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

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No. 97-1008

IN THE

Supreme Court of the A

OCTOBER TERM, 1998.

CAROLYN C. CLEVELAND,

Petitioner,

—

POLICY MANAGEMENT SYSTEMS CORP., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AIDS POLICY CENTER FOR CHILDREN, YOUTH

AND FAMILIES; AMERICAN ASSOCIATION OF RETIRED

PERSONS; AMERICAN ASSOCIATION ON MENTAL

RETARDATION; AMERICAN MEDICAL STUDENT

ASSOCIATION; AMERICAN NETWORK OF COMMUNITY

OPTIONS AND RESOURCES; AMERICAN PUBLIC HEALTH

ASSOCIATION; THE ARC OF THE UNITED STATES;

ASSOCIATION OF NURSES IN AIDS CARE, ET AL.;

AS AMICI CURIAE IN SUPPORT OF PETITIONER

(Additional Amici Curiae listed inside cover)

Catherine A. Hanssens*

Beatrice Dohrn

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

120 Wall Street, Suite 1500

New York, New York 10005-3904

(212) 809-8585

Attorneys for Amici Curiae

*Counsel of Record

ADDITIONAL AMICI

ASSOCIATION FOR PERSONS IN SUPPORTED

EMPLOYMENT; BRAIN INJURY ASSOCIATION, INC.;

CENTER FOR INDEPENDENCE OF THE DISABLED IN NEW

YORK; CENTER FOR WOMEN POLICY STUDIES; CENTER

ON DISABILITY AND HEALTH; COALITION FOR THE

HOMELESS; COALITION ON HUMAN NEEDS;

COMMISSION ON REHABILITATION COUNSELOR

CERTIFICATION; COMMITTEE FOR CHILDREN;

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND,

INC.; DISABLED IN ACTION OF METROPOLITAN NEW

YORK, INC.; EMPLOYMENT LAW CENTER; EPILEPSY

FOUNDATION; FRIENDS COMMITTEE ON NATIONAL

LEGISLATION; GAY AND LESBIAN MEDICAL

ASSOCIATION; HIV LAW PROJECT; HOUSING WORKS;

INTERNATIONAL ASSOCIATION OF PSYCHOSOCIAL

REHABILITATION; JUSTICE FOR ALL; LAMBDA LEGAL

DEFENSE AND EDUCATION FUND, INC.; LEGAL ACTION

CENTER; LLEGO (THE NATIONAL LATINA/O LESBIAN,

GAY, BISEXUAL & TRANSGENDER ORGANIZATION);

MENTAL DISABILITY LAW CLINIC OF TOURO COLLEGE;

NATIONAL AIDS FUND; NATIONAL ASSOCIATION FOR

PEOPLE WITH AIDS; NATIONAL ASSOCIATION OF

PROTECTION AND ADVOCACY SYSTEMS; NATIONAL

ASSOCIATION OF ORTHOPAEDIC NURSES; NATIONAL

COUNCIL FOR COMMUNITY BEHAVIORAL HEALTHCARE;

NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL

HEALTH LAW PROGRAM; NATIONAL MINORITY AIDS

COUNCIL; NATIONAL NATIVE AMERICAN AIDS

PREVENTION CENTER; NATIONAL PARTNERSHIP FOR

WOMEN AND FAMILIES; NATIONAL SENIOR CITIZENS

LAW CENTER; NETWORK; NEW YORK LAWYERS FOR

THE PUBLIC INTEREST, INC.; NISH; PARENTS, FAMILIES

AND FRIENDS OF LESBIANS AND GAYS; REHABILITATION

ENGINEERING AND ASSISTIVE TECHNOLOGY SOCIETY

OF NORTH AMERICA; SAN FRANCISCO AIDS

FOUNDATION; TITLE II COMMUNITY AIDS NATIONAL

NETWORK; UNION OF AMERICAN HEBREW

CONGREGATIONS; YWCA OF THE U.S.A.

TABLE OF CONTENTS

IT UNDERMINES THE GOALS

OF BOTH THE ADA AND THE

SSA TO CREATE A PRESUMPTION

OF ADA CLAIM ESTOPPEL ON THE

BASIS OF A PLAINTIFF’S

APPLICATION FOR SOCIAL

SECURITY DISABILITY BENEFITS. ... 5

The ADA is a Civil Rights

Law Designed to Eliminate

Discriminatory Barriers to the

Employment of People with

Ee EPO

Social Security Disability

Benefits Are Part of a

Broad Social Welfare Program

Whose Eligibility Standards

and Determinations Differ

es ad eee ds

Il. IMPOSING PRESUMPTIVE

INELIGIBILITY FOR ADA

PROTECTIONS ON THOSE

WHO APPLY FOR DISABILITY

BENEFITS CREATES BARRIERS

TO FAIR ENFORCEMENT OF

THE ADA THROUGH A

DISTORTION OF THE PRINCIPLE

OF ESTOPPEL AND THE STANDARD

FOR SUMMARY JUDGMENT......... 25

CRAVLMMMIDS Cou isc dcascuctavbecnteseheuenbene 30

TABLE OF AUTHORITIES

CASES

Aka v. Washington Hospital Center, 116 F.3d 876

GE BOD sini cesibiltilticcibintcianinancee 27

Aldrich v. Boeing Co., 146 F.3d 1265

ON en See 11, 12, 29

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...... 26

Anzalone v. Allstate Insurance Co., 1995 U.S. Dist.

LEXIS 1272 (E.D. La. 1995), aff'd, 74 F.3d

IIs IEEE cnindithitsbeiciiiiansintigneitiiavamacnianties 10

Die v. Inco Alloys International, 123 F.3d 916

Ge ee 9

Bowen v. Yuckert, 482 U.S. 137 (1987) .......c-cccceecereeeeeeees 15

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) ...........-+++. 13, 14

Carolyn C. Cleveland v. Policy Management Systems Corp.,

et al. 120 F.3d 513 (5® Cir. 1997 ) .........0000+. passim

Cassidy v. Detroit Edison Co., 138 F.3d 629

Ges FI iadiicicticidincicisincittitcitsitlgetetniescinctntnsteeen 7

Consolidated Rail Corp. V. Darrone,

IED cpletnctbbtcdeninditanredecopiqnecanteenesssntens 22

D'Aprile v. Fleet Services Corp., 92 F.3d |

SE NEED; Minkiasdicindetscnhidenscinnnitiseconsenmysngntaness 10, 21

Gilhuly v. Consolidated Rail Corp., 1997 U.S. Dist.

LEXIS 13454 (E.D. Mich. 1997) ...........ccccccceseeeenes 10

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

(E.D. Ky 1996), rev'd 135 F.3d 376

SEE Se, TU siccctiiniitibsicientsstnshlalidhincBatinnstiinitnmineatte 9

Hall v. United States Postal Service, 857 F.2d 1073

Se ae, CI cites deeetnneitticccntietiiinteresttthdetittiinintncmennen 16

Harrison v. Delaware, No. 95-406-SLR, 1996 U.S. Dist.

LEXIS 20541 (D. Del. 1996) ..........cccecsscssceccerecssees 1]

Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998) .......... 10

Kacher v. Houston Community College System,

974 F. Supp. 615 (S.D. Tex. 1997) o...eccccceceecceeeee 1]

McCreary v. Libbey-Owens Ford Co., 132 F.3d 1159

CR GR. SEIGP. dcintacclicneriisinaiticiesniliidlbisbidsinininilaiisi 10

FUE GUT ED. Cichrintinichandnctnpinibciiaitiniilinddindasdvibiataliclastiitsmene 12

McKennon v. Nashville Banner Publishing Co.,

Fe es UE OED _ cteaciadnatinataditndilisinstaesneisaneninans 28

McNemar v. The Disney Store, 91 F.3d 610

(3rd Cir. 1996), cert. denied 117 S.Ct. 958

CE) 0 0««_i(‘ét MN lini adele 12

Mohamed v. Marriott International, Inc., 944 F. Supp. 277

A, I LE on ern oe 11

Norris v. Allied-Sysco Food Services Inc., 948 F. Supp.

oy Se RR re eee oe eee 11

Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992) ....... 10, 25

Parish v. Consolidated Engineering Lab, No. C96-4213

MMC, 1997 U.S. Dist. LEXIS 15879

ee 11

Pressman v. Brigham Medical Group, Inc.,

919 F. Supp. 516 (D. Mass. 1996) .........ccccceeseeeees 11

Rascon v. U S West Communications, Inc., 143 F.3d 1324

(4 EN ees 11,12

Richardson v. Belcher, 404 U.S. 78 (1971) ...cccccccecceeeeeeees 15

Scarano v. Central R.R., 203 F.2d 510 (3d Cir. 1953) ..... 26

Schnidrig v. Columbia Machine, 80 F.3d 1406

IED nthicninbiseninnnmatntinntinapennamnneite 27, 28

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....ccccccccceees 14

Sumner v. Michelin North America, 966 F. Supp. 1567

OR ae 10

Swanks v. Washington Metropolitan Area Transit Authority,

116 F.3d 582 (D.C. Cir. 1997) ....cccccceceeeenneeees 10, 13

Talavera v. School Board, 129 F.3d 1214

ll 3 (eae eee 10, 29

Taylor v. Food World, Inc., 133 F.3d 1419

a I iia ted inainerniiinceteemennenaenniietiint 10

United States v. 49.01 Acres of Land, 802 F.2d 387

Gta Cle: 6M sind cde Ried 12

Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997) ..... 10

Whitbeck v. Vital Signs, 116 F.3d 588 (D.C. Cir. 1997) .... 10

STATUTES, REGULATIONS AND LEGISLATIVE

MATERIALS.

SD CII i ichiaitila oi sectianctilinsiani 15

WORT: CUON SAG cicisinisiiticnsiea eee ee 20

DOC RR SURAT iad indian nitdianl 15

OCP RM, PURI iii ibid 15

CER. CRGTID icici is 15, 23

CBM. CURIE soiree he eke 15

OC, IAI occsisecttintseiiieiiteinsnlaissit bicetaa 15

SOC DADA RGIG ccecnicsiieicieinbbiitllel dM es 15

WCER OMIM eee tte 15

BCH T: CUE GODG oiaicciisnnsidinbeiieeasmndaiatimiies 15

20 CLF.R. §404.1525(d) ..cccssssssssscsssssescsseesseessen Acc i, 23

WCPR UNIO bill edi a ee 16

20 C-F.R. Part 404, Subpart P, App. 1 ..........eeeeee passim

et ene esas ae won 22

ne | OnE GRaEE nes ore eee eee 7

net | S| NE OnE Werte. owe sme eer 7

RE OO ese wmae eon 17

29 CFR. §1630.2(0) INI) saasesssossossssnsccscccccccccccncsccessssonee 16

pe att: ee Swe ome: oo mere 8 14

NI I inc iecsincncib bali idaaceslanabibegtin 3

i OO isisnessbiniahnsbbliiohians 14

SB URS OUI cineca incest 15

ee RE Ne STL Fede amet eae 18

Pe Ene REN Seley Hee ee 15

I oi i5 niclinnimemnsinnctonte 15

A I itil nsticiineboetanintin 6

Go UE ARNONE ID aise ect eeeiinsscscinccensinssnbnsrenenre 20

0 CG I alii isissicscisncnstniicmabtin 16, 22

I Ns asisignbinrmeiivinnisineiniionn 7

I ia sein sithtsinehisesitiseeasibniieenioniin 16

vii

2 UBL. § 12301@). cic nda ae oe 6

SB UBL. BERGE. . cseccesinesscnnsistsccensnsspieiate tad dak 14

TS UA, SERIE TD scccicerssicncssnisoinedesidaainiaenanlien db oF 14

42 UBL. GIZABG BB OD © encccsccniscrredseinaee JES 14

SS UE, GERRI ciccisiinisictinitbieitcsdaitiaiaaiem iT 14

135 CONG. REC. S10713 (Daily ed. Sept. 7, 1989) ......... 20

PU TE. COR, BD. DG cicsecnincintassssseparsenpiinsaiipbaitphiiaies stems) 26

Ps Bi GE BDI vciccacestnsscctatiicinaacinsialatiadincetabe a a 26

POE, Th, TE, GD ensccccssencsesinsitnnicemnndbichlecitilindaduiicdies 12

Eh: SUN BO GED: -mncscsiinaceistsncisbietansbetiacustliaeimcbbiaites 6

| a ae 29 tke ES ee 7

De BARI, BE BID sasiscsiitsasnssivisndessiacnnetitidennibemnnaiebiieeiaa nies tes 6

MISCELLANEOUS

A Proposal to Restructure the Social Security

Administration's Disability Determination Process:

Hearing Before the Subcomm. on Social Security of

the House Committee on Ways and Means, 103rd

Cee, DUE Bie, BD CGO eoeiecesantoessnennsiescttertenccients 8

Vili

Centers for Disease Control and Prevention, Prevalence of

Work Disability -- United States, 1990,270 JAMA

SORE ae, Fa TO la aca hiccst ciinidinciciscenee 20-

Committee on Ways and Means, 103 Cong., Overview

of Entitlement Programs: 1993 Green Book 57

(Comm. Print 1993) ....c.cssseseee0n wit lid cae 23

Department of Health and Human Services, Social Security

Administration RED BOOK ON WORK

INCENTIVES, SSA Pub. No. 64-030 (1994) ........ 18

Matthew Diller, Dissonant Disability Policies: The Tensions

Between the Americans with Disabilities Act and

Federal Disability Benefit Programs, 76 Tex..

ns RY DE GID ailindbnathtllartickenscsctainidtinnssneeiinai 6, 23

_ EEOC, Enforcemer.: 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), ADA

Compliance Manual Section 915.002

a SO eae ei Alastls ceeceattccrinns 13, 23, 24

Hearing on Growth in Social Security Programs Before the

Subcomm. On Social Security of the House Comm. on

Ways and Means, 104" Cong. 1* Sess. (1995) .......... 21

John C. Hennessey & L. Scott Muller, Work Efforts of

Disabled- Worker Beneficiaries, 57 Social Security

I IO iirc ia intnansbiiniiegnsnbanedioonninininabette 21

L. Scott Muller, Disability Beneficiaries Who Work and

Their Experience Under Program Work Incentives,

55 Soc. Sec. Bull. 2 (Summer 1992) .........cseessee-0 . 19

Frank S. Ravitch, Balancing Fundamental Disability

Policies: The Relationship Between the Americans

with Disabilities Act and Social Security Disability,

1 Geo. J. on Fighting Pov. 240, 247-48 (1994) ....... 20

Donald E. Rigby, Note, SS] Work Incentive Participants,

September 1991, 54 Soc. Sec. Bull. 22

GENE whcncectinincoesiidthctendienlnctirtia teitd sonsebiie Satie ats 19

Charles G. Scott, Disabled SSI Recipients Who Work,

55 Soc. Sec. Bull 26 (Spring 1992) .000........ccccc0000- 19

Social Security Administration, Program Operations Manual

System DI 10005.001 (K) .......ccccccccsccecesceeeeecesees 17, 18

Study Finds Employers Win Most ADA Title I Judicial and

Administrati, > Complaints, Mental and Physical

Disability Law Reporter (May-June 1998) ............... 29

Edward H. Yelin, The Recent History and Immediate Future

of Employment Among Persons with Disabilities,

69 Milbank Q. 129, 142 (1991)

INTEREST OF THE AMICI CURIAE’

This amici curiae brief is submitted on behalf of

AIDS Policy Center for Children, Youth and Families;

American Association of Retired Persons; American

Association on Mental Retardation; American Medical

Student Association; American Network of Community

Options and Resources; American Public Health Association;

Arc of the United States; Association of Nurses in AIDS

Care; Association for Persons in Supported Employment;

Brain Injury Association, Inc.; Center for Independence of the

Disabled in New York; Center for Women Policy Studies;

Center on Disability and Health; Coalition for the Homeless;

Coalition on Human Needs; Commission on Rehabilitation

Counselor Certification; Committee for Children; Disability

Rights Education and Defense Fund, Inc.; Disabled in Action

of Metropolitan New York, Inc.; Employment Law Center;

Epilepsy Foundation; Friends Committee on National

Legislation; Gay and Lesbian Medicai Association; HIV Law

Project; Housing Works; International Association of

Psychosocial Rehabilitation; Justice for All; Lambda Legal

Defense and Education Fund, Inc.; Legal Action Center;

LLEGO (The National Latina/o Lesbian, Gay, Bisexual &

Transgender Organization); Mental Disability Law Clinic of

Touro College; National AIDS Fund; National Association

for People with AIDS; National Association of Protection and

Advocacy Systems; National Association of Orthopaedic

Nurses; National Council for Community Behavioral

Healthcare; National Council of Jewish Women; National

Health Law Program; National Minority Aids Council;

' This brief has been authored in its entirety by undersigned counsel

for the amici. No person or entity, other than the named amici and their

counsel, made any monetary contribution to the preparation or submission

of this brief.

National Native American AIDS Prevention Center; National

Partnership for Women and Families; National Senior

Citizens Law Center; NETWORK; New York Lawyers for

the Public Interest, Inc.; NISH; Parents, Families and Friends

of Lesbians and Gays; Rehabilitation Engineering and

Assistive Technology Society of North America; San

Francisco AIDS Foundation; Title II Community AIDS

National Network; Union of American Hebrew

Congregations; and YWCA of the U.S.A. (“Disability,

Medical, Public Health and Civil Rights Organizations”). The

statements of interest of amici are included in the appendix to

this brief.

Amici believe that this Court’s ruling on the weight

assigned to statements made by ADA Title I plaintiffs in

applications for Social Security disability benefits will have a

profound effect on the viability of the ADA as a tool to end

pervasive job discrimination against persons with disabilities.

The Fifth Circuit’s application of a nearly insurmountable

“rebuttable presumption” standard to such statements

effectively bars millions of individuals with disabilities from

ever showing, in the event of employment discrimination, that

they are “otherwise qualified to perform the essential

functions of the job.”

By written consent of the parties,’ amici curiae

Disability, Medical, Public Health and Civil Rights

Organizations submit this brief in support of Petitioner

Carolyn C. Cleveland.

SUMMARY OF ARGUMENT

The Americans with Disabilities Act (ADA)

represents a fundamental evolution in policy affecting persons

> Letters of consent from all parties have been filed separately with the

Clerk of the Court.

with disabilities. Explicitly rejecting the entrenched

perception that persons with significant disabilities can never

be fully independent participants in the national economy, the

ADA protects employment opportunities for individuals with

disabilities who are able to perform the jobs they hold or seek,

and mandates that employers offer reasonable

accommodations to assist in removing unnecessary

impediments to employment.

The disability benefits programs of the Social Security

Act (SSA), 42 U.S.C. 423, serve a social welfare purpose

which complements the employment goals of Title I of the

ADA. Offering benefits to those unable to engage in

"substantial gainful activity" due to a serious physical or

mental impairment, the Social Security Administration

extends benefits to such individuals even if reasonable

accommodations in a workplace would make employment

possible.

The definitions and standards which determine

eligibility for protection under Title I of the ADA, and for

Social Security disability benefits, are quite different yet

completely compatible. The ADA exists to remove barriers to

the employment of people with disabilities while the SSA

creates an economic support system for them in recognition of

the continued existence of these barriers. While both statutes

serve distinct purposes, their targeted beneficiaries overlap.

The Court of Appeals decision in this case undermines

the policy and intent of the Americans with Disabilities Act

by severely undercutting the ability of those with disabilities

to enforce the ADA’s promise of job equity. The ruling is at

odds with those of other circuits, and with the position of the

EEOC and the SSA, which are charged with administering the

statutory provisions at issue. Under the Fifth Circuit’s

analysis, individuals with disabilities who are terminated

under circumstances which include a refusal to reasonably

accommodate them forfeit the possible return to employment

or other remedies for discrimination that an ADA claim

would provide, merely by filing for subsistence benefits

through SSA.

The Court of Appeals’ decision skews the focus of the

ADA's principal inquiry away from an employer's

discriminatory conduct and onto a plaintiffs statements in an

unrelated process with no bearing on the employer’s conduct.

Under the Court’s “rebuttable presumption” standard, it is

only “theoretically conceivable that under some limited and

highly unusual set of circumstances the two claims would not

necessarily be mutually exclusive,” 120 F.3d 513, 517. This

standard is only superficially distinguishable from an absolute

bar to an ADA claim, a distinction of no consequence to

plaintiffs like Carolyn Cleveland, whose identification of

specific accommodations that would allow her to perform her

job was excluded from the Court’s analysis.

Fair enforcement of the ADA remains the most viable

tool for allowing individuals with disabilities who are capable

of maintaining employment to avoid reliance on publicly-

funded benefits programs. The “rebuttable presumption”

standard employed here reduces the ADA’s promised

employment protections to a mere theoretical option for

millions of individuals whose disabilities may periodically

_ necessitate obtaining such benefits to survive. It also

represents a radical misapplication of the principle of judicial

estoppel and the standard for summary judgment.

There are important social implications of failing to

recognize and disaggregate the distinct policies each statute

advances. Rather than promoting attempts by individuals

with disabilities to remain at or return to work, a goal shared

by both systems, the Court of Appeals’ holding re-erects

barriers for employable individuals with disabilities by

barring their enforcement of ADA rights when their attempts

to move out of the benefits system into gainful employment

result in discrimination.

Eligibility for the benefits of both the SSA and the

ADA are not inherently inconsistent. Evidence of statements

in support of claims under the SSA therefore warrant no

special weight, and should be weighed equally with other

relevant evidence, in determining the viability of an ADA

claim.

ARGUMENT

I. IT UNDERMINES THE GOALS OF BOTH THE

ADA AND THE SSA TO CREATE A

PRESUMPTION OF ADA CLAIM ESTOPPEL

ON THE BASIS OF A PLAINTIFF’S

APPLICATION FOR SOCIAL SECURITY

DISABILITY BENEFITS.

The purposes of the Social Security Act (SSA) and the

Americans With Disabilities Act (ADA), while clearly

distinct from each other, are complementary rather than

conflicting. The SSA’s method for qualifying applicants for

benefits, and the ADA’s determination of disability, diverge

significantly in their approach, legal standards and statutory

intent. At the same time, both statutes promote integration of

people with disabilities into the economy whenever possible,

a fundamental policy which the Court of Appeals’ ruling

implicitly overrides.

A. The ADA is a Civil Rights Law Designed to

Eliminate Discriminatory Barriers to the

Employment of People with Disabilities.

The Americans with Disabilities Act of 1990 is a

landmark civil rights enactment for people with disabilities. It

promotes a vision of the significant contributions that people

with disabilities can make when given a fair chance to

participate fully in society.

The ADA provides "a clear and comprehensive

national mandate for the elimination of discrimination against

with disabilities into the economic and social mainstream of

American life." /d., quoting S. REP. No. 116, at 20; H.R. REP.

No. 485(II), at 50 (emphasis in original).? The Act expanded

coverage of the nondiscrimination principle to private

employers and included an expansive list of potential

reasonable accommodations to which people with disabilities

might be entitled. See 42 U.S.C. § 12111(9) (listing possible

reasonable accommodations under the ADA).

In its requirement that there be an “individualized

assessment” of each claim that a particular individual with a

disability is “otherwise qualified to perform the essential

functions of the job,” the ADA does not include the concepts

of “total” disability and explicitly rejects generalized

assumptions about the ability of a particular person with a

disability to work. See Matthew Diller, Dissonant Disability

Policies: The Tensions Between the Americans with

Disabilities Act and Federal Disability Benefit Programs, 76

Tex.L.Rev. 1003, 1028 (1998). While the regulations

recognize that there are some impairments which, by their

’ The ADA’s preliminary statement of findings concluded, in part that:

{I)ndividuals with disabilities are a discrete and insular minority

to a history of purposeful unequal! treatment, and relegated to a

position of political powerlessness in our society, based on

characteristics that are beyond the control of such individuals

and resulting from stereotypic assumptions not truly indicative of

the individual ability of such individuals to participate in, and

contribute to, society.

42.U.S.C. §12101(aX(7).

nature, may qualify as per se disabilities under the ADA‘,

there are no presumptions about the effect of any impairment

on an individual’s ability to work.*

Congress’ inclusion of reasonable accommodations in

the ADA's definition of an “otherwise qualified individual" is

a cornerstone of the ADA's attempt to assist individuals

their ability to work. As the ADA's legislative history

emphasizes, “the provision of various types of reasonable

accommodations for individuals with various types of

disabilities is essential to accomplishing the critical goal of

this legislation - to allow individuals with disabilities to be

part of the economic mainstream of our society." H.R. REP.

No. 485(ID, at 34.

By contrast, Social Security Administration policy

accommodations in determining whether someone is unable

~ * See 29 C.F.R. Appendix to Part 1630, §1630.2(j) (EEOC Interpretive

Guidance to Title I)(hereinafter “Interpretive Guidance”) (“Other

impairments...such as HIV infection, are inherently substantially

limiting.”)

* Indeed, the ADA contemplates that an individual can establish

coverage under the Act with an impairment that substantially limits the

major life activity of working. Under the ADA, a “disability” is “a

physical or mental impairment that substantially limits one or more of the

major life activities of such individual.” 42 U.S.C. § 12102(2)(A). The

term "substantially limits” means “an inability to perform or a significant

restriction on the ability to perform as compared to the average person in

the general population,” "major life activities” include “functions such as

caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(j)(1) and

16.30.2(i); Cassidy v. Detroit Edison Co., 138 F.3d 629, 633 (6th Cir.

1998).

to perform a range of jobs in the national economy.° Indeed,

in 1994 the Social Security Administration directly addressed

the question of the relevancy of the ADA to its determinations

of disability and concluded that "the ADA defines ‘disability’

in relation to the ability to perform what it describes as ‘major

life activities.’ Consequently, the term is not synonymous

with ‘disability’ as defined in the Social Security Act."’ The

SSA proposed and then rejected incorporation of ADA

criteria into its determination of eligibility for benefits.’

* Social Security determinations effectively operate on the assumption

that reasonable accommodations are not available as a matter of course.

A Social Security Administration Memorandum 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 at the fourth step

[addressing ability to perform past work] of the sequential

evaluation process. . . . [H]ypothetical inquiries about whether an

employer would or could make accommodations that would

allow return to a prior job would not be appropriate.

“Americans with Disabilities Act of 1990 -- INFORMATION,”

Administration | (Jun. 2, 1993).

” “Americans with Disabilities Act of 1990 -- INFORMATION,”

Memorandum from the Associate Commissioner, Social Security

Administration | (Jun. 2, 1993).

* In hearings on the SSA “Reengineering” proposal, which would have

required that beneficiaries be unable to work “regardless of any

reasonable accommodation that an employer might make," commentators

pointed out that the term:

indicate[{s] a basic misunderstanding of the relationship between

the ADA and the disability standards under the Social Security

Act... . [T]o establish a standard which assumes reasonable

accommodations for the purpose of establishing eligibility for

Social Security disability programs may potentially establish

barriers for the individual by, in effect, shifting the employer's

Herein lies a fundamental difference between the

ADA and the Social Security Act: an individual's general

inability to work due to a disability (the point at which the

SSA inquiry ends) triggers a subsequent inquiry under the

ADA as to whether that inability can be remedied by an

employer's reasonable accommodation. It is the very people

who would be unable to work without reasonable

accommodations -- thereby qualifying as disabled under the

SSA's definition -- whom the ADA seeks to benefit by

requiring their employers to provide accommodations.

The majority of jurists addressing the issue have

recognized the differences between the two statutes. Most

courts have concluded that while a plaintiff's experience with

the SSA disability claims process may be relevant to the

factual determination of her qualifications to perform the

essential functions of the job at issue, it deserves no greater

The Sixth, Seventh, Ninth, and D.C. Circuits all have

rejected grants of summary judgment for employers which

were based on the district courts’ treatment of plaintiffs’

applications for disability benefits as dispositive of a claim as

a “qualified individual with a disability" under the ADA. See

Blanton v. Inco Alloys Int'l, 123 F.3d 916 (6" Cir. 1997)

(rejection of judicial estoppel and reversal of summary

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

1167 (E.D. Ky. 1996), rev'd on other grounds, 135 F.3d 376

burden of compliance with the ADA onto the claimant or

potential employee.

A Proposal to Restructure the Social Security Administration's Disability

Determination Process: Hearing Before the Subcomm. on Social Security

of the House Committee on Ways and Means, \03rd Cong., 2nd Sess. 83

(1994) (statement of Martha E. Ford, Cochairperson, Consortium for

Persons with Disabilities) (emphasis added). See also id at 89-91

(statement of Professor Matthew Diller, Fordham University School of

Law).

(6th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461 (7"

Cir. 1997) (citing “fundamental differences between the

SSA’s definition of disability and the ADA’s definition of

‘qualified individual with a disability,’”); McCreary v.

Libbey-Owens Ford Co., 132 F.3d 1159 (7th Cir. 1997);

Overton v. Reilly, 977 F.2d 1190 (7th Cir. 1992) (refusing to

dispose of fired employee's Rehabilitation Act claim on

summary judgment; plaintiffs qualification for disability

benefits did not mean he was not qualified to perform his

job); Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998);

Taylor v. Food World, Inc., 133 F.34 1419 (11th Cir. 1998);

Talavera v. School Board, 129 F.3d 1214, 1220 (11th Cir.

1998)(“We agree with the majurity of our sister circuits that a

certification of total disability on an SSD benefits application

is not inherently inconsistent with being a ‘qualified

individual with a disability’ under the ADA.”); Whitbeck v.

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

for benefits did not bar ADA claim where employer indicated

unwillingness to accommodate); Swanks v. WMATA, 116

F.3d 582 (D.C. Cir. 1997). See also D'Aprile v. Fleet

Services Corp., 92 F.3d 1 (1* Cir. 1996) (“August stands for a

much narrower proposition” that a plaintiff's ability to work,

with reasonable accommodation if necessary, is an element of

a disability discrimination claim.”); Anzalone v. Allstate Ins.

Co., 1995 U.S. Dist. LEXIS 1272 (E.D. La. 1995), aff'd, 74

F.3d 1236, (S® Cir. 1995) (no summary judgment where

plaintiff could perform job with accommodation).’

* Numerous district courts have considered, and rejected, the argument

that disability benefits applications provide overwhelming evidence of an

ADA plaintiff's inability to work. See, e.g., Sumner v. Michelin North

America, 966 F.Supp. 1567 (M.D. Ala. June 13, 1997) (“the simple fact

that Sumner claimed he was disabled under the Social Security Act and

permanently and totally disabled under Alabama’s Worker's

Compensation Act is not necessarily inconsistent with his claim for relief

under the ADA") (granting summary judgment on other grounds); Gilhuly

The 10" Circuit repeatedly has rejected the doctrine of

judicial estoppel altogether. See, e.g., Aldrich v. Boeing Co.,

146 F.3d 1265 (10" Cir. 1998); Rascon v. U S West

Communications, Inc., 143 F.3d 1324 (10th Cir. 1998).

Referencing its long-starting refusal to adopt the doctrine,

the court in Rascon “join[ed] the majority of circuits [in

holding] that statements made in connection with an

application for social security disability benefits cannot be an

automatic bar to a disability discrimination claim under the

ADA.” 143 F.3d at 1331.

The 10" Circuit Rascon and Aldrich decisions provide

a reasonable and well-supported model for determining the

weight courts should give to an individual’s statements in an

v. Consolidated Rail Corp., 1997 U.S. Dist. LEXIS 13454, at *23 (E.D.

Mich. 1997) (no judicial estoppel where employer failed to engage in

interactive, reasonable accommodation process); Kacher v. Houston

Community College System, 974 F. Supp. 615 (S.D. Tex. 1997) (receipt of

insurance benefits during period of incapacity not inconsistent with

subsequent ability to work); Norris v. Allied-Sysco Food Services, Inc..,

948 F. Supp. 1418 (N.D. Cal. 1996) (application for long-term disability

insurance benefits not inconsistent with plaintiff's claim that she

subsequently recovered and was qualified to return to work); Pressman v.

Brigham Medical Group, Inc., 919 F. Supp. 516 (D. Mass. 1996) (genuine

issue of fact as to whether “total disability” for the purposes of disability

insurance meant plaintiff was unable to perform the essential functions of

medical practice); Harrison v. Delaware, No. 95-406-SLR, 1996 U.S.

Dist LEXIS 20541 (D. Del. 1996) (plaintiff's claim not barred by

application for disability pension filed after employer’s failure to respond

to accommodation request); Mohamed v. Marriott Int'l, Inc., 944 F. Supp.

277, 280-84 (S.D.N.Y. 1996) (“uncritical application of judicial estoppel”

fails to recognize significant differences in ADA’s and Social Security

Act's applicable legal standards, and the differences between ADA forum

and procedures, and SSDI administrative determinations and policy

goals); Parish v. Consolidated Engineering Lab, No. C96-4213 MMC,

1997 U.S. Dist. LEXIS 15879 (N.D. Cal. Oct. 6, 1997) (receipt of state

disability benefits not inconsistent with claim of improved health while on

leave) (summary judgment granted on other grounds).

application for disability benefits when that individual asserts

in an ADA employment discrimination claim that she is a

“qualified individual with a disability.” In rejecting the

applicability of both the per se judicial estoppel rule of

McNemar v. The Disney Store, 91 F.3d 610 (3" Cir. 1996),

cert. denied 117 S.Ct. 958 (1997), and the Fifth Circuit’s use

of a rebuttable presumption of judicial estoppel in this case,

the 10" Circuit did not bar the introduction of such statements

at trial, nor did it otherwise alter the burden on plaintiff in

establishing her prima facie case as set forth in this Court’s

decision in McDonnell Douglass Corp. V. Green, 411 U.S.

792, 802 (1973). In Aldrich, the court explained why it found

unpersuasive the defendants argument that Kenneth Aldrich

should be estopped from pursuing his ADA claim due to his

testimony at a workers’ compensation hearing that he could

not perform his job with or without reasonable

accommodation:

Were we to adopt [defendant’s] approach...we would

“discourage the determination of cases on the basis of

the true facts as they might be established ultimately.”

United States v. 49.0] Acres of Land, 802 F.2d 387.

390 (10" Cir. 1986)(quoting Parkinson v. California

Co., 233 F.2d 432, 438 (10th Cir. 1956)). The Federal

Kules of Evidence well provide the means with which

to confront plaintiff with such inconsistency. See

Fed.R.Evid. 801(d)(2)(permitting introduction in

evidence of prior admission by party-opponent). Thus

Aldrich’s testimony “may constitute evide~ ce relevant

to a determination of whether the plaintif sa

‘qualified individual with a disability,"” Rascon at

1332, but it is not dispositive.

146 F.3d at 1268-69.

The persistent confusion among some courts as to the

appropriate consideration of disability benefits claims

prompted the EEOC to issue Enforcement Guidance on

benefits applications and the ADA.'° In a comprehensive

analysis of the differing purposes of the ADA and the SSA

and other public and private disability benefits programs, the

EEOC concluded that representations made in an application

for disability benefits are never dispositive of whether a

claimant is a “qualified individual with a disability” under the

ADA. EEOC Enforcement Guidance at 26. Based on the

distinct yet complementary purposes, standards and defining

terms of the ADA and the SSA, the EEOC reasoned that

application of judicial estoppel or summary judgment to

dispose of an ADA claim based on a plaintiff's benefits

claims experience is inappropriate. See EEOC Enforcement

Guidance at 27-30.

Similarly, the Social Security Administration, which

undoubtedly has a significant interest in preventing fraud in

SSA disability benefits claims, made it clear in Swanks v.

Washington Metropolitan Area Transit Authority, 116 F.3d

582 (D.C. Cir. 1997), that it agreed with the EEOC that the

receipt of Social Security disability benefits does not bar

ADA claims. Remarkably, the Court of Appeals’ Cleveland

decision below, issued months after publication of the EEOC

Enforcement Guidance and the Swanks decision, does not

even acknowledge the existence of either the Guidance or the

Social Security Administration’s position taken in Swanks.

This Court’s recent decision in Bragdon v. Abbott, 118

S.Ct. 2196 (1998) provides clear guidance on the weight to be

afforded relevant federal authorities in resolving conflicts as

'© 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), ADA Compliance Manual Section

915.002 (Feb.12, 1997)(hereinafter “EEOC Enforcement Guidance”).

to the proper interpretation of the ADA. In Bragdon, this

Court observed that “the well-reasoned views of the agencies

implementing a statute ‘constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance.’” /d. at 2206, citing Skidmore v. Swift &

Co., 323 U.S. 134, 139-40 (1944). The EEOC is the agency

directed by Congress to issue regulations implementing Title |

of the ADA, see 42 U.S.C. §12116, to render technical

assistance explaining the responsibilities of covered

individuals and institutions, see 42 U.S.C. §12206(a) and (c),

and to enforce Title I in the courts, see 42 U.S.C. §12117(a).

Accordingly, its views are entitled to deference. Bragdon,

118 S.Ct. at 2208.

The ADA’s requirement of an “individualized

assessment” of each plaintiff's ability to do the job in

question, and its overarching purpose of providing a real

remedy to disability-based discrimination in employment,

clearly militate against adoption of judicial estoppel based on

“rebuttable presumptions” to foreclose the weighing of

disputed facts which are central to ADA claims.

B. Social Security Disability Benefits Are Part

of a Broad Social Welfare Program Whose

Eligibility Standards and Determinations

Differ From the ADA's.

Congress has enacted two programs designed to

provide income to those whose impairments interfere with

their ability to work: the Social Security Disability Insurance

program ("SSDI")'' and the Supplemental Security Income

'' Codified at 42 U.S.C. §§413-415. SSDI, like earlier Social Security

benefit programs, bases eligibility in part on an individual's work record.

42 U.S.C. §423(c).

program ("SSI").'? The aim of both programs is to provide a

federally financed floor of income to those whose

impairments prevent them from maintaining economic

independence and self-support."*

There are important differences between the SSA and

the ADA in the criteria used to determine coverage under

each statute. The Social Security Administration considers

whether an individual's overall functional capacity renders

him or her unable to perform any jobs that exist "in

substantial numbers in the national economy."'* The SSA

considers the ordinary work requirements of entire classes of

jobs, without allowing for individualized modifications that

"= Codified at 42 U.S.C. §§1381-1383d. SSI is a needs-based program

that considers income and resources, in addition to level of impairment, in

determining eligibility.

'’ “Federal disability payments, even when supplemented by other

forms of disability compensation, provide families of disabled persons

with the basic means of getting by." Richardson v. Belcher, 404 U.S. 78,

91 (1971) (Marshall, J., dissenting); see also 42 U.S.C. §1381 (SSI

program statement of purpose).

‘* Determination of eligibility for Social Security disability benefits is

generally based on a sequential, five-step process of evaluation, i.e., 1)

whether the claimant is currently engaged in substantial gainful

empioyment; 2) whether the claimant has a severe impairment; 3) whether

the impairment is equivalent in severity to one included on the SSA’s

“Listing of Impairments,” set forth in 20 C.F.R. Part 404, Subpart P, App.

1; 4) whether the claimant can perform past relevant work; and 5) whether

the claimant is able to engage in other forms of employment which exist

in significant numbers in the national economy. 42 U.S.C. §423

(d\(2A); 20 C.F.R. 404. 1520 (b), .1520 (c), .1521, .1520 (d), .1525,

1526, .1520 (e), .1520 (f), .1520 (c). If the claimant's impairment is

equivalent to one included in the Listing, SSA awards benefits without

further inquiry, in steps 4 and 5, into the claimant’s ability to work. See

Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987) and discussion at I.D.,

infra.

could accommodate the disability in question."

In contrast, the ADA provides protection from

discrimination in the terms or conditions of employment

based on the individual's substantially limiting condition, a

history of the same, or an employer's perception of an

individual as disabled."* It also differs from the SSA in two

additional, and critical, respects. First, when evaluating

whether an individual suffered prohibited workplace

discrimination, the ADA considers exclusively a particular

job,"’ its essential functions,'* and an individual's

demonstrated qualifications to perform them.'? Second, if the

individual’s disability interferes with the ability to perform a

'S Compare 20 C.F.R. § 404.1566 (defining “work which exists in the

national economy") with 29 C.F.R. § 1630.2(0)(1 ii) (defining reasonable

accommodation to include modifications of jobs as they are customarily

performed).

'© 42 U.S.C. § 12102(2).

'? The ADA defines a "qualified individual with a disability" with

reference to the "employment position such individual holds or desires."

42 U.S.C. § 12111(8).

'® 42 U.S.C. § 12111(8). The employer's judgment as to what are the

“essential functions” of a job are not dispositive, id.; a court's

determination of the issue “should be based upon more than statements in

a job description and should reflect the actual functioning and

circumstances of the particular enterprise involved." Hail v. United States

Postal Service, 857 F.2d 1073 (6th Cir. 1988) (interpreting the term under

the Rehabilitation Act §§ 501 and 503).

' Only in rare circumstances would capacity to do other jobs in the

national economy be a relevant consideration under the ADA. Inquiry as

to a plaintiff's ability to perform other jobs is generally limited to the

geographic area to which he or she lives or works, and arises only when

the plaintiff argues that working itself is the sole "major life activity” in

which he or she is “substantially limited" by a disability. See 29 C.F.R. §

1630.2(j)(3).

job’s essential functions in the manner they routinely are

done, the ADA requires consideration of whether reasonable

accommodations will facilitate performance of these

functions.

Cc. The Presumption That an SSA Benefit

Claimant Cannot Be a “Qualified

Individual” Under the ADA Undermines

Both Systems' Shared Goal of Encouraging

the Employment of People with Disabilities

Whenever Possible.

Even though the definitions, inquiries and

requirements of the two statutes differ markedly, they share

the common policy goal of encouraging people with

disabilities to work whenever possible. Federal disability

assistance, while recognizing that thousands of Americans

require public support when disabilities prevent them from

working, simultaneously incorporates a variety of

rehabilitative and work-incentive programs. In fact, in the

Social Security Administration’s manual of instructions to

staff completing and processing SSI and SSDI application

forms, staff are required during their interview with each

claimant to explain that “work activity will not necessarily

stop or reduce benefits.”” It is manifestly unfounded to

° Social Security Administration, Program Operations Manual! System

(“POMS") DI 10005.001 (K). The relevant section of the POMS states:

Explain to claimants that work activity will not necessarily stop

or reduce benefits. There are program rules which exist to

encourage people to return to work by allowing them to keep all

or part of their benefits for a reasonable time. Give the

individual a copy of the leaflet, “Disability Benefits and

Work" . . . Point out that some of these rules will, in effect, allow

the program to cover some of the costs of returning to work . . .

Id.

suggest, as the Cleveland decision does, that plaintiffs such as

Carolyn Cleveland who rely on the explicit guidance of

federal agency personnel are perpetrating a fraud on the

courts. For example, disability payments may continue where

recipients participate in vocational rehabilitation programs

which the Commissioner determines "will increase the

likelihood that such individual may . . . be permanently

removed from the disability benefit rolls." 42 U.S.C. §

425(b)(2). In publicizing the availability of its various work

incentive options, the Social Security Administration warrants

that "[e]nabling beneficiaries with disabilities to achieve a

better and more independent lifestyle by helping them take

advantage of employment opportunities is one of SSA's

highest priorities."”! Inasmuch as the safety-net system of the

SSA does not attach a permanent presumption of

unemployability to its benefits recipients, it is patently

inappropriate for the federal courts to do so.

The Social Security Act’s numerous work incentive

provisions include 1) the Trial Work Period, which allows

beneficiaries to work for nine months while their benefits

entitlement and payment levels remain unchanged; 2) the

*! Dep’t of Health and Human Services, Social Security

Administration RED BOOK ON WORK INCENTIVES, SSA Pub. No. 64-030

(1994). SSA’s “Red Book” states further:

The SSDI and SSI programs should not be viewed as

exclusive and permanent sources of income to the person with

disabilities. They should, in every case possible, be used as

stepping stones to improving a person’s economic condition.

Work incentives are intended to give beneficiaries the

support they need to move from benefit dependence to self-

sufficiency.

[W]ork incentives . . . are designed to help people with

disabilities enter or reenter the workforce by protecting their

entitlement to cash payments and/or Medicaid or Medicare

protection, until they can support themselves.

Id. at 2, 3.

Extended Period of Eligibility, which provides individuals

who return to work with benefits in any month in which

earnings fall below a statutory level; 3) the Plans for

Achieving Self Support, which exempts income and resources

set aside for an approved work goal, such as education, from

counting toward statutory minima for SSI eligibility; 4) the

Impairment-Related Work Expenses provisions, which allow

deductions against earnings for participants with impairment-

related expenses which are necessary to return to work; and 5)

the continuation of cash payments and Medicaid coverage to

individuals who return to work whose earnings would

otherwise remove them from coverage. Other provisions

eliminate waiting periods for people who go off disability as a

result of a work attempt but later find they need to re-enroll

for benefits; and extend Medicare eligibility for people

successfully returning to work.” Program beneficiaries

utilize these programs widely: one study found that a full

twenty-two percent of SSI recipients worked in some capacity

after they applied for disability payments.” Contrary to the

Court of Appeals’ presumption, participating in the working

world when feasible with maintaining one's determination of

eligibility as "disabled" under the Social Security system. In

fact, it is actively encouraged and rewarded by the Social

Placing rights under the ADA and the SSA in conflict

has profound consequences for the larger public interest in

employing those able to move from subsidy to work. Ifa

worker or job applicant is accommodated in a job that

* See L. Scott Muller, Disability Beneficiaries Who Work and Their

Experience Under Program Work Incentives, 55 SOC. SEC. BULL. 2, 16-

17 (Summer 1992); Donald E. Rigby, Note, SS/ Work Incentive

Participants, September 1991, 54 SOC. SEC. BULL. 22, 22-23 (Dec. 1991).

® Charles G. Scott, Disabled SS] Recipients Who Work, 55 SOC. SEC.

BULL. 26, 34 (Spring 1992).

19-

constitutes "substantial gainful activity," he or she will

become ineligible for benefits under SSA regulations. See 20

C.F.R. § 404.316. Thus, if applied as intended, the ADA can

decrease the number of individuals receiving disability

benefits.** More importantly, maintaining employment is

and episodic periods of debilitation. For those whose

symptoms of their disability ebb and flow, an employer's

provision of reasonable accommodations may be pivotal in

enabling them to continue working after diagnosis.”* In this

case, Carolyn Cleveland’s post-termination application for

disability benefits, used by defendant to “prove” that

Cleveland was not qualified for her job, was necessitated by a

deterioration in her condition allegedly triggered by

defendant’s denial of accommodations and firing of her. See

* Frank S. Ravitch, Balancing Fundamental Disability Policies: The

Security Disability, | GEO. J. ON FIGHTING POV. 240, 247-48 (1994). It

has been estimated that work disability costs the economy approximately

$111.6 billion annually in direct and indirect medical costs and lost wages

alone. Centers for Disease Control and Prevention, Prevalence of Work

Disability — United States, 1990,270 JAMA 1921 (Oct. 27, 1993). The

express purposes of the ADA include elimination of “unnecessary

expenses resulting from dependency and non-productivity. 42 U.S.C.

§12101(aX(9). Senator Harkin predicted that “enactment of the ADA will

save billions of dollars per year that are currently being expended on

social welfare programs,” 135 CONG. REC. $10713 (daily ed. Sept. 7,

1989) (statement of Sen. Harkin), due to increased employment and

reduced dependence on Social Security for financial support.

> Researchers have found that when such employees are able to

control the pace and schedule of their work, one possible reasonable

accommodation, they are less liable to be forced to leave employment due

to the effects of their illness than those who cannot. Edward H. Yelin,

The Recent History and Immediate Future of Employment Among Persons

with Disabilities, 69 MILBANK Q. 129, 142 (1991).

120 F.3d at 514-515. In fact, a credible claim of changed

circumstances, particularly when caused by the employer, is

an independent reason not to preclude proof of changes in the

ability to work in an ADA claim. D'Aprile v. Fleet Services

Corp., 92 F.3d 1, 4 (1* Cir. 1996).

The Fifth Circuit appears to assume, however, that

reasonable accommodations rarely make the difference

between ability to work and inability to work -- that such

circumstances are only “theoretically conceivable” and

“limited and highly unusual.” 120 F.3d at 517. On the

contrary, Social Security Administration research shows that

42% of SSDI recipients who went to work while receiving

benefits had some kind of accommodation.” The approach

endorsed in Cleveland likely will discourage compliance with

the reasonable accommodation and nondiscrimination

mandates of the ADA, as employers recognize that many

people with the financial and medical needs of a disability

have to resort to Social Security in order to avoid the dire

consequences of job loss on health and solvency.”’

The Court of Appeals’ decision directly undermines

the goal of both systems to foster employment opportunity.

It undercuts employers’ responsibilities to help integrate and

dependence on government entitlements, despite the drafters’

clear intention that people receiving disability benefits who

wish to work are the very individuals who most need the

protection and intervention of the law when seeking economic

* John C. Hennessey & L. Scott Muller, Work Efforts of Disabled-

Worker Beneficiaries, 57 Social Security Bulletin 42 (1994). A copy will

be lodged with the Clerk. See also Diller at 1046-47 and 1055-56.

» In 1995, over seven million of the forty-two million Americans with

disabilities received either SSI or SSDI. See Hearing on Growth in Social

Security Programs Before the Subcomm. on Social Security of the House

Comm. on Ways and Means, \04th Cong., Ist Sess. (1995).

self-sufficiency. Congressional creation of vocational

rehabilitation and work incentive programs for those with

disabilities are rendered futile when discrimination persists in

preventing gainful employment.”

D. Most SSA Benefits Awards Do Not Hinge on

an Individual Assessment of An Applicant’s

Ability to do Past or Current Work.

An important aspect of the Cleveland court’s apparent

misapprehension of the SSA disability benefits award process

is its failure to recognize the Social Security Administration’s

reliance on a “Listings of Impairments,” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, to determine a claimant's ability to work

without an individualized assessment of the extent to which a

particular claimant’s impairment actually limits the ability to

work.

The ADA largely repudiated a system of

presumptions; Congress instead adopted a functional analysis

of ability to work that requires a fact-specific, case-by-case

determination. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)-

(1). Under SSA regulations, however, an individual who

currently is not working or producing an average monthly

wage of $500, and who has an impairment equal in severity to

one included in the Listings, is deemed eligible for disability

benefits without a further assessment of the individual’s

ability to work. 20 C.F.R. §404.1520(d) (1998).” The Social

* As this Court noted when commenting on the enactment of §504 of

the Rehabilitation Act, “Congress recognized that vocational rehabilitation

of the handicapped would be futile if those who were rehabilitated could

not obtain jobs because of discrimination. Consolidated Rail Corp. v.

Darrone, 465 U.S. 624, 633 n. 12 (1984).

° The listings consist of medical criteria for certain disorders for each

of the major body systems, identifying more than 150 categories of

Security Administration relies on a catalogue of severe

impairments which, when medically documented, replaces an

assessment of the impairment’s impact on an applicant’ s

ability to work. Diller, infra, Dissonant Disability Policies at

1038.

The award of SSA disability benefits in such cases

does not amount to a finding that the individual is unable to

work. Rather, the award of benefits reflects the underlying

severe warrant an exemption from the societal obligation to

maintain economic independence through “substantial gainful

employment.” While a court should consider approval of

benefits powerful support for the first part of an ADA ‘

plaintiff's prima facie case — that the person is an individual

with a disability — the benefits application or approval gives

no indication of whether that individual is qualified to

perform the essential job functions of a particular job with or

without a reasonable accommodation. According to a 1993

Congressional publication, more than half of all SSA

disability benefits awards are based on the Listings. See

Committee on Ways and Means, 103 Cong., Overview of

Entitlement Programs: 1993 Green Book 57 (Comm. Print

1993). In most cases in which benefits are awarded, then,

SSA has not considered the applicant’s ability to work. See

Diller, infra, Dissonant Disability Policies at 1039. This

system of presumed disabling impairments, unlike the ADA,

combines the medical criteria of certain long-term

impairments with the presumption of an inability to work.

Consideration of some of those conditions which SSA

includes in its Listing of Impairments helps to illustrate both

medical conditions that are sufficiently severe in SSA’s view to ordinarily

prevent a person from engaging in “substantial gainful activity.” 20

C.F.R. §404.1525(d); see also EEOC Enforcement Guidance at 11, fn 41.

those types of conditions which SSA deems sufficiently

severe to relieve an affected individual of the obligation to

work, and the compatibility between a finding of benefits

eligibility and an ability to work with or without

accommodations. For example, paraplegia (the loss of use of

both hands or feet), blindness (e.g., central visual acuity of

20/200 or less with correcting lenses), severe hearing loss and

loss of speech all are “listed” impairments which qualify one

for presumptive eligibility for disability benefits under SSA

regulations, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, §1.09,

2.02, 2.04, 2.08, 2.09, yet clearly individuals with one or

more of these conditions might be a “qualified individual with

a disability” with or without reasonable accommodations

under the ADA. See also EEOC Enforcement Guidance at

11-12, fn 41. A person with chronic anemia requiring a blood

transfusion once every two months also is presumed eligible

for Social Security disability benefits, see 20 C.F.R. Pt. 404,

Subpt. P, App. 1, §7.02; such a person, however, might secure

accommodation of transfusion needs and fluctuating energy

levels and consequently maintain employment. Mental

retardation (determined in part by an IQ score of less than 59)

also is included in the Listings, see 20 C.F:R. Pt. 404, Subpt.

P, App. 1, §9.09, yet a person with this degree of mental

retardation is able to work in many cases.

Presumptive determinations under Social Security also

include many people with AIDS. 20 C.F.R. Pt. 404, Subpt. P,

App. 1. At the same time, a basic aspect of HIV-related

disease remains its unpredictability, and the ability of a person

with AIDS to work may fluctuate. After an opportunistic

infection or other illness has passed, the same person whom

Social Security defines as totally “disabled” under its

presumptive criteria may once again be able to work, with or

without reasonable accommodation.

Much like the impairment Carolyn Cleveland suffered,

sensory or motor aphasia which interferes with effective

communication following a central nervous system vascular

accident, also qualifies for presumptive eligibility for benefits.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §11.04. Cerebral

palsy and epilepsy also can satisfy the requirements of the

Listings for presumptive eligibility. See 20 C.F.R. Pt. 404,

Subpt. P, App. 1, §§11.02, 11.07. All individuals with any of

these conditions at the listed level of severity are presumed,

under SSA, unable to maintain self-sufficiency and eligible

for disability benefits; none are presumed unable to work

under the ADA.

Because “disability” is a term of art which differs

under the two statutes, a claim that an individual is disabled

for the purposes of one statute cannot be determinative of

whether that individual is also disabled for purposes of the

other.*°

Il. IMPOSING PRESUMPTIVE INELIGIBILITY

FOR ADA PROTECTIONS ON THOSE WHO

APPLY FOR DISABILITY BENEFITS

CREATES BARRIERS TO FAIR

ENFORCEMENT OF THE ADA THROUGH A

DISTORTION OF THE PRINCIPLE OF

ESTOPPEL AND THE STANDARD FOR

SUMMARY JUDGMENT.

* See, e.g., Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir.

1992)("[A] finding [of disability] is consistent with a claim that the

disabled person is ‘qualified’ to do his job under the Rehab Act. First, 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 in the national economy. . . . Second, even if the SSA had looked

into Overton's ability to find work in the national economy, its inquiry

would necessarily be generalized. The SSA 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.").

Traditionally, the doctrine of judicial estoppel has

been confined to situations in which the same litigant takes

opposing factual positions before the same tribunal, to prevent

litigants from “playing fast and loose with the courts.”*' The

Court of Appeals and the court decisions it parallels have

significantly stretched the doctrine beyond its supportable

boundaries.

Relying on an estoppel theory to preclude claimants

from presenting supporting evidence to a jury on a central

issue of fact -- their ability to perform, with reasonable

accommodation, the essential functions of the job in question

-- is especially inappropriate. The standard for a summary

judgment motion, that there be "no genuine issue as to any

material fact," Fed. R. Civ. P. 56(c), certainly is not met when

plaintiff and defendant are in dispute over whether the

plaintiff is otherwise qualified for the job, a question of fact

which is central to the outcome of the proceedings.

Statements which, at most, may appear to the Court to

controvert the employee's current position are no different

than the vast array of impeachment evidence presented at trial

which the fact finder must weigh.

A fundamental principle of Fed. R. Civ. P. 56 is that

the evidence, and inferences that may be drawn from it, must

be construed in the light most favorable to the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The Fifth Circuit’s rebuttable presumption of estoppel turns

this principle on its head. It construes the inferences that may

be drawn by the plaintiff's statements in support of disability

*' For example, the Third Circuit's pre-McNemar standard for judicial

estoppel enunciated in Scarano v. Central R.R., 203 F.2d 510, 513 (3d

Cir. 1953), requires contrary positions taken by the same litigant, in front

of the same court and the same adversary from which she already

obtained relief. Because the doctrine seeks to protect the integrity of the

judicial system, id., only statements made in front of adjudicative

tribunals should be relevant.

benefits as fatal to her prima facie case, allowing plaintiff to

_ Overcome presumptive estoppel in only the rarest of cases.

The rebuttable presumption that Carolyn Cleveland's

statements related to her SSA claim estop her from making

her ADA case also is at odds with the view expressed by other

circuits, and this Court, that the larger goal of rooting out

employment discrimination dictates caution in disposing of

such cases at summary judgment. The reasoning of the D.C.

Circuit in Aka v. Washington Hospital Center, 116 F.3d 876

(D.C. Cir. 1997) is instructive:

Our review of grants of summary judgment on claims

of employment discrimination involves two further

considerations. First, because employment

discrimination claims center on the issue of an

employer’s intent, and “writings directly supporting a

claim of intentional discrimination are rarely, if ever,

found among an employer’s corporate papers,” an

added measure of “rigor,” or “caution,” is appropriate

in applying this standard to motions for summary

judgment in employment discrimination cases. Courts

reviewing such motions must bear in mind that a fact

finder could infer intentional discrimination even in

the absence of crystal-clear documentary evidence

filed at the summary judgment stage. [citations

omitted].

Id. at 879-880. The Ninth Circuit relied on similar reasoning

when it reversed summary judgment for defendant in an age

discrimination claim in Schnidrig v. Columbia Mach., 80 F.3d

1406 (9" Cir. 1996). Noting it’s high standard for the grant

of summary judgment against plaintiffs in employment

discrimination cases, the court explained that it requires “very

little evidence” to survive summary judgment in such cases

“because the ultimate question is one that can only be

resolved through a ‘searching inquiry’ — one that is most

appropriately conducted by the fact finder, upon a full

record.”[citations omitted] Jd. at 1410. This Court also has

recognized the overarching public policy reflected in federal

antidiscrimination laws that should guide courts in summary

dismissal of cases. In McKennon v. Nashville Banner

Publishing Co. 513 U.S. 352 (1995), the trial court had

dismissed an ADEA claim based on the employer’s

discovery, after the plaintiff s discharge, that the latter had

committed misconduct sufficiently serious to provide an

independent basis for her firing. In a unanimous opinion

reversing the dismissal, Justice Kennedy stated:

The ADEA, enacted in 1967 as part of an

ongoing Congressional effort to end discrimination in

the workplace, reflects a societal condemnation of

invidious bias in employment decisions. The ADEA

is but part of a wider statutory scheme to protect

employees in the workplace nationwide. See Title

VII...; the Americans with Disabilities Act...; the

National Labor Relations Act...; the Equal Pay

Act...[citations omitted]

The objectives of the ADEA are furthered

when even a single employee establishes that an

employer has discriminated against him or her. The

disclosure through litigation of ...practices which

‘violate national policies is itself important... The

efficacy of its enforcement mechanisms becomes one

measure of the success of the Act.

Id. At 884-85.

Where the record, as here, contains evidence that the

plaintiff has a disability and is capable of performing her job

duties with reasonable accommodation, statements made to

the Social Security Administration that she has a disabling

RRR et

condition which has precluded her employment do not

support a motion for summary judgment.** To use a vague

and contextually dependent statement that an individual is

“totally disabled" or “unable to work” under a different

scheme to grant summary judgment on an ADA claim divests

the jury of a critical function, the weighing of evidence.

Utilization of judicial estoppel should reflect its

original and limited objective -- the elimination of

intentionally fraudulent behavior before judicial tribunals.

Requiring that courts rely on an individualized factual

determination of plaintiffs ability to satisfy the essential

requirements of a particular job does not deprive the fact

finder of the opportunity to consider the plaintiff's experience

with disability benefits programs. Amici’s position here is not

that the application for or receipt of SSA disability benefits is

irrelevant to a determination of a plaintiff's prima facie case;

rather, it is amici’s position that a plaintiff's experience with

disability benefits claims cannot be dispositive of the case.

Legal constructions such as the Fifth Circuit’s

“rebuttable” presumption that disability benefit claimants are

estopped from challenging workplace discrimination have

stunted any significant development of legal protection for

people with disabilities. In a report released earlier this year,

the American Bar Association’s Commission on Mental and

Physical Disability Law found that employers prevailed in

92% of the court rulings under the ADA where a final

decision was reached. Study Finds Employers Win Most ADA

Title I Judicial and Administrative Complaints, Mental and

Physical Disability Law Reporter at 407 (May-June 1998).

As the ABA reports, “The facts strongly suggest . . . [that]

employees are treated unfairly under the act due to myriad

legal technicalities that more often than not prevent the issue

* See Talavera v. School Board, 129 F.3d 1214 (11* Cir. 1997);

Aldrich v. Boeing, 146 F.3d 1265 (10" Cir. 1998).

of employment discrimination from ever being considered on

the merits by an administrative or judicial tribunal.” Jd. This

Court’s reversal of the decision below is necessary to avert

reformulation of the ADA as a theoretical tool, rather than an

actual one, for redressing the systemic discrimination which

qualified individuals continue to confront.

CONCLUSION

The decision of the Court of Appeals should be

reversed and remanded, and the fact finder permitted to hear

and weigh all of the evidence relevant to Cleveland’s Title I

claim.

Respectfully Submitted,

Catherine Hanssens*

Beatrice Dohrn

Lambda Legal Defense & Education Fund, Inc.

120 Wall Street, Suite 1500

New York, New York 10005-3904

(212) 809-8585

Attorneys for Amici Curiae

*Counsel of Record

Dated: December 3, 1998

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APPENDIX

AIDS Policy Center for Children, Youth & Families is

a non-profit organization founded in 1994 to help respond to

the unique concerns of HIV positive and at-risk children,

youth, women and families and their service providers. AIDS

Policy Center conducts policy research, education and

advocacy on a broad range of HIV/AIDS prevention, care and

research issues. Organizational members include over 350

community-based agencies in 27 states, the District of

young people, women and family members throughout the

United States. Many of AIDS Policy Center’s members

provide or receive services funded by Title IV of the Ryan

White CARE Act.

American Association of Retired Persons (“AARP”)

is a nonprofit membership organization of persons age 50 and

older that is dedicated to addressing the needs and interests of

older Americans. More than one-third of AARP’s thirty-two

million members are employed. One of AARP’s primary

objectives is to strive to achieve dignity and equality in the

towards work and retirement. In pursuit of this objective,

AARP has, since 1985, filed more than 150 amicus briefs

before this Court and the Federal appellate and district courts.

The American Association on Mental Retardation

(“AAMR”) is the nation’s oldest and largest interdisciplinary

organization of professionals who work with people with

mental retardation and other developmental disabilities in

human resources and leadership, promotes high quality

services and supports that enable full community inclusion

and participation, encourages research and its dissemination

and application, advocates for progressive public policies, and

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influences public awareness and attitudes. The mission of the

AAMR is to enhance the opportunities, human rights and

choices of people with mental retardation and their families

by exchanging information that advances the skills and

knowledge of individuals in the field.

The American Medical Student Association

(“AMSA”) is an independent student-run organization of

nearly 30,000 physicians-in-training members from 143

allopathic and 17 osteopathic medical scheels across the

country. Founded in 1950, AMSA is committed to improving

health care and health care delivery to all people, promoting

active improvement in medical education, involving its

members in the social, moral and ethical obligations of the

profession of medicine, assisting in the improvements and

ufiderstanding of world health problems, contributing to the

welfare of medical students, interns, residents and post

MD/D0O trainees, and advancing the profession of medicine.

AMSA believes the burden of proof of judgment, reliability,

capability, or entitlement to a position for individuals with a

disability should not be greater than or different from that

placed on other persons.

The American Network of Community Options and

Resources (“ANCOR”) is the national organization

representing 650 private providers of supports and services to

more than 150,000 people with mental retardation and other

disabilities in assisting them to live, work, and recreate in the

community. Many of the individuals to whom ANCOR

members provide supports depend upon Supplemental

Security Income and Social Security Disability Income as

their sole source of income in order to ensure appropriate

housing, health coverage, and other needed supports.

Although there are increasing opportunities for more people

with disabilities to obtain some level of employment, their

disability is not eliminated by part-time or full-time employment.

The American Public Health Association (“APHA”) is

a national organization devoted to the promotion and

protection of personal and environmental health. Founded in

1872, APHA is the largest public health organization in the

world, representing over 50,000 public health professionals.

It represents all disciplines and specialties in public health.

APHA supports the goal of equalization of opportunities for

mentally and physically disabled persons in every facet of life.

The Arc of the United States, a national organization

on mental retardation, is an open membership organization

made up of people with mental retardation and their families,

friends, interested citizens, and professionals in the disability

field. With 140,000 members in 1,100 state and local

chapters nationwide, The Arc is the largest voluntary

organization devoted solely to working on behalf of the

estimated seven million people with mental retardation in the

United States and their families. The Arc has been intensely

involved in pursuing federal legislation which supports the

rights of people with mental retardation, including enactment

of the ADA and eligibility for Social Security Disability

benefits.

The Association of Nurses in AIDS Care is a

nonprofit professional nursing organization committed to

fostering the individual and collective professional

development involved in the delivery of health care to persons

infected or affected by HIV and to promoting the health,

welfare, and rights of all HIV infected persons.

The Association for Persons in Supported

Employment (“APSE”) is a rapidly growing national

organization formed to improve and expand integrated

employment services and outcomes through supported

employment (SE) for persons experiencing disabilities.

APSE members are SE professionals, consumers, family

members, employers, rehabilitation counselors, advocates,

and state and federal agency officials. The outcome of the

Cleveland brief will have a dramatic impact on the lives of

each of these individuals, most especially those who are

supported employees.

The Brain Injury Association, Inc. (“BIA”) is the only

national non-profit organization dedicated to improving the

quality of life of persons with brain injury, as well as

promoting research, education and prevention of brain

injuries. BIA has 42 state associations and serves persons

with brain injury, their families and care givers in all 50 states

and territories. BIA represents and advocates with and on

behalf of the estimated 2.5 to 6.5 million persons with

moderate to severe brain injuries in the United States. Many

persons with brain injury are recipients of Social Security

Disability Insurance (“SSDI”) and/or Supplemental Security

Income (“SSI”). As a result of changes in rehabilitation

programs, an increasing number of persons with brain injury

are gainfully employed. Part of BIA’s mission is to assure

that all persons with brain injury are afforded the protections

of the Americans with Disabilities Act. The disposition of

this case will affect the ability of persons with brain injury to

have access to and security in employment without losing

their entitlement to SSDI —

The Center for Independence of the Disabled in New

York (“CIDNY”) is one of the network of federally-

authorized independent living centers. See, 29 U.S.C. §796 ef

seq. Founded in 1979, CIDNY is the oldest such center in

New York State. It is organized as a not-for-profit

corporation. CIDNY’s core mission is to empower people

with disabilities to function as independently and effectively

as possible. It assists people with disabilities to acquire

independent living skills and to obtain the services they need

to live independently in the community. Its missions include

“system advocacy,” 29 U.S.C. §796. Many of CIDNY’s staff

and board of directors are people with significant disabilities.

The Center for Women Policy Studies (“CWPS”) is a

national non-profit, multiethnic and multicultural feminist

policy research and advocacy institution founded in 1972. In

1987 the Center founded the National Resource Center on

Women and AIDS Policy and has been a leader in addressing

critical AIDS policy issues from women’s diverse

perspectives. The Resource Center has produced more than

30 research, advocacy and policy reports since its inception,

including an analysis of the Social Security Administration

rules for determining eligibility for HIV-related disability in

women. CWPS’s Metro DC Collaborative for Women with

HIV/AIDS project works directly with low income women

living with HIV who will be directly impacted by the ruling in

this case.

The Center on Disability and Health is a not-for-

profit, Washington, D.C. based research, education and

advocacy organization founded in 1994 with a national board

of directors representing different sectors of the disability

community. A strategic mission of the Center has been using

the protected status of persons with disabilities under the

Americans with Disabilities Act to challenge discrimination

in health care delivery where persons with disabilities are

denied an equal opportunity to benefit from covered services.

The center supports the amicus brief in Cleveland v. Policy

Management Systems in order to protect the right of persons

with disabilities to challenge discrimination in the workplace

when reasonable accommodations are not provided even

though they later qualify for Social Security disability

benefits.

The Coalition for the Homeless (“Coalition”) was

founded in 1980 on the principle that decent shelter, sufficient

food and affordable housing are fundamental rights in a

civilized society. The Coalition educates, advocates for and

provides direct services to homeless persons. The Coalition’s

Scattered Site Housing Program provides apartments,

personal support, medical assistance, and vital services to

homeless people living with HIV and AIDS.

The Coalition on Human Needs (“Coalition”),

founded in 1981, is an alliance of over 170 national

organizations working together to promote public policies

which address the needs of lower income and other

vulnerable populations. The Coalition’s members include

civil rights, religious, labor, and professional] organizations

and those concerned with the well-being of children, women,

the elderly and people with disabilities. The Coalition also

works with grassroots groups across the country that share an

interest in the human needs agenda.

The Commission on Rehabilitation Counselor

Certification is the national credentialing organization that

sets certification standards for Certified Rehabilitation

Counselors (“CRCs”). CRCs provide services to individuals

with disabilities to facilitate their in¢ependence, integration

and inclusion in employment and the community.

The Committee For Children is a national advocacy

group with an interest in all aspects of child protection,

health, education, and fighting the exploitation of children.

Disability Rights Education and Defense Fund, Inc.,

(“DREDF”) is a national disability civil rights law and policy

organization dedicated to securing equal citizenship for

Americans with disabilities. Since its founding in 1979,

DREDF has pursued its mission through education, advocacy

and law reform efforts. Nationally recognized for its

expertise in the interpretation of federal disability civil rights

laws, DREDF has consistently worked to promote the full

integration of citizens with disabilities inte the American

mainstream, and to ensure that the civil rights of persons with

disabilities are protected and advanced.

Disabled in Action of Metropolitan New York, Inc.,

(“DIA”) is a not-for-profit membership organization founded

in 1970. Its approximately 400 members are primarily people

with disabilities who live or work in New York City. They

have a wide range of disabilities. DIA is dedicated to

improving the legal, social and economic conditions of people

with disabilities, so that they may achieve full integration into

society. It works to ensure that people with disabilities

receive equal access to employment, health care, public

entitlements, education, housing, public accommodations,

transportation and other services. It publishes a newsletter

and engages in advocacy on a broad range of disability rights

issues. It worked to secure passage of §504 of the

Rehabilitation Act uf 1973, the disability rights provisions of

the New York State Human Rights Law, and the Americans

with Disabilities Act.

The Employment Law Center (ELC) is a project of the

Legal Aid Society of San Francisco, a private, non-profit

organization. The primary goal of the ELC is to improve the

working lives of disadvantaged people. Since 1970, the

Center has represented clients in cases covering a broad range

of employment-related issues including discrimination on the

basis of race, gender, age, disability, pregnancy and national

origin. The Center’s interest in the legal rights of those with

disabilities is longstanding. The ELC has and is representing

clients faced with discrimination on the basis of their

disabilities, including clients with claims brought under Title

Il of the Americans with Disabilities Act. The Center has

also filed amicus briefs in cases of importance to disabled

persons.

The Epilepsy Foundation (“EF”) is the sole national,

charitable voluntary health organization dedicated to

promoting optimal quality of life and independence for the

more than two million Americans with a seizure disorder.

The Foundation and its network of affiliates work to

accomplish this mission through education, research,

advocacy and the provision of services. EF has had a long-

standing commitment to ensuring that people with epilepsy or

seizures are given the opportunity to do so, and conducts both

national and state employment programs in order to reach its

goal. As part of its commitment to the fullest participation in

life and employment possible for people with epilepsy, the

Foundation also had put considerable energy into the passage

and implementation of laws such as the Americans with

Disabilities Act.

The Friends Committee on National Legislation

(“FCNL”), since its creation in 1943, has endeavored to bring

Quaker values to bear on national policy. Through

Congressional testimony, Capitol Hill visits, educational

activities, publications, and grassroots lobbying, FCNL works

for social and economic justice, peace, and good government.

FCNL supports vigorous enforcement of the Americans with

Disabilities Act (“ADA”) and advocates providing income

support to families and individuals, including those who are

disabled and those who are unable to meet their basic needs

through employment.

The Gay and Lesbian Medical Association (“GLMA”)

is an organization of lesbian, gay, bisexual and transgendered

physicians, medical students, and their supporters. GLMA

works to maximize the quality of health and health services

for lesbian, gay, bisexual and transgendered people, to

promote full civil rights, and to foster a professional climate

in which our diverse members can achieve their full potential.

We strive to achieve our goals by: educating health care

professionals about our unique health care needs; helping to

develop equitable health care policy; promoting relevant

research in health; and supporting our members who are

challenged by discrimination on the basis of sexual

orientation.

The HIV Law Project (“Law Project”), founded in

1989, is a not-for-profit organization which provides legal

representation and advocacy to low-income, HIV-positive

individuals residing in Manhattan and the Bronx, or who are

homeless. During its nine years of operation, the HIV Law

Project has directly assisted close to 10,000 HIV-positive

individuals, including thousands of low-income, HIV-positive

women. We offer free, quality legal assistance and advocacy,

primarily in the areas of family law, entitlements,

immigration, and housing. In 1997, the Law Project has

played a significant role in the development and improvement

of local, state, and national public policies affecting HIV-

positive women. Through its efforts to ensure that the needs

of HIV-positive women and other underserved HIV-positive

persons are considered by policy makers, the Law Project has

assisted tens and thousands of HIV-positive individuals

across the country.

Housing Works is a minority-controlled, community

based, nonprofit agency providing housing, health care,

advocacy, job training, and vital supportive services to

homeless New Yorkers living with HIV and AIDS. Their

mission is to reach the most vulnerable and underserved

among those affected by the AIDS epidemic: people who, in

addition to struggling with homelessness and AIDS, are also

burdened with histories of chronic mental illness and

chemical dependence. Housing Works has designed a

comprehensive range of services designed to meet the

complex, multiple needs of our clients; services intended

specifically to help them gain stability, security, and

independence so that they can live longer, healthier lives with

hope and dignity.

International Association of Psychosocial

Rehabilitation (“IAPR”) was formed in 1975 to bring together

programs and agencies, mental health practitioners, policy

makers, families and consumers to strengthen and improve

the quality of community based psychosocial rehabilitation

services throughout the world. IAPR fosters public policy

discussions on mental health, provides education and training

for practitioners, families, and consumers, and publishes the

Psychiatric Rehabilitation Journal as a forum for research and

critical thought.

Justice For All (“JFA”) is a not-for-profit entity

created in 1994. JFA serves as an advocate for the disability

community and is dedicated to protecting, implementing, and

strengthening the Americans with Disabilities Act, the

Individuals with Disabilities Education Act, and all existing

programs and policies that empower people with disabilities.

The JFA works in cooperation with other organizations to

facilitate the coordination of advocacy and the exchange of

information among all national, state and local disability

groups.

Lambda Legal Defense and Education Fund, Inc.

(Lambda) is a national non-profit public interest legal

organization dedicated to the civil rights of lesbians, gay men

and people with HIV/AIDS through impact litigation,

education and public policy work. Founded in 1973, Lambda

is the oldest and largest legal organization addressing these

concerns. In 1983, Lambda filed the nation's first AIDS

discrimination case. Lambda has appeared as counsel or

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amicus curiae in scores of cases in state and federal courts on

behalf of people living with HIV or other disabilities,

including, in part, Bragdon v. Abbott, 107 F.3d 934, cert.

granted 118 S.Ct. 554 (1997); Doe & Smith v. Mutual of

Omaha Insurance Company, 1998 WL 166856 (N.D. Ill.

April 3, 1998); School Bd. for Nassau Cty. v. Arline, 107 S.

Ct. 1123 (1987); Chalk v. U.S. District Court 814 F.2d 701

(9th Cir. 1988); McGann v. H&H Music Co., 946 F.2d 401

(5 Cir. 1991); and Gonzales v. Garner Food Services, Inc.,

89 F.3d 1523 (1996). Lambda is particularly familiar with the

unique barriers confronting persons with HIV, AIDS and

other disabilities who attempt to secure equal employment

opportunities.

The Legal Action Center is a nonprofit law and policy

organization specializing in AIDS, alcohol and drug issues.

The Center’s attorneys, who helped draft the ADA protections

at stake in Cleveland v. Policy Management Systems,

represent individuals with alcoholism, drug dependence and

HIV disease and the programs that serve them to resolve

discriminatory practices in employment, health care, housing,

and zoning.

LLEGO, The National Latina/o Lesbian, Gay,

Bisexual & Transgender Organization, is committed to

organizing and strengthening the Latina/o Lesbian, Gay,

Bisexual and Transgender communities at a local, national

and international levels by facilitating access to cultural,

political and community development resources. One of

LLEGOs goals is to bring to the attention of the local, state

and federal governments the glaring disparities in health care

and health education between non-minority Americans and

Latina/o Americans, and thus, obtain proportionate funding

levels.

All

The Mental Disability Law Clinic of Touro College,

Jacob D. Fuchsberg Law Center, is a legal services Protection

and Advocacy office established under the Protection and

Advocacy for Individuals with Mental Illness Act, 42 U.S.C.

§10805(a)(1)(B), to ensure the protection of the legal rights of

individuals labeled mentally ill. It receives federal funding

through a contract with the New York State Commission on

Quality of Care for the Mentally Disabled.

The National AIDS Fund (“Fund”) is the leading

business and pioneering philanthropic response to the

HIV/AIDS epidemic. Based in Washington, D.C., the Fund

represents more than 1,500 companies, foundations,

community groups and citizens whose contributions have

generated more than $70 million over the past decade to

combat the AIDS epidemic in communities across the

country. The Fund is marking its 10th anniversary in 1998.

The Fund provides national grants to 32 “Community

Partners” in 25 states. Partners match the grants with their

own fundraising and make grants to community organizations

that provide prevention, education, care and services. In

1997, the Fund and its Partners awarded grants totaling over

$10 million to more than 450 community groups. The Fund

is also a strategic resource for key information and services on

HIV/AIDS, and a pioneer in stimulating positive, practical

responses from business and labor, both domestically and

globally.

The National Association of People with AIDS

(“NAPWA”), founded in 1983, advocates on behalf of all

people living with HIV and AIDS in order to end the

pandemic and the human suffering caused by HIV/AIDS.

The National Association of Protection and Advocacy

Systems (“NAPAS”), which was founded in 198l,isa

membership organization for the nationwide system of

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protection and advocacy (“P&A”) agencies. P&As are

mandated under the Developmental Disabilities Assistance

and Bill of Rights Act, 42 U.S.C. 6000 er seq., the Protection

and Advocacy for Mentally Ill Individuals Act, 42 U.S.C.

10801 et seq., and the Protection and Advocacy for Individual

Rights Program, 29 U.S.C. 794e, to provide legal

representation and related advocacy services on behalf of all

persons with disabilities. In fiscal year 1996, P&As served

over 1,000,000 people with disabilities through a variety of

mechanisms: individual case representation, systemic

advocacy, information and referral and education efforts.

NAPAS facilitates the coordination of P&A activities,

provides P&As with training and tchnical assistance and |

represents their interests before the Executive and Legislative

Branches of government.

The National Association of Orthopedic Nurses

(“NAON”) has 8,000 members in the United States. NAON’s

members treat individuals suffering from musculoskeletal

illnesses, including arthritis. Arthritis is the leading cause of

disability in the United States.

The National Council for Community Behavioral

Health care (“NCCBH”) is the nation’s oldest and largest

trade association representing direct care providers, state

associations, county authorities, integrated delivery systems,

and associations. Founded in 1970, NCCBH is dedicated to

the pursuit of accessible, effective, and cost-effective

behavioral health care services for all Americans.

The National Council of Jewish Women (“NCJW”),

Inc. is a volunteer organization, inspired by Jewish values,

that works through a program of research, education,

advocacy and community service to improve the quality of

life for women, children and families and strives to ensure

individual rights and freedoms for all. Founded in 1983, the

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NCJW has 90,000 members in over 500 communities

nationwide. Given NCJW’s historical commitment to civil

rights issues and active involvement in passage of the

Americans with Disabilities Act, we join this brief.

The National Health Law Program (“NHeLP”) is a

national public Interest firm that seeks to improve health care

for America’s working and unemployed poor, minorities,

elderly and people with disabilities. NHeLP serves legal

services programs, protection and advocacy offices,

community-based organizations, the private bar, providers,

and individuals who work to maintain a health care safety net

for the millions of uninsured or underinsured low income

people. NHeLP monitors Medicare, Medicaid and other

publicly-funded health care programs, seeks remedies when

laws and policies are ignored, and helps Americans receive

needed medical care.

The National Minority AIDS Council (“NMAC”),

established in 1987 is the premier national organization

dedicated to developing leadership within communities of

color to address the challenge of HIV/AIDS. MAC’s Public

Policy Division works to promote sound national HIV/AIDS

health and social policies which are responsive to the needs of

the diverse communities of color impacted by HIV/AIDS and

to increase the participation of people of color in policy-

making bodies.

The National Native American AIDS Prevention

Center’s (“NNAAPC”) mission is to prevent the spread of

HIV and related diseases in American Indian, Alaska Native,

and Native Hawaiian communities, and to improve the quality

of life of those in our communities infected and affected by

HIV. NNAAPC provides technical assistance, training, case

management services, research and policy advocacy to and for

Native Americans throughout the United States.

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The National Partnership for Women & Families

(National Partnership) is a national advocacy organization

opportunity, quality health care, economic security

tet re en Since its founding in 1971,

the National Partnership (formerly the Women’s Legal

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opportunities by monitoring agencies enforcement,

leading efforts to promote employment policies such as the

Family and Medical Leave Act and The Pregnancy

Discrimination Act.

The National Senior Citizens Law Center (“NSCLC”)

advocates nationwide to promote the independence and well-

being of low-income elderly individuals, as well as persons

racial and ethnic minorities. Much of NSCLC’s work focuses

on federal benefit programs, including Social Security and

Supplemental Security Income. To achieve its goals, NSCLC

engages in various advocacy efforts, including litigation,

policy analysis, and administrative and legislative advocacy.

Established in 1972, NSCLC maintains offices in

Washington, DC, and Los Angeles, CA.

NETWORK, a national Catholic social justice lobby,

works for federal legislation that favors the poor and

NETWORK lobbies and organizes for socially just legislation

including securing just access to economic resources,

economic justice. NETWORK educates on NETWORK’s

legislative issues and the political process for structural

changes.

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New York Lawyers for the Public Interest, Inc..

(“NYLPI”) is a non-profit public interest law office founded

in 1977 which practices disability, health and environmental

justice law. Under contracts with the New York State

Commission on Quality of Care for the Mentally Disabled, it

operates four federally-authorized Protection and Advocacy

programs in New York City, and serves people with all types

of disabilities in a wide variety of issues. See 29 U.S.C. §732:

42 U.S.C. §§6041 ef seg.; 42 U.S.C. §§10801 ef seg; and 29

U.S.C. §794e. NYLPI handles a broad array of matters

involving the Americans with Disabilities Act and similar

laws.

NISH (formerly National Industries for the Severely

Handicapped) maximizes employment opportunities for

people with severe disabilities through providing professional

and technical assistance to not-for-profit community

rehabilitation programs (CRPs) to encourage and assist their

participation in the Javits-Wagner-O’Day (JWOD) Program

and other employment or training activities as appropriate.

NISH is the central nonprofit agency designated by the

Committee for Purchase from People who are Blind or

Severely Disabled to provide assistance to CRPs interested in

obtaining federal contracts under the JWOD Program. It is

one of NISH’s goals to expand employment, personal

advancement and placement of people with disabilities by

maximizing opportunities created by the JWOD program

while taking advantage of other employment opportunities.

The civil nights of people with severe disabilities are of

utmost priority to NISH primarily for the protection of

employment rights. However, NISH also supports the

protection of civil rights for people with disabilities in all

areas to promote independent living and greatest

opportunities for an integrated life with the rest of society.

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Parents, Families and Friends of Lesbians and Gays

(“PFLAG”) was created in 1972 to promote the health and

well-being of gay, lesbian, bisexual and transgendered

persons, their families and friends through support, to cope

with an adverse society; education, to enlighten an ill-

informed society; and advocacy, to end discrimination and to

secure equal civil rights. PFLAG also provides opportunity

for dialogue about sexual orientation and gender identity, and

acts to create a society that is healthy and respectful of human

diversity. Today, PFLAG’s membership includes more than

70,000 households in 400-plus communities in the U.S. and

Puerto Rico and in 11 other countries.

RESNA is the Rehabilitation Engineering and

Assistive Technology Society of North America. RESNA is

an interdisciplinary association whose purpose is to improve

the potential of people with disabilities to achieve their goals

through the use of technology. The association serves that

purpose by promoting research, development, education,

advocacy and the provision of technology and by supporting

the people engaged in these activities. RESNA’s members

are dedicated to promoting the exchange of ideas and

ataneien Se Roane Semen Senay.

RESNA seeks to participate as amicus curiae in this case

because it believes that the Plaintiff's rights to seek remedies

under the ADA, including reasonable accommodations which

may include technologies, should not be impinged because

she received or applied for Social Security Disability

Insurance.

Founded in 1983, the San Francisco AIDS Foundation

is a non-profit community based AIDS service organization

that has been at the forefront of the battle against HIV disease

for fifteen years. The San Francisco AIDS Foundation is the

largest community-based service organization in Northern

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California providing an array of direct services to people

living with HIV/AIDS and at risk of HIV infection.

The Title II Community AIDS National Network, Lac.

(“T-II CANN”) is incorporated as a not-for-profit corporation

and represents the interests of service providers and their

clients who receive services funded under Title II of the Ryan

White CARE Act. T-II CANN provides technical assistance,

information, communications, publications and advocacy

training in issues ranging from the AIDS Drug Assistance

Program, Medicaid, Medicare, AIDS related health insurance,

and benefits. T-II CANN supports finding a cure for

HIV/AIDS and ensuring that access to that cure is available

for all people living with HIV/AIDS. Until a cure is

discovered, T-I] CANN will advocate for effective treatments

for HIV/AIDS and universal access to those treatments for all

people living with HIV/AIDS.

The Union of American Hebrew Congregations

(“UAHC”) is the synagogue arm of the Reform Jewish

movement, representing some 850 congregations and 1.5

million members nationwide. For over a century, the UAHC

has fought passionately for religious liberty and tolerance for

all Americans, believing these to be among the greatest gifts

America has bestowed upon its citizens of the world. The

UAHC played an active role in securing the passage of the

ADA.

The YWCA of the U.S.A. is the oldest national

women’s membership organization in the nation. Its mission

1958, it currently serves over two million women and girls

and their families through 340 YWCAs operating in 4,000

locations in all 50 states. Strengthened by diversity, the

Association draws together members who strive to create

opportunities for women’s growth, leadership and power in

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order to attain a common vision: peace, justice, freedom and

dignity for all people. YWCA supports the position taken in

this amicus curiae brief because of (1) their commitment to

confronting racism and bias at all levels in society and (2) a

public policy priority adopted at the YWCA's 1998

convention: health care policies that promote wellness and

provide access to quality affordable health care for all women

and girls.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.