Cato Deploys New Weapon: ÒDisability FraudÓ

Marta Russell

I wondered how long it would take a right-wing think tank to cry foul when it got hold of the fact that disabled person may collect Social Security Disability Insurance (SSDI) and pursue an Americans with Disabilities Act (ADA) employment discrimination claim against their former employer simultaneously. It took about 15 months from the Cleveland v. Policy Management Systems Corp Supreme Court ruling for the Libertarian Cato Institute to come out with the policy analysis “Facilitating Fraud: How SSDI Gives Benefits to the Able Bodied.”

The Cato Institute has a history of using its $13 million a year budget to influence Washington policy makers and push government policy to the right. ZNET readers most likely already know that it is opposed to public sector programs and has been agitating for the privatization of Social Security, which if imposed upon the nation, would be the beginning of the end of the social safety net.

Readers may not know that the Cato Institute has exhibited prominent hostility towards the ADA. The year the ADA was signed, it called on President Bush “to ask Congress to reconsider” the ADA since from the standpoint of free enterprise, it represented a re-regulation of the economy that was harmful to business. In 1995, the director of regulatory studies at Cato wrote “If Congress is serious about lifting the regulatory burden from the economy, it must consider major changes in, if not outright repeal of, the ADA. And if Congress is to undo the damage already done by the act, it should consider paying reparations to cover the costs that individuals, private establishments, and enterprises have suffered under the ADA's provisions.”

Cato is anti-regulatory and anti-government, but what it mostly is about is thwarting any social policy which it perceives interferes with business drive to accumulate. While it can be said to be anti-government, we can't take that too seriously because it isn't against business benefiting from government largess. Rupert Murdoch, for instance, sits on the Cato board and doesn't pay a cent for frequency licenses to use the public airwaves (the entire spectrum has been valued at $70 billion). More accurately the Cato Institute can be described as being anti-government when those government policies are geared to help working class people instead of the owning class: theirs is a philosophy of capitalism for the average Joe and socialism for the capitalists.

The “disability fraud” paper is no exception. Cato's beef is that Social Security Administration (SSA) officials can award full SSDI benefits to persons who pursue ADA disability discrimination claims. The author, James M. Taylor, poses:

“...to assert an ADA claim, a plaintiff must argue that he is fully capable of performing a desired job. How can a person be simultaneously able and unable to work?”

Let's look at Cleveland to see what happened to the plaintiff in that case. Carolyn Cleveland, the plaintiff, became disabled. She told her employer, Policy Mangagement Systems Corp., that she could continue to do her job if it provided a reasonable accommodation. As so often happens when these matters are pressed upon employers, hers denied the reasonable accommodation request and then fired her for failure to perform.

Workers pay a heavy personal price when employers contest disablement or refuse badly needed access modifications, reasonable accommodations and/or removal of work barriers and choose instead to put up a fight in court. When, for example, an employee cannot work without an accommodation and the employer does not readily provide one, the worker is often unable to perform her job and is fired. Common sense would dictate that when the worker has a protracted court battle ahead of her to enforce her right to an accommodation but no paycheck in the mail, the last practical resort is to go onto disability benefits. Yet employers use a worker's qualification for disability benefits to undermine discrimination cases against them. Under SSA's definition of disablement, a worker is qualified for benefits if he/she cannot work; SSA does not consider whether the employee could continue to work if the employer provided a reasonable accommodation. The employer, contesting the worker's discrimination suit, holds that if the worker claims he/she cannot work for purposes of claiming disability benefits, they cannot work and therefore the discrimination suit is moot.

Cleveland subsequently successfully applied for Social Security disability benefits and as was her right, she sued the employer for failure to comply with the ADA. The Supreme Court granted certiorari to decide:

“whether an ADA plaintiff 's representation to the [Social Security Administration] that she was ‘totally disabled' created a rebuttable presumption sufficient to judicially estop her later representation that, for the time in question, with reasonable accommodation, she could perform the essential functions of her job.”

The justices ruled in Cleveland that application for and receipt of SSDI benefits does not automatically estop a recipient from pursuing an ADA claim or erect a strong presumption against the recipient's ADA success. However, it held that to survive a summary judgment motion an ADA plaintiff cannot ignore her SSDI contention that she was too disabled to work, but must explain why that contention is consistent with her ADA claim that she can perform the essential functions of her job, at least with reasonable accommodation. 125 Under this holding both parties will have the opportunity to present or contest the plaintiff's explanation. Furthermore, a plaintiff may argue that her SSDI statement of total disability was made in a forum that does not consider the effect that a reasonable workplace accommodation would have on ability to work. She may also argue that statements were reliable at the time they were made.

The Cato Institute claims this is “disability fraud.” Taylor writes “...any person who files an employment discrimination claim under the ADA is by definition arguing that he can perform a particular job, though often with the stipulation that the employer make some “reasonable accommodation” for the person's condition. If a person has asserted under oath that he is capable of performing one of more jobs that he desires, then logic tells us that that person cannot at the same time claim under oath that in reality he cannot perform any type of work that exists in the national economy.” Clearly, Taylor has taken the side of business.

Although Taylor states that the ADA mandates an employer to provide a reasonable accommodation “whenever and wherever disabled persons need them” he conveniently fails to make the connection that Cleveland's employer

denied her an accommodation. If the employer had complied with the law that the Cato Institute has done its best to kill, then Cleveland would not have sued her employer nor would she be on disability benefits.

Still it is questionable how worker-friendly the Supreme Court ruling is. It does not preclude the employer from firing the worker first and does not guarantee a favorable outcome for the disabled employee. The court warned that “in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim.” It remains to be seen how workers with disabilities will fare.

How are disabled workers faring at the Cato Institute? After reading Taylor's paper, I called to inquire how many deaf, blind, mobility or otherwise impaired persons Cato Institute had amongst their 75 employees. Bill Erickson, VP of Finance and Administration, told me Cato had “no disabled employees at the moment” but they would hire someone “if they were qualified for the job.” When I asked how many had worked there in the past, he said he really couldn't say.

Why doesn't Taylor go after the failure of business to provide a reasonable accommodation or the conservative courts which are consistently ruling in favor of employers' interests? Plaintiffs face an overall lack of success in the courts where employers have been charged with disability discrimination. Studies show that in the first eight years, defendants (businesses) overwhelming prevailed in ADA employment cases at both the trial and appellate court levels. Law professor Ruth Colker states that this outcome is “worse than results found in comparable areas of the law; only prisoner rights cases fare as poorly.”

Nine years after the passage of the ADA, national employment surveys show no real statistical gain in employment. One study suggests that proportion of working-age adults with disabilities who are employed has declined since 1986, when one in three (34 percent) were working. If Taylor is so concerned about how many people are on SSDI, why doesn't he criticize the employer's calculus when deciding to hire or retain disabled workers? Employers often think it is cheaper to get rid of a disabled employee than to retain them. Employers are creating the persons who must apply for SSDI.

The answer is no mystery. Taylor's “disability fraud” is think-tank ammunition bought by the wealthy who Cato represent to further push government policy to the right and to undo working class security. Undermining SSDI claims is a means to this end.

-- Marta Russell can be reached at ap888@lafn.org http://disweb.org/