong ed., 4th

Ed. 1992) 20

S. Rep. No. 744, 90th Cong., Ist Sess. (1967) 14

Social Security Admin., Annual Report of Continuing

Disability Reviews (Aug. 1998) 13

Social Security Admin., Annual Report of the Supple-

mental Security Income Program (May 1998) 13

VIII

Miscellaneous —Continued:

Social Security Admin., Disabled Workers Beneficiary

Statistics (July 2, 1998)

Statement by the President upon Signing the Social

Security Amendments of 1956, Pub. Papers J 158

(Aug. 1, 1956)

S. Stoddard et al., U.S. Dep’t of Edue., Chartbook on

Work and Disability in the United States (InfoUse

1998)

C. Wright et al., Federal Practice and Procedure

(1981 & Supp. 1998)

19, 22

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 97-1008

CAROLYN C. CLEVELAND, PETITIONER

.

POLICY MANAGEMENT SYSTEMS CORP., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE

SUPPORTING PETITIONER

INTEREST OF THE AMICI CURIAE

This case concerns the appropriate impact of an em-

ployee’s application for or receipt of disability insurance

benefits under the Social Security Act, 42 U.S.C. 423 (1994 &

Supp. II 1996), on the employee’s suit against her mployer

alleging that the employer discharged her in violation of the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

12101 et seg. The Equal Employment Opportunity Commis-

sion (EEOC) is authorized to issue regulations to carry out

Title I of the ADA and to enforce it with respect to private

employers. 42 U.S.C. 12116, 12117(a). The Attorney General

enforces Title I of the ADA with respect to public employ-

ers. 42 U.S.C. 12117(a). The Social Security Administration

(SSA) administers the disability standards of the Social

Security Act. 42 U.S.C. 901. While the petition for

certiorari in this case was pending, the United States sub-

(1)

2

mitted a brief as amicus curiae in response to an order of this

Court inviting its views.

STATEMENT

1. Petitioner Carolyn Cleveland began working for re-

spondent Policy Management Systems Corporation in

August 1993. Pet. App. 2a. Petitioner suffered a stroke in

January 1994 and took a leave of absence from work. Ibid.

On January 26, 1994, she signed an application for Social Se-

curity disability benefits prepared by her daughter in which

she certified, using the standard language on forms gener-

ated by SSA’s computerized application system, that she was

“unable to work because of [her] disabling condition on

January 7, 1994’ and that she was ‘still disabled. bid.

(quoting application).

In April 1994, petitioner’s physician released her to return

to work. Pet. App. 2a. Petitioner resumed her job with re-

spondent and notified the SSA of the change in her condition.

Id. at 2a-3a. The SSA subsequently confirmed that peti-

tioner would not be entitled to benefits because she had

returned to work full time and was earning more than $500 a

month. See J.A. 38-39.

Petitioner encountered difficulties performing her job on

her return to work and asked for several accommodations

that would assist her in performing the essential functions of

the job. Pet. App. at 3a. Respondent denied all of peti-

Joner’s requested accommodations and, in July 1994, termi-

nated her employment. Ibid.

On September 14, petitioner renewed her application for

Social Security disability benefits by filing a “Request for

Reconsideration.” Pet. App. 3a. Again using the standard

language contained on forms generate by the SSA,

petitioner represented that she “ccntinue[' to be disabled.”

Ibid. (quoting Request for Reconsideration). Petitioner also

stated that her employer discharged her because she “could

no longer do the job because of [her] condition.” Ibid.

3

(quoting Work Activity Report submitted in conjunction

with Request for Reconsideration). Petitioner filed a second

Request for Reconsideration in January 1995, reaffirming

that she was “unable to work,” ibid., again using the stan-

dard language in SSA forms.

Petitioner made no statement about her ability to perform

her prior job with reasonable accommodations in any of her

submissions to the SSA, and she was not asked to make such

a statement. The matter was subsequently referred to an

administrative law judge (ALJ), who, in September 1995,

awarded petitioner disability benefits effective retroactively

to January 7, 1994. Pet. App. 3a.

2. One week before the ALJ’s decision, petitioner

brought suit under the ADA. Pet. App. 3a-4a. She claimed

that respondent terminated her employment because of her

disability. Compl. J 7. Petitioner further alleged that re-

= unlawfully failed to accommodate her disability.

Respondent moved for partial summary judgment, argu-

ing that “[petitioner] could not establish a prima facie case

under the ADA, as her representations in her application for,

and her receipt of, social security disability benefits estopped

her from claiming that she is a ‘qualified individual with a

disability. Pet. App. 4a. In response to the motion, peti-

tioner submitted an affidavit detailing various accommoda-

tions that she had requested. See J.A. 95-98. The affidavit

alleged that all of the accommodations were denied and that

petitioner’s condition worsened as a consequence of her

firing. Ibid. Petitioner also submitted an affidavit from her

physician stating, “[p]rior to [petitioner’s] termination, I had

anticipated that [she] would ultimately reach a near 100%

recovery” but, following her termination, “she became

depressed and her aphasia became worse.” J.A. 100-101.

Petitioner’s physician opined that “had [petitioner] been

given training, time and assistance on the job, instead of

being terminated, she would have continued to recover from

4

the stroke.” J.A. 101. The district court granted partial

summary judgment for respondent. Pet. App. 4a.

3. On appeal, the Fifth Circuit affirmed. Pet. App. la-

13a. The court first rejected “a per se rule that automati-

cally estops an applicant for or recipient of social security

disability benefits from asserting a claim of discrimination

under the ADA.” Id. at Sa. The court recognized that, be-

cause of the different legal standards involved, claims under

the Social Security Act and the ADA “would not necessarily

be mutually exclusive.” Id. at 9a. The court nonetheless

adopted a rule that calls for the application of estoppel in the

vast majority of cases in which an individual applies for or

receives social security disability benefits. Id. at 1la-12a.

Specifically, the court ruled that “the application for or the

receipt of Social Security disability benefits creates a rebut-

table presumption that the claimant or recipient of such

benefits is judicially estopped from asserting that he is a

‘qualified individual with a disability.“ Pet App. lla. The

court opined that an individual would be able to overcome

that presumption, if at all, only “under some limited and

highly unusual set of circumstances.” Id. at ga. Applying

that standard, the court ruled that petitioner had not “raised

a genuine issue of material fact to rebut the presumption

that, while she remains disabled for purposes of Social

Security, she is estopped from asserting that she is a

‘qualified individual with a disability. Jd. at 12a.

Petitioner sought rehearing. The EEOC filed a brief as

amicus curiae in her support. Pet. App. 18a-35a. The panel

denied the petition for rehearing without explanation. Id. at

16a-17a.

SUMMARY OF ARGUMENT

Neither application for nor receipt of Social Security dis-

ability benefits warrants a rebuttable presumption that the

applicant or recipient is judicially estopped from asserting

that she is a “qualified individual with a disability” (42 U.S.C.

5

12111(8)) under the ADA. A person may have a medical con-

dition that entitles her to disability benefits under the Social

Security Act and nevertheless be a qualified individual with

a disability under the ADA for several reasons. First, an

individual is “qualified” under the ADA if she could perform

the essential functions of her job with “reasonable accommo-

dation.” Ibid. In contrast, a person may be entitled to

benefits under the Social Security Act even if she could have

performed her prior job with reasonable accommodation,

because the SSA does not speculate whether the ADA might

require an employer to make specific accommodations that

the employer has not in fact made. Second, a person may

qualify for Social Security disability benefits based on one of

a series of regulatory presumptions that she is unable to

work, even though the person is not actually prevented by

her impairment from performing all jobs. In contrast,

presumptions play no part in the ADA qualification analysis.

Third, the Social Security Act permits recipients to receive

benefits in certain circumstances even though they are

employed in order to encourage recipients to return to work

if possible. Finally, disability status may change over time,

so that a person who was discharged in violation of the ADA

because she was able to work at that time may become

progressively more disabled and then properly apply for and

receive disability benefits.

Because there is no necessary inconsistency between

receipt of or application for Social Security disability bene-

fits and status as a “qualified individual with a disability”

under the ADA, there is no justification to presume that a

benefit applicant or recipient is judicially estopped from

asserting that she is “qualified” under the ADA. Indeed, the

use of judicial estoppel to bar ADA actions would frustrate

the purposes of both the ADA and the disability provisions

of the Social Security Act. Social Security benefits and the

ADA are not necessarily alternative remedies between

which people with disabilities must choose. Rather, they are

6

complementary measures that provide financial support to

people with physical or mental impairments who face

practical barriers to work while at the same time encourag-

ing and facilitating their efforts to move off the benefit rolls

and to return to work.

Statements made in connection with a benefits applica-

tion, where relevant, should be considered as evidence in a

subsequent ADA action, but they should not trigger either a

per se bar to the ADA suit or a heightened evidentiary bur-

den on the plaintiff. General statements invoking the stan-

dard language of SSA benefit applications that the claimant

is “unable to work” or “disabled” have little, if any, relevance

to the issue of qualification in an ADA action, because the

connotations of those terms under the Social Security Act

are quite different from their meanings under the ADA. In

certain cases, however, an applicant for disability benefits

may make specific factual statements concerning her func-

tional capacities. In some of those cases, there may be an

inconsistency between those factual statements and her later

statements in support of an ADA claim. In that case, the

prior statements to the SSA may be relevant to the qualifi-

cation issue in the ADA action and may lead to a determina-

tion that relief under the ADA is not available or should be

limited.

ARGUMENT

I. NEITHER APPLICATION FOR NOR RECEIPT OF

DISABILITY INSURANCE BENEFITS UNDER

THE SOCIAL SECURITY ACT CREATES A

REBUTTABLE PRESUMPTION THAT THE

APPLICANT OR RECIPIENT IS JUDICIALLY

ESTOPPED FROM ASSERTING THAT SHE IS A

“QUALIFIED INDIVIDUAL WITH A DISABILITY”

UNDER THE ADA

A person may have a medical condition that entitles her to

disability benefits under the Social Security Act and also be

a qualified individual with a disability under the ADA. The

7

court of appeals acknowledged that fact (Pet. App. 10a-11a)

but considered it only “theoretically conceivable that under

some limited and highly unusual set of circumstances the two

claims would not necessarily be mutually exclusive” (id. at

8a-9a). The court therefore held that petitioner’s application

for and receipt of Social Security disability benefits created a

rebuttable presumption that she was estopped from assert-

ing that she is a qualified individual under the ADA and that

petitioner failed to rebut that presumption. The court of ap-

peals erred because the situation in which a person is both

eligible for Social Security disability benefits and “qualified”

under the ADA is neither theoretical nor unusual. More-

over, because “disability” and “inability to work” have sub-

stantially different meanings under the Social Security Act

and under the ADA, petitioner’s assertions to the SSA that

she was “disabled” and “unable to work” within the meaning

of the Social Security Act are in no way inconsistent with her

ADA claim. The court of appeals mistakenly viewed Social

Security disability benefits and the ADA as alternative

remedies between which a disabled person must ordinarily

‘choose, rather than complementary mechanisms that provide

financial support for disabled people and facilitate their

return to work.

A. A Claim For Social Security Disability Benefits Is Not

Inconsistent With A Valid ADA Claim

The ADA was enacted in 1990 to eradicate widespread

discrimination against individuals with disabilities and,

among other things, to enable disabled people to move off

government benefit rolls and to return to work. See 42

U.S.C. 12101; H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2,

at 32-34 (1990) (1990 House Report). To that end, the ADA

prohibits employers from discriminating against a “qualified

individual with a disability” because of the disability. 42

U.S.C. 12112(a). A “qualified individual with a disability” is

“an individual with a disability who, with or without rea-

8

sonable accommodation, can perform the essential functions”

of his job. 42 U.S.C. 12111(8). Reasonable accommodations

may include “job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition or

modification of equipment or devices, appropriate adjust-

ment or modifications of examinations, training materials or

policies, the provision of qualified readers or interpreters,

and other similar accommodations.” 42 U.S.C, 12111(9\B).

The disability provisions of the Social Security Act are de-

signed to provide certain disabled individuals with benefits

that, although not based on need, are intended to compen-

sate them for lost income or to protect them from indigence.

See, e., H.R. Rep. No. 1189, 84th Cong., Ist Sess. 4-5 (1955)

(1955 House Report); Mathews v. Eldridge, 424 U.S. 319,

340-341 & n.24 (1976). The Act provides that an insured

individual has a “disability” and is entitled to benefits if he is

unable to engage in “substantial gainful activity” because of

a “physical or mental impairment” that is expected to result

in death or that has lasted or can be expected to last for 12

months or more. 42 U.S.C. 423(a)(1)(D), 423(d)(1)(A). The

impairment must be “of such severity that he is not only

unable to do his previous work but cannot, considering his

age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national

economy.” 42 U.S.C. 423(d)(2)(A).’

Fe citations and discussion in this brief relate to the Social Security

Disability Insurance program (SSDI), authorized by Title II of the Social

Security Act, 42 U.S.C. 401 et seq., the program for which petitioner

applied and was found eligible. That program provides benefits to

disabled workers, their dependents, and their widows or widowers for

workers insured under the program. Title XVI of the Social Security Act

authorizes the Supplemental Security Income program (SSI), 42 U.S.C.

1381 et Se., which provides benefits to disabled individuals whose incomes

and assets fall below a specified level. Although the eligibility criteria

under the two programs differ in some respects (primarily in that SSI is

need-based and SSDI is insurance-based), the basic statutory definitions

of disability for adults under the two programs are the same. See Bowen

9

The SSA applies a five-step process to determine whether

an adult claimant qualifies for benefits. See Bowen v.

Yuckert, 482 U.S. 137, 140-142 (1987). First, the claimant

must not be engaged in “substantial gainful activity.” 20

C. F. R. 404.1520(b). Second, the claimant must have a medi-

cal impairment that is severe enough to limit significantly his

ability to do basie work activities. 20 C.F.R. 404.1520(c),

404.1521. Third, if the impairment is the same as, or equiva-

lent to, one of the impairments listed by the Secretary at

20 C.F.R. Part 404, Subpart P, Appendix 1, benefits are

awarded without further inquiry into the claimant’s actual

ability to work. 20 C. F. R. 404.1520(d), 404.1525, 404.1526; see

also Yuckert, 482 U.S. at 153; Heckler v. Campbell, 461 U.S.

458, 460 (1983). Fourth, if the claimant’s impairment does

not meet or equal one on the list, the claimant must be un-

able to perform his “past relevant work,” see 20 C.F.R.

404.1520(e); and, fifth, he must be unable to perform other

work that exists in significant numbers in the national econ-

omy, considering his age, education, and work experience,

see 20 C. F. R. 404.1520(f), 404.1560(c).

Given the different but complementary statutory

schemes, application for and receipt of Social Security

disability benefits are often fully consistent with a valid

ADA claim. First, a person is a “qualified individual with a

disability” under the ADA if he could perform the essential

functions of his job if his employer made reasonable

accommodations, but he may nonetheless be eligible for

Social Security disability benefits if his employer has not

made those accommodations. Second, a person may qualify

for disability benefits based on one of several presumptions

adopted by the SSA about the effect of certain physical

v. Yuckert, 482 U.S. 137, 140 (1987). Most of the reasoning in this brief

applies equally to both programs, and under neither program should

application for or receipt of benefits estop the applicant or recipient from

suing under the ADA.

10

conditions and other characteristics on ability to work, but

presumptions play no part in determining whether a person

is “qualified” under the ADA. Third, in certain

circumstances, a disability beneficiary may continue to

receive benefits under the Social Security Act even though

he is able to work. Finally, disability status may change over

time, so that an individual may be able to work when he is

terminated in violation of the ADA but become unable to

work so that he later properly applies for and receives

disability benefits.

1. As the EEOC has explained, the ADA’s definition of

the term “qualified individual with a disability” expressly

requires consideration whether a person could perform the

essential functions of his job with reasonable accommo-

dation. See 42 U.S.C. 12111(8); 29 C. F. R. 1630.2(m); EEOC:

Benefits Applications and ADA Claims (Feb. 12, 1997),

reprinted in Bureau of Nat'l Affairs, Inc., Americans with

Disabilities Act Manual (EEOC Guidance), No. 62, at

70:1255 (1997). In contrast, neither the Social Security Act

nor its implementing regulations preclude award of disability

benefits because the claimant could have performed his prior

job if his employer had made reasonable accommodations or

because he might be able to perform other jobs if other em-

ployers made such accommodations. See Memorandum from

Daniel L. Skoler, Assoc. Comm'r for Hearings and Appeals,

SSA, to Administrative Appeals Judges (June 2, 1993),

reprinted in 2 Social Security Practice Guide (SSA Guid-

ance), App. § 15009], at 15-401 to 15-402 (1997), cited in U.S.

Amicus Br. at 8, in Swanks v. Washington Metro. Area

Transit Auth., No. 96-7078 (D.C. Cir.) (Swanks Br.), reprint-

ed at Pet. App. 43a-44a.

The Social Security Act requires consideration of a claim-

ant’s ability to do “his previous work.” 42 U.S.C.

423(d)(2A). It does not require consideration of his ability

to perform his prior job with a possible ADA-mandated ac-

commodation that the employer, in fact, never provided. See

11

SSA Guidance at 15-401. Similarly, the Act requires consi-

deration whether a claimant is able to do other work that

“exists” in the national economy. 42 U.S.C. 423(d)(2)A). It

does not require consideration whether he could do jobs as

they might be modified by reasonable accommodations that

the ADA might require but that employers have not actually

made. See SSA Guidance at 15-401.

Thus, when the SSA, in step four of the sequential evalua-

tion process, considers whether an individual can perform his

“past relevant work,” the SSA does not consider potential

accommodations that the employer did not actually make.

SSA Guidance at 15-401. Nor does the SSA speculate

whether employers might be required by the ADA to make

specific accommodations, when, at step five, the SSA deter-

mines whether the claimant could perform other work that

exists in significant numbers in the national economy. Id. at

15-401 to 15-402.

That practice advances the Social Security Act’s purposes

to compensate disabled individuals for lost income and to

protect them from indigence. If the SSA denied benefits to a

disabled individual based on speculation that he would pre-

vail in an ADA suit, he would be deprived of financial

support for the lengthy period until the suit was resolved.

Moreover, because the reasonable-accommodation inquiry is

intensely fact specific, and the SSA has no special expertise

in applying the ADA, the SSA’s speculation might well

prove incorrect, in which case the claimant would have been

improperly denied benefits.’ Finally, providing benefits to a

disabled person who might be able to return to work if he

prevailed in an ADA suit advances the common goal of the

2 In addition, speculation about a highly fact-specific issue on which

the SSA has no special expertise would risk drawing the agency into long

evidentiary disputes that would consume government resources and

impair the efficiency of the disability program. Cf. Schweiker v. Gray

Panthers, 453 U.S. 34, 48 (1981); Weinberger v. Salfi, 422 U.S. 749, 782-785

(1975); see also Eldridge, 424 U.S. at 347-348.

12

Social Security Act and the ADA to facilitate the return of

people with disabilities to the work force, see pp. 14-15,

infra, by providing vital financial support while the person

pursues his remedy under the ADA.

Many ADA cases, including this one, turn on disputes

over reasonable accommodations rather than whether the

plaintiffs could work without any accommodations. Any such

case is potentially one in which the employee is eligible for

disability benefits under the Social Security Act but able to

work with reasonable accommodation under the ADA.

2. Another significant difference between the two statu-

tory schemes is that someone may qualify for disability

benefits based on one of several generalized presumptions

about his inability to work, but the determination whether

someone is “qualified” under the ADA must always be an

individualized one. See Yuckert, 482 U.S. at 153; Campbell,

461 U.S. at 460; EEOC Guidance at 70:1251, 70:1255.

Because of the use by the SSA of generalized presumptions,

a finding that a person is disabled for purposes of Social

Security benefits does not mean that there is no job that he

can perform. For example, at step three of the Social

Security determination process, an individual with an

impairment listed in the regulations (such as blindness) is

conclusively presumed to be “disabled” and “unable to work”

without any inquiry into his ability to do his past work or

other work that exists in the national economy (and even

though many people with that impairment may in fact be

working). See 20 C.F.R. 404.1520(d), 404.1525, 404.1526;

Swanks Br., Pet. App. 39a, 44a-45a; see also Whitbeck v.

Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997).

Similarly, at step five of the determination process, the SSA

may award benefits to someone who can perform a broad

range of jobs (involving sedentary, light, or even medium

work), based on a presumption that his age, education, or

lack of transferrable skills from past employment make it

13

unlikely that he could adjust to other work. See generally

Campbell, 461 U.S. at 460-462.

The SSA relies to some extent on generalized presump-

tions in order to ensure uniformity and efficiency in deter-

mining eligibility for disability benefits. See Yuckert, 482

U.S. at 153; Campbell, 461 U.S. at 461, 468. Efficiency is

important to the ability of the disability program to fulfill its

mission. Disability benefits enable recipients to sustain

themselves while they pursue other remedies that may be

available, such as the right to require their employers to

make reasonable accommodations under the ADA. Any

delay in eligibility determinations thus risks material harm

to applicants.

Efficiency is also vital given the volume of benefit applica-

tions processed by the SSA. As this Court has noted, the

Social Security hearing system is probably the largest adju-

dicative agency in the world. See Campbell, 461 U.S. at 461

n.2. The SSA estimates that it received more than 2.5 mil-

lion claims for disability benefits in 1997 and conducted

nearly 700,000 reviews of the disability status of existing re-

cipients. See Social Security Admin., Disabled Workers

Beneficiary Statistics 2 (July 2, 1998); Social Security

Admin., Annual Report of the Supplemental Security In-

come Program 25 (May 1998); Social Security Admin., An-

nual Report of Continuing Disability Reviews 4 (Aug. 1998).

Thus, as this Court has repeatedly recognized, some reliance

on general rules is essential. See Yuckert, 482 U.S. at 153;

Campbell, 461 U.S. at 461, 468.

The Court has therefore upheld as reasonable the SSA’s

use of general rules at step five of the evaluation process

when the SSA determines whether an applicant can perform

other work that exists in significant numbers in the national

economy. See Campbell, 461 U.S. at 467-468. The Court has

also described favorably the SSA’s rule under which an indi-

vidual with an impairment listed in the regulations is pre-

sumed to be “disabled” and “unable to work” without any

ee

14

inquiry into his actual ability to do his past work. See Yuck-

ert, 482 U.S. at 153. And, Congress itself approved that

practice when it crafted the current definition of disability in

1967. See S. Rep. No. 744, 90th Cong., Ist Sess. 49 (1967).

In contrast, the determination whether a person with a

disability is “qualified” to sue under the ADA always “re-

quires an individualized, case-by-case assessment of the spe-

cific 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 re-

quirements.” EEOC Guidance at 70:1255. See also 29

C. F. R. 1630.2(0)(3) (accommodation process requires consid-

eration of the “precise limitations resulting from the disabil-

ity and potential reasonable accommodations that could

overcome those limitations”). The ADA was intended to

substitute individualized assessment for stereotyped as-

sumptions, see 42 U.S.C. 12101(a)(7), and, in the employment

context, it requires a detailed evaluation of an individual's

ability to work with reasonable accomodations and an

employer's ability to make those accommodations. Those

evaluations are time consuming and are inconsistent with

the more streamlined decision-making necessary for the

efficient administration of the Social Security Act.

3. A third reason that “qualified” status under the ADA

is not inconsistent with receipt of Social Security disability

benefits is that the Social Security Act allows disability

insurance benefit recipients a trial work period of up to nine

months during which they can continue to receive full bene-

fits while they also work. See 42 U.S.C. 422(c), 423(e)(1); 20

C. F. R. 404.1592; Overton v. Reilly, 977 F.2d 1190, 1192 (7th

Cir. 1992). Individuals can also remain entitled to benefits

for a further period of time in any month during the period in

which their earnings fall below a specified level. See 20

C. F. R. 404.1592a. Those work incentives reflect the Social

Security Act’s purpose to encourage individuals with dis-

abilities to work whenever possible, see 42 U.S.C. 422(a);

15

1955 House Report, supra, at 5; Statement by the President

upon Signing the Social Security Amendments of 1956, Pub.

Papers 1 158, at 639 (Aug. 1, 1956), and demonstrate that

Congress recognized that persons who legitimately apply for

and receive Social Security disability benefits may none-

theless be or become able to work.

In that respect, the Social Security Act works in tandem

with the pro-work policies of the ADA. In enacting the

ADA, Congress assumed that many individuals on the dis-

ability benefit rolls could, with assistance or accommodation,

obtain employment. See 1990 House Report, supra, at 32-34.

Congress envisioned the reasonable-accommodation require-

ment, in particular, as a device for alleviating the “stagger-

ing levels of unemployment and poverty” among the ap-

proximately “8.2 million people with disabilities |». ho} want

to work but cannot find a job,” the majority of whom are

dependent upon “insurance payments or government bene-

fits for support.” Id. at 32, 33.

Congress thus did not intend to limit the protections of

the ADA to those individuals who fall outside the eligibility

standards for disability benefits under the Social Security

Act. Nor did it intend that the ADA would disqualify from

the bene it rolls disabled individuals who might be capable of

performing their prior work with reasonable accommo-

dations that had not been provided. To the contrary, Con-

gress enacted the ADA with the very goal of maximizing the

employment opportunities of individuals actually receiving

disability benefits. 1990 House Report, supra, at 32-34.

There is thus nothing either contradictory or inappropriate

in a disability beneficiary's use of the ADA to break down

the barriers to employment imposed by disability-based dis-

crimination. In fact, because many recipients of disability

benefits could work only if reasonable accommodations were

made, their only route from reliance on benefits to financial

independence is through the ADA’s protections.

16

4. The work incentive provisions in the Social Security

Act reflect not only the congressional goal of facilitating the

return of people with disabilities to the work force but also

the fact that disability status may change over time. That

fact provides a final reason why claims under the two Acts

may be fully consistent.

Under the ADA, the “determination of whether an indi-

vidual with a disability is qualified is to be made at the time

of the employment decision.” Interpretive Guidance on Title

I of the Americans with Disabilities Act, 29 C. F. R. Pt. 1630

App. at 351. An individual may apply for disability benefits,

however, a significant period of time after the individual has

been discharged. The individual may not be able to work at

that time even though she could have performed her job at

the time she was terminated. It is not unusual for an indi-

vidual with a disability to be capable of performing a job,

with or without accommodations, only to have her condition

worsen over time to the point that she can no longer work.

See EEOC Guidance at 70:1264-70:1265; see also D’Aprile v.

Fleet Servs. Corp., 92 F.3d 1, 4 (Ist Cir. 1996) (receipt of pri-

vate disability benefits not inconsistent with state law dis-

crimination claim because disability worsened after, and as a

result of, adverse employment action). Conversely, an indi-

vidual may apply for benefits because of a disability that

prevents her from working but may gradually recover so

that, at a certain point, she is again capable of working, per-

haps with accommodations.

5. Because of the differences described above, neither

the application for and receipt of disability benefits nor the

applicant’s assertion of “disability” and “inability to work”

within the meaning of the Social Security Act is factually

inconsistent with a claim that the person is a “qualified indi-

vidual with a disability” under the ADA. Those words are

terms of art under the respective statutes. Thus, when SSA

forms (often generated by the agency’s computerized appli-

cation system) use standard language asserting that the ap-

17

plicant is “unable to work” and “disabled,” see, e.g., Mo-

named v. Marriott Int'l, Inc., 944 F. Supp. 277, 279 (S. D. N. Y.

1996); Griffith v. Wal-Mart Stores, Inc., 930 F. Supp. 1167,

1168-1169 (E.D. Ky. 1996), rev'd on other grounds, 135 F.3d

876 (6th Cir. 1998), petition for cert. pending, No. 97-1991,

those standardized assertions incorporate the meaning of the

terms they use under the Social Security Act and its imple-

menting regulations. The forms do not ask whether the ap-

plicant can perform the essential functions of her prior job

with reasonable accommodations, i.e, whether she is a

“qualified individual” under the ADA. And the forms do not

suggest that a claimant may qualify the statements attesting

to her disability and inability to work by noting that she

would be able to work if she were provided reasonable ac-

commodations. Therefore, when petitioner filed a claim for

disability benefits under the Social Security Act, she was not

making any representation about her status as a “qualified

individual” under the ADA, and the court of appeals erred in

suggesting that she should have qualified her statements

attesting her disability and inability to work. See Pet. App.

12a & n. 19.

Neither respondent nor the court of appeals disputes the

interpretations of the ADA and the Social Security Act set

forth above, see Pet. App. 10a-1la; Br. in Opp. 18-19, nor is

Indeed. some of SSA’s standardized forms were revised after peti-

tioner submitted her application and requests for reconsideration and now

explicitly state that the terms they use have the meaning given those

terms in the Social Security Act.

4 To the contrary, SSA regulations state that, if a person “believe/s]”

that she “may be entitled to benefits,” she “should file an application,” 20

C.F.R. 404.603 (emphasis added), on forms prescribed by the SSA. 20

C. F. R. 463.610(a), 404.611(a). Thus, someone who files a benefits applica-

tion with the SSA and invokes the standardized claims that she is

“disabled” and “unable to work” is, in essence, simply requesting that the

SSA apply its technical and specialized rules to determine if she is entitled

to disability benefits.

18

there any basis to do so. If there were any question of the

validity of the interpretations, which there is not, this Court

should defer to the agencies charged with administering the

statutes. The SSA’s interpretation of the Social Security

Act is entitled to great deference. See Yuckert, 482 U.S. at

145; Campbell, 461 U.S. at 466. The EEOC’s interpretation

of Title I of the ADA is entitled to comparable deference be-

cause the EEOC has been directed by Congress to issue

regulations to implement the statute, 42 U.S.C. 12116, and

has responsibility to enforce it in court with respect to pri-

vate employers, 42 U.S.C. 12117(a). See Bragdon v. Abbott,

118 S.Ct. 2196, 2209 (1998) (Justice Department's interpreta-

tion of ADA Title III receives deference under Chevron

U.S.A. Ine. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), because of Department’s regulatory and en-

forcement responsibility for that Title). Cf. EEOC v. Ara-

bian Am. Oil Co., 499 U.S. 244, 257-258 (1991) (declining to

accord deference to EEOC’s Guideline on extraterritorial

application of Title VII because EEOC lacks regulatory

authority over Title VII). In any event, the EEOC’s inter-

pretation of the requirements of the ADA is a “well-rea-

soned view| | of the agenely] implementing [the] statute” to

which the Court “may properly resort for guidance.” Brag-

don, 118 S.Ct. at 2207 (quoting Skidmore v. Swift & Co., 323

U.S. 134, 139-140 (1944)). Finally, because there is no dis-

pute that those interpretations did in fact govern the appli-

cation and award of benefits in this case and petitioner’s

claim for relief under the ADA, there is no support for the

suggestion that petitioner has taken inconsistent positions

by making claims under both statutes.

19

B. The Court Of Appeals Erred In Adopting A

Rebuttable Presumption That An Applicant For Or

Recipient Of Social Security Disability Benefits Is

Judicially Estopped From Asserting That She Is A

“Qualified Individual With A Disability”

1. Because there is no inconsistency between the receipt

of or application for Social Security benefits and status as a

“qualified individual” under the ADA, the court of appeals

erred in presuming that a benefit applicant or recipient is

judicially estopped from asserting that she is qualified under

the ADA. Judicial estoppel is an equitable doctrine, ac-

cepted by some jurisdictions, that seeks to protect the integ-

rity of the judicial process by barring a party from asserting

in a legal proceeding a position contrary to a position that

the party took in the same or an earlier proceeding. See Pet.

App. 8a; see generally C. Wright et al., Federal Practice and

Procedure § 4477 (1981 & Supp. 1998); Konstantinidis v.

Chen, 626 F. 2d 933, 937-938 (D.C. Cir. 1980). Judicial estop-

pel is properly invoked only when a litigant seeks to advance

a position that conflicts with a prior position. See Wright,

supra, § 4477, at 782.784.

The doctrine of judicial estoppel has not been universally applied

even when there are specific contradictory statements under oath. Al-

though this Court has recognized the related doctrine of equitable

estoppel (which requires that the party that seeks the benefit of estoppel

have actually relied on the prior inconsistent position), see Davis v.

Wakelee, 156 U.S. 680, 689-691 (1895), the Court has not passed on the

propriety of judicial estoppel. Two courts of appeals do not recognize the

doctrine at all and instead treat prior inconsistent statements as relevant,

but not preclusive, in a subsequent judicial action. See UMWA 1974

Pension v. Pittston Co., 984 F.2d 469, 477-478 (D.C. Cir.), cert. denied, 509

U.S. 924 (1993); United States v. 49.01 Acres of Land, More or Less, 802

F. 2d 387, 390 (10th Cir. 1986). Other courts have limited the doctrine to

cases in which prior inconsistent statements were made in judicial

proceedings. See, e. g., Smith v. Travelers Ins. Co., 438 F.2d 373, 377 (6th

Cir.), cert. denied, 404 U.S. 832 (1971). Still other courts apply estoppel

20

Presumptions, in turn, are appropriate when proof of a

particular fact renders the existence of another fact suffi-

ciently “probable” to make it “sensible and timesaving to as-

sume the truth of [that other fact) until the adversary dis-

proves it.” 2 McCormick on Evidence § 343, at 454-455 (J.

Strong ed., 4th ed. 1992). See, ., Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978) (presumption created by

prima facie Title VII case is appropriate because those facts,

if unexplained, suggest “it is more likely than not” that the

employer's acts were discriminatory); Manning v. Insurance

Co., 100 U.S. 693, 698 (1879) (“presumed fact must have an

immediate cefinection with or relation to the established fact

from which it is inferred”); Jnswrance Co. v. Weide, 78 U.S.

(11 Wall.) 438, 441-442 (1870) (“A presumption is an inference

as to the existence of a fact not actually known, arising from

its usual connection with another which is known.”).

Here, there is no empirical basis for concluding that the

fact that an individual has applied for or received Social

Security disability benefits means that it is probable, likely,

or usual that the disability and ADA claims are in conflict.

As discussed above, the two claims are reconcilable in a

variety of ways: because as in this case, the ADA claim turns

on the issue of reasonable accommodation; or because dis-

ability payments were awarded based on regulatory pre-

sumptions; or because the claimant was receiving benefits

under one of the Social Security Act’s work incentive provi-

sions; or because the claimant’s disability status has

changed. The two Acts serve persons with mental or

physical impairments in complementary ways, and there is

no conflict between claims under both statutes.

2. More fundamentally, “[clourts do not, of course, have

free rein to impose rules of preclusion, as a matter of policy,

only if the prior inconsistent position was actually accepted by the court.

See, ¢.g., Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996), cert. denied,

519 U.S. 1113 (1997).

21

when the interpretation of a statute is at hand.” Astoria

Fed. Sav. & Loan Ass'n v. Solomino, 501 U.S. 104, 108

(1991). The use of judicial estoppel to bar an action under

the ADA is inconsistent with the statutory scheme and

would frustrate the purposes of both the ADA and the Social

Security Act. Like many other anti-discrimination statutes,

the ADA relies in large part on private suits to vindicate the

statute’s anti-discrimination goal. See 42 U.S.C. 12117(a)

(inco ing Title VII's remedial scheme); Alexander v.

Ga Denver Co., 415 U.S. 36, 45 (1974). Litigation under

the ADA promotes the public interest of “forcing employers

to consider and examine their motivations, and of penalizing

them for employment decisions that spring from * * *

discrimination.” McKennon v. Nashville Banner Publ’g Co.,

513 U.S. 352, 362 (1995). Thus, the objectives of the ADA

are furthered whenever “a single employee establishes that

an employer has discriminated against him or her.” Id. at

358. “The disclosure through litigation of incidents or prac-

tices which violate national policies respecting nondiscrimi-

nation in the work force is itself important, for the occur-

rence of violations may disclose patterns of noncompliance

resulting from misappreciation of the Act’s operation or en-

trenched resistance to its command, either of which can be of

industry-wide significance.” J. at 358-359.

As this Court has recognized, application of equitable bar

doctrines is therefore inappropriate “where a private suit

serves important public purposes.” See McKennon, 513 U.S.

at 360 (quoting Perma Life Mufflers, Inc. v. International

Parts Corp., 392 U.S. 134, 138 (1968)). Cf. Oubre v. Entergy

Operations, Inc., 118 S.Ct. 838, 841-842 (1998) (rejecting eq-

uitable estoppel and ratification defenses to ADEA claim

because they would “frustrate the statute’s practical opera-

tion as well as its formal command”). See also In re Morris-

town & Erie R.R., 677 F.2d 360, 368 n.10 (3d Cir. 1982) (judi-

cial estoppel is not applied when the plaintiff's suit “impli-

cates not only the relevant interests of the litigating parties,

22

but also the public’s interest in promoting the policies

underlying the statute”). In those circumstances, “broad

interests of public policy” “make it important to allow a

change of positions that might seem inappropriate as a

matter of merely private interests.” Wright, supra, § 4477,

at 784.

Application of judicial estoppel would also frustrate the

common purpose of the ADA and the Social Security Act to

enable persons with disabilities to move off the benefit rolls

and to return to work. Individuals with potentially meritori-

ous ADA claims frequently apply for disability benefits in

order to support themselves following their discharge from

employment. They apply for (and often properly receive)

benefits because they face real-world barriers to employ-

ment, even though they could work with reasonable accom-

modations. They are therefore qualified individuals with

disabilities under the ADA. If they are able to bring ADA

actions, they may ultimately return to work, as Congress

envisioned. The application of judicial estoppel improperly

bars them from maintaining actions under the ADA and thus

increases the likelihood that they will remain on the benefit

rolls.

Finally, application of judicial estoppel ignores the practi-

cal difficulties of requiring an individual who has stopped

working because of health problems to choose between

seeking disability benefits and pursuing a remedy under the

ADA. It is often uncertain whether ‘such a person ultimately

will be determined to be disabled and thus entitled to

benefits under the Social Security Act and at least equally

uncertain whether he could obtain relief under the ADA.

Resolution of those issues can be a lengthy process. Given

the uncertainties and delays, a rule that application for

Social Security benefits precludes ADA relief would place

that individual in what several courts have described as an

“untenable” position. See Swanks v. Washington Metro.

Area Transit Auth., 116 F.3d 582, 586 (D.C. Cir. 1997);

23

Mohamed, 944 F. Supp. at 284. That result is not justified by

the language of either the two statutes or their im-

plementing regulations and would undermine the purposes

of both statutes. See pp. 7-22, supra.

3. Both the SSA and the EEOC have therefore con-

cluded that application for or receipt of Social Security dis-

ability benefits should not estop the applicant or recipient

from bringing an ADA claim. See EEOC Guidance at

70:1251-70:1252, 70:1254-70:1257; SSA Guidance at 15-400 to

15-402. Those well-reasoned views, coming from the agen-

cies responsible for administering the statutes at issue, are

entitled to deference. See p. 18, supra.

The majority of the courts of appeals have likewise re

jected both the presumptive and the automatic application of

judicial estoppel based on application for or receipt of dis-

ability benefits. See, g., Rascon v. US West Communica-

tions, Inc., 143 F.3d 1324, 1330-1332 (10th Cir. 1998); John-

son v. Oregon, 141 F.3d 1361, 1366-1371 (9th Cir. 1998);

Moore v. Payless Shoe Source, Inc., 139 F.3d 1210, 1212 (8th

Cir. 1998), petition for cert. pending, No. 98-5286; Griffith,

135 F.3d at 380-383; Talavera v. School Bd., 129 F.3d 1214,

1217-1220 (11th Cir. 1997); Weigel v. Target Stores, 122 F.3d

461, 465-468 (7th Cir. 1997); Swanks, 116 F.3d at 584-587.

Those courts have recognized that, primarily because of the

different legal standards involved, claims for disability

benefits under the Social Security Act are not “conclusive as

to the ADA [qualification] issue.” E.., Weigel, 122 F. Ad at

468.°

Although those courts agree that the doctrine of judicial estoppel

should not automatically or presumptively apply in the present context,

they have taken different views of the evidentiary weight to be accorded a

prior claim for disability benefits. Compare, „g. Griffith, 135 F.3d at 383

(statements made in support of a benefit claim should be analyzed “under

traditional summary judgment principles” as possibly relevant evidence

bearing on the ADA qualification issue) with Moore, 139 F.3d at 1213

(ADA plaintiff must produce “strong countervailing evidence” to over-

24

II. THE WEIGHT, IF ANY, TO BE GIVEN TO

STATEMENTS MADE IN CONNECTION WITH

THE APPLICATION FOR OR RECEIPT OF DIS-

ABILITY INSURANCE BENEFITS DEPENDS

UPON THE NATURE OF THE STATEMENTS

In the absence of estoppel, a court entertaining an ADA

claim is free to give statements that the ADA claimant made

in connection with an application for Social Security dis-

ability benefits the evidentiary weight that the statements

deserve. Although, for the reasons set forth above, those

statements will seldom be dispositive of the ADA claim,

where relevant, they should be considered as evidence in the

ADA action.

A. General Statements Made In Support Of A Claim For

Disability Benefits Have Little Relevance To A Claim

Of Discrimination Under The ADA

Primarily because of the different legal standards applied

under the two statutes, general statements made in support

of a claim for disability benefits have little, if any, relevance

to a discrimination claim under the ADA. In assessing the

weight to be given statements on a disability benefit applica-

tion, one must consider the context in which those state-

ments were made. As one court of appeals has noted, terms

such as “‘totally disabled,’ ‘wholly unable to work,’ or some

other variant to the same effect” are terms of art, deriving

their meaning from a particular statutory context. Weigel,

122 F.3d at 467-468. The fact that an individual states that

he or she is “disabled” or “unable to work” within the mean-

come prior sworn statements of a disability); see also Johnson, 141 F.3d at

1369 (leaving open the possibility that estoppel might apply in some cases

but stating that, “in most cases,” “‘[s}traightforward summary judgment

analysis, rather than theories of estoppel’ will be appropriate”) (quoting

Griffith, 135 F. 3d at 382-383)); Krouse v. American Sterilizer Co., 126 F.3d

494, 502-503 & nn.3-5 (3d Cir. 1997) (suggesting that estoppel might apply

when there are unconditional assertions of an inability to work).

25

ing of the legal standards applied by the SSA does not pre-

clude the possibility that the individual is a “qualified indi-

vidual” under the ADA. It simply means that the individual

believes that he or she may meet the eligibility standards for

disability benefits, as those standards are applied by the

SSA. See pp. 16-17 & n.4, supra. The mere certification of

eligibility for disability benefits, using the vernacular of the

SSA, thus has little bearing on the ADA qualification issue?

This case illustrates the point. In applying for Social Se-

curity disability benefits, petitioner made representations on

a computerized application generated by the SSA, using the

terminology supplied by the SSA. She claimed that she was

“unable to work” but only in the narrow context of the legal

standards applied by the SSA. Petitioner never claimed that

she was unable to perform her prior job with reasonable ac-

commodation. Petitioner, in fact, said nothing in her applica-

tion that was incompatible with her claim that she was a

“qualified individual” under the ADA. Petitioner’s applica-

tion represents the prototypical case of a general claim for

disability benefits that is marginally relevant, if at all, to the

issue of qualification in an ADA action. Yet, in holding that

petitioner was estopped from asserting that she was “quali-

fied” under the ADA, the court of appeals focused exclu-

The Social Security Act is not the only disability benefit program.

Many private insurance plans and state disability insurance programs

(such as workers’ compensation) award benefits upon similar findings of

“disability” or “inability to work” within the meaning of the legal stan-

dards applied under those plans or programs. The EEOC has carefully

studied the legal standards used in the private insurance and workers’

compensation contexts and has concluded that most of those plans and

programs do not “distinguish between marginal and essential functions

and do not consider whether an individual can work with reasonable

accommodation.” EEOC Guidance at 70:1257-70:1258. Statements made

in support of a claim for disability benefits in those other contexts are

ordinarily entitled to no more weight in an ADA action than assertions

made in support of a claim for disability benefits under the Socia] Security

Act.

26

sively on petitioner's use of standardized language contained

in SSA’s forms that asserted her disability and inability to

work, without even considering what that language means in

the context of the Social Security disability program. See

Pet. App. 12a.

The fact that the SSA awarded benefits to petitioner does

not change the analysis. As described above, the SSA relies

upon a complex five-step process to determine eligibility for

disability benefits. The legal standards applied under that

process are not tailored to the ADA’s qualification stan-

dards. See pp. 7-15, supra. Standing alone, an award of

disability benefits under the Social Security Act means one

thing only—that the applicant is disabled within the meaning

of the legal standards applied under the Social Security Act.“

The Eighth Circuit has erroneously suggested that an

ADA plaintiff who has applied for or received disability

benefits must produce “strong countervailing evidence” to

withstand summary judgment on the qualification issue. See

Moore, 139 F.3d at 1213. As we explain below, in some

circumstances, statements made in a disability benefit appli-

cation may well have relevance to an ADA claim. In no case,

however, should the mere application for or receipt of dis-

ability benefits or a conclusory statement that one is “dis-

abled” or “unable to work” (under SSA’s legal scheme) re-

* This Court has held that administrative findings (unreviewed by a

court) “enjoy no preclusive effect in subsequent judicial litigation” under

either Title VII of the Civil Rights Act of 1964 or the Age Discrimination

in Employment Act of 1967. Astoria Fed. Sav. & Loan Ass'n, 501 U.S. at

113; accord University of Tenn. v. Elliott, 478 U.S. 788, 794-796 (1986).

Those holdings logically extend to Title I of the ADA, which incorporates

Title VII's enforcement procedures. See 42 U.S.C. 12117(a). Thus, even if

the legal standards under the two Acts were the same, findings made in an

SSA proceeding in support of an award of disability benefits would nut be

binding in a subsequent ADA action. The findings might, however, be

relevant evidence in the subsequent action. See Astoria Fed. Sav. & Laan

Ass'n, 501 U.S. at 114; Chandler v. Roudebush, 425 U.S. 840, 868 n.39

(1976).

27

quire the plaintiff to meet a heightened evidentiary burden

in order to survive summary judgment. When, under normal

summary judgment standards, there is competent evidence

to support a finding that an individual “with or without rea-

sonable accommodation, can perform the essential functions

of the employment position that such individual holds or de-

sires,” 42 U.S.C. 12111(8), the individual should be permitted

to pursue her ADA claim, notwithstanding a prior claim for

disability insurance benefits. Any other standard would

threaten to interpose, under the guise of an evidentiary

standard, the equivalent of the estoppel doctrine applied by

the court of appeals in this case. The result would be an ef-

fective bar to many ADA actions, leaving significant num-

bers of disabled individuals without the legal recourse for

disability discrimination to which they are entitled under the

ADA.’

B. Specific Factual Assertions Made Or Evidence

Offered In Support Of An Application For Disability

Benefits Is Relevant To An ADA Action If Those

Representations Are Inconsistent With Specific

Factual Assertions Made In Support Of The ADA

Although a general claim of disability status under the So-

cial Security Act has little relevance to a subsequent ADA

claim, in some cases, the applicant for disability benefits will

have made specific factual assertions or offered specific

evidence concerning her functional capacities. In those

® Approximately 7.8 million adults received disability benefits under

the Social Security Act as of the end of 1997. Memorandum from Peter

Wheeler, Assoc. Comm'r for Research, Education, and Statistics, SSA, to

Jane Ross, Deputy Comm’r for Policy, SSA, 2 June 3, 1998). That number

accounts for nearly 25% of the approximately 32 million working-age

people with a disability in the United States. See S. Stoddard et al., U.S.

Dep't of Educ., Chartbook on Work and Disability in the United States 4

_ (IinfoUse 1998).

28

cases, the assertions or evidence may be relevant to the in-

dividual’s ability to perform the essential functions of a

particular job and thus to the individual's claim under the

ADA.

The relevance of those assertions or evidence depends

upon the circumstances. One critical circumstance is timing.

Because disability status may change over time, as explained

above, see p. 16, supra, an applicant’s representations about

her functional capacities at the time she applies for benefits

may not be probative of her functional capacities at the time

of the challenged employment decision, which is the critical

time for assessing her qualification to sue under the ADA.

In addition, an applicant’s representations about her func-

tional capacities may not have addressed how those func-

tional capacities might be expanded if an employer provided

reasonable accommodations.

Specific factual representations in connection with a bene-

fits application that are indeed inconsistent with later asser-

tions in support of an ADA claim (representations which are

not present in this case) would be relevant evidence in the

ADA action. They might be used to impeach the claimant

and thus make it difficult for her to prevail on her ADA

claim. Whether she prevails, however, should depend on

whether the statements made in support of the ADA claim

are determined to be true or false, not on the invocation of a

legal bar against even taking the assertedly inconsistent

positions. See pp. 20-23, supra (explaining why judicial

estoppel is never appropriate in an ADA suit).

If the plaintiff prevails in the ADA action in part because

she disclaims the truth of prior statements or evidence on

which the SSA relied to award benefits, that fact may be

taken into account at the relief stage of the case. For

example, amounts received as disability benefits might be

offset against any monetary relief obtained under the ADA.

Alternatively, the SSA could seek to terminate the benefits

and to recoup any overpayments, see 42 U.S.C. 405(u); 20

29

C. F. R. 404.988(c), so that neither the employee nor the dis-

criminating employer would reap a windfall from misstate-

ments to the SSA.” Those options would avoid a double

recovery but permit the ADA action to go forward. Cf.

McKennon, 513 U.S. at 360-362 (after-acquired evidence of

misconduct on the plaintiffs part, although not a bar to the

plaintiff's age discrimination suit, can limit the relief

awarded in that suit).

In its opinion in this case, the Fifth Circuit correctly

remarked that the law has an interest in protecting “the

integrity of the judicial process.” Pet. App. 8a & n.10. The

integrity of the process can be preserved, however, without

resort to preclusion doctrines that undermine the objectives

of the ADA and the Social Security Act. See Johnson, 141

F. d at 1369.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SETH P. WAXMAN

ARTHUR J. FRIED Solicitor General

General Counsel BILL LANN LEE

Social Security Acting Assistant Attorney

Administration General

C. GREGORY STEWART BARBARA D. UNDERWOOD

General Counsel Deputy Solicitor General

PHILIP B. SKLOVER MATTHEW D. ROBERTS

Associate General Counsel Assistant to the Solicitor

LORRAINE C. DAVIS General

Assistant General Counsel

ROBERT J. GREGORY

Equal 1

— Commission

DECEMBER 1998

10 It should be noted, however, that there can be practical difficulties

in recovering overpayments when the person who received them is no

longer receiving benefits.