*The U.S. Equal Employment Opportunity Commission*

----

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

```

EEOC NOTICE
Number 915.002 
Date 2-12-97



1. SUBJECT: EEOC Enforcement Guidance on the Effect of Representations
Made in Applications for Benefits on the Determination of Whether a Person
Is a "Qualified Individual with a Disability" Under the Americans with
Disabilities Act of 1990 (ADA). 
        
2. PURPOSE: This enforcement guidance sets forth the Commission's position
that representations made in connection with an application for disability
benefits should not be an automatic bar to an ADA claim. 

3. EFFECTIVE DATE: Upon receipt. 

4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B,
Attachment 4, � a(5), this Notice will remain in effect until rescinded or
superseded. 

5. ORIGINATOR: ADA Division, Office of Legal Counsel

6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance
Manual. 







                                                 /S/
___________________             ___________________________________
Date                            Gilbert F. Casellas
                                Chairman



Table of Contents




Executive Summary

Introduction 

I. The ADA's Purposes and Standards Are Fundamentally Different from the
Purposes and Standards of Other Statutory Schemes and Contractual Rights. 

      A.     Americans with Disabilities Act

             1. Purposes
             2. Standards

      B.     Other Statutory Schemes and Contractual Rights   

             1. Social Security Act 
             2. Workers' Compensation 
             3. Disability Insurance Plans 

      C.     Analysis  

             1. The ADA Definition of "Qualified Individual with a 
                Disability" Always Requires an Individualized 
                Assessment of the Particular Individual and the 
                Particular Position; Other Definitions Permit 
                Generalized Inquiries and Presumptions.

             2. The ADA Definition of "Qualified Individual with a 
                Disability" Requires Consideration of Reasonable 
                Accommodation; Other Definitions Do Not Consider 
                Whether an Individual Can Work with Reasonable 
                Accommodation.

II. Because of the Fundamental Differences Between the ADA and Other
Statutory and Contractual Disability Benefits Programs, Representations
Made in Connection with an Application for Benefits May Be Relevant to --
but Are Never Determinative of -- Whether a Person Is a "Qualified
Individual with a Disability." 

      A.     Representations Made in Connection with an Application for 
             Disability Benefits Are Not Determinative of Whether a 
             Person Is a "Qualified Individual with a Disability." 

             1. Judicial Estoppel 
             2. Summary Judgment 

      B.     A Determination of What, if Any, Weight to Give to 
             Representations Made in Support of Applications for 
             Disability Benefits Depends on the Context and Timing of 
             the Representations.

              1. Context 
              2. Timing  

III. Public Policy Supports the Conclusion that Representations Made in
Connection with an Application for Disability Benefits Are Never an
Absolute Bar to an ADA Claim. 

      A.     Permitting Individuals to Go Forward with Their ADA Claims 
             Is Critical to the ADA's Goal of Eradicating 
             Discrimination Against Individuals with Disabilities. 

      B.     Individuals Should Not Have to Choose Between Applying for 
             Disability Benefits and Vindicating Their Rights Under the 
             ADA.

IV. Instructions to Investigators 

Executive Summary: Enforcement Guidance on the Effect of Representations
Made in Applications for Benefits on the Determination of Whether a Person
Is a "Qualified Individual with a Disability" Under the Americans with
Disabilities Act of 1990 (ADA or Act)

                   --------------------------------

Introduction

      This Enforcement Guidance explains why representations about the
ability to work made in the course of applying for social security,
workers' compensation, disability insurance, and other disability benefits
do not bar the filing of an ADA charge.  It provides instructions to EEOC
investigators for assessing what weight, if any, to give to such
representations in determining whether a charging party (CP) is a
"qualified individual with a disability" for purposes of the ADA. 

      A "qualified individual with a disability" is "an individual with a
disability who satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such individual
holds or desires and who, with or without reasonable accommodation, can
perform the essential functions of such position."  Because of the
fundamental differences in the definitions used in the ADA and the terms
used in disability benefits programs, an individual can meet the
eligibility requirements for receipt of disability benefits and still be a
"qualified individual with a disability" for ADA purposes.  Thus, a
person's representations that s/he is "totally disabled" or "unable to
work" for purposes of disability benefits are never an absolute bar to an
ADA claim. 


Americans with Disabilities Act      

      The definition of the term "qualified individual with a disability" 
reflects the ADA's broad remedial purpose to prohibit discrimination
against individuals with disabilities who want to work and are qualified
to work.  Accordingly, the definition: 


      � requires an individualized assessment of a particular individual's
        capabilities; 

      � focuses on the essential functions of a particular position;  

      � looks at particular positions, not work in general; and

      � considers whether a person can work with reasonable 
        accommodation.
       
      The ADA definition of "qualified individual with a disability"
differs from the definitions used in the Social Security Act, state
workers' compensation laws, disability insurance plans, and other
disability benefits programs designed for different purposes. 
       

Social Security Act 

      Disability programs established under the Social Security Act are
designed to provide income to individuals with disabilities who generally
are unable to work.  Unlike the ADA definition of "qualified individual
with a disability," the Social Security Administration (SSA) definition of
"disability": 

      
      � permits general presumptions about an individual's ability to 
        work;

      � considers all tasks as jobs are customarily performed without 
        focusing on the essential functions of a particular position;
      
      � looks generally at whether an individual can do work which 
        exists in the national economy rather than  whether s/he can 
        perform the essential functions of a particular position; and
 
      � does not consider whether a person can work with reasonable 
        accommodation. 

Workers' Compensation Laws

      The purpose of workers' compensation laws is to provide benefits to
individuals whose earning capacity has been reduced because of a
work-related injury or illness.  Unlike the ADA definition of "qualified
individual with a disability," the workers' compensation definitions of
"disability" generally: 

      � permit generalized presumptions about an individual's ability 
        to work; 

      � do not distinguish between marginal and essential functions; 

      � focus on whether an individual is unable to do any kind of work 
        for which there is a reasonably stable employment market rather 
        than whether s/he can perform the essential functions of a 
        particular position; and

      � do not consider whether an individual can work with reasonable 
        accommodation.

Disability Insurance Plans

      Disability insurance plans provide partial wage replacement when an
employee becomes unable to work as a result of illness, injury, or
disease.  Frequently, the definitions of "disability" under such plans: 

      � do not distinguish between essential and marginal functions of 
        a position; and

      � make no allowance for an individual's ability to work with 
        reasonable accommodation.


Relevant Factors for Determining Whether CP Is a "Qualified Individual
with a Disability" 

      When assessing the effect of representations made in connection with
an application for benefits on the determination of whether CP is a
"qualified individual with disability," investigators should consider the
following factors: 
 
      � the definitions of terms such as "disability," "permanent 
        disability," "total disability," "inability to work," etc., 
        under the relevant statute or contract pursuant to which CP 
        applied for disability benefits  (e.g., do they look at 
        specific positions or general kinds of work? do these terms 
        take into account reasonable accommodation?);

      � the specific content of the representations, who made them, and the
        purpose for which they were made;

      � whether the representations are in CP's own words;

      � whether the representations about CP's inability to work are 
        qualified in any way (e.g., "I am able to work with certain 
        restrictions");

      � when the representations were made, the period of time to which 
        they refer, and whether CP's physical or mental condition has 
        changed since the representations were made;

      � whether CP was working during the period of time referred to as 
        a period of total disability; 

      � whether the employer suggested that CP apply for benefits;

      � whether CP asked for and was denied reasonable accommodation;

      � when the employer learned of the representations; and

      � other relevant factors, such as advances in technology or 
        changes in the employer's operations that may have occurred 
        since representations were made that may make it possible for 
        CP to perform the essential functions of the position, with or 
        without reasonable accommodation.




Enforcement Guidance: Effect of Representations Made in Applications for
Disability Benefits on the Determination of Whether a Person Is a
"Qualified Individual with a Disability" Under the Americans with
Disabilities Act of 1990 (ADA)


Introduction

      The Americans with Disabilities Act of 1990 (hereinafter ADA or
Act)1 prohibits employers from discriminating against qualified
individuals with disabilities in all aspects of employment.  To be
protected by the ADA, a person must meet the definition of the term
"qualified individual with a disability."2 A "qualified individual with a
disability" is "an individual with a disability who satisfies the
requisite skill, experience, education and other job- related requirements
of the employment position such individual holds or desires, and who, with
or without reasonable accommodation, can perform the essential functions
of such position."3

      The issue of whether a person is a "qualified individual with a
disability" arises when an individual brings an ADA claim alleging that
s/he was subjected to an adverse employment action because of his/her
disability.  For example, in many charges received by the EEOC,
individuals claim that they were not hired or were fired because of
disability even though they were able to perform the essential functions
of the position at issue.  Often, the individual has requested but been
denied a reasonable accommodation.  Frequently, the individual also has
filed for disability benefits, sometimes at the suggestion of the
employer, and has represented that s/he meets the relevant eligibility
requirements (e.g., that s/he is "totally disabled" or "unable to work"). 
In such cases, questions may arise as to whether the individual is barred
from claiming that s/he is a "qualified individual with a disability"
under the ADA.4
  
      This enforcement guidance explains why representations made in other
contexts about the ability to work are not necessarily a bar to an ADA
claim.5 In this regard, the guidance: 

      � analyzes the differences between the ADA's purposes and 
        standards and those of other statutory schemes, disability 
        benefits programs, and contracts;

      � discusses recent and significant court decisions that have 
        addressed this issue; 

      � explains why the doctrine of judicial estoppel and summary 
        judgment procedures should not be used to bar the ADA claims of 
        individuals who have applied for disability benefits;

      � delineates why public policy supports the Commission's 
        position; and

      � explains how to assess what weight, if any, to give to such 
        representations in determining whether an individual is a 
        "qualified individual with a disability" for purposes of the 
        ADA.



I. The ADA's Purposes and Standards Are Fundamentally Different from the
Purposes and Standards of Other Statutory Schemes and Contractual Rights. 

      The primary purposes underlying the ADA are the elimination of
barriers that prevent individuals with disabilities from participating in
"the economic and social mainstream of American life"6 and the provision
of equal employment and other opportunities for persons with disabilities. 
In addition, Congress enacted the ADA to provide legal remedies to
individuals who have experienced discrimination on the basis of
disability.7 Consistent with these goals, the ADA establishes specific
standards for assessing whether an individual has a disability and whether
s/he is a "qualified individual with a disability." 

      Because the ADA definitions of the terms "disability" and "qualified
individual with a disability" are tailored to the broad remedial purposes
of the Act, they differ from the definitions of the same or similar terms
used in other laws and benefits programs designed for other purposes.  The
definitions of the terms used in the Social Security Act, state workers'
compensation laws, disability insurance plans, and other disability
benefits programs are tailored to the purposes of those laws and programs. 
Therefore, representations made under those laws and programs are not
determinative of coverage under the ADA.  Although representations made in
connection with an application for disability benefits may be relevant to
such a determination, they are never an absolute bar to a finding that a
person is a "qualified individual with a disability" for purposes of the
ADA. 


      A.      Americans with Disabilities Act
                  
            1.      Purposes

      The ADA is a sweeping civil rights law designed "to provide a clear
and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities."8 It also is designed "to provide
clear, strong, consistent, enforceable standards addressing discrimination
against individuals with disabilities."9

      In enacting the ADA, Congress made clear that "the Nation's proper
goals regarding individuals with disabilities are to assure equality of
opportunity, full participation, independent living, and economic
self-sufficiency for such individuals."10 Congress found that many of the
more than 43 million Americans with disabilities "continually encounter
various forms of discrimination" and that this invidious discrimination
"persists in such critical areas as employment. . . ."11 Unlike other
discrete and insular minorities, however, individuals with disabilities
"have often had no legal recourse to redress such discrimination."12 As a
result, this discrimination and denial of equal employment opportunity
have "cost[] the United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity."13
   
      Accordingly, Congress passed the ADA to enable individuals with
disabilities to participate fully in all aspects of society, particularly
employment.  Underlying the ADA is the recognition that equal employment
opportunity is the only way that this country can accomplish its "proper
goal" of ensuring economic self- sufficiency for individuals with
disabilities.  It is this fundamental principle -- that individuals with
disabilities who want to work and are qualified to work must have an equal
opportunity to work -- that guides the Title I employment provisions of
the ADA.14

      The definition of the term "qualified individual with a disability"
reflects this principle and the broad remedial purposes of the ADA.  It
focuses on what an individual with a disability can do, rather than on
what s/he cannot do.15 In addition, reflecting the Act's focus on
individual rather than group characteristics,16 the definition requires an
individualized assessment of a person's abilities.  Moreover, the
definition looks at whether an individual with a disability is qualified
for the specific position at issue, not at whether s/he is qualified for
work in general. 


            2.      Standards

      Under the ADA, a "qualified individual with a disability" is 

      an individual with a disability17 who satisfies the requisite skill,
      experience, education and other job- related requirements of the 
      employment position such individual holds or desires, and, who, with 
      or without reasonable accommodation, can perform the essential 
      functions of such position.18

      The determination of whether an individual with a disability is
"qualified" should be made in two steps.19 The first step is to determine
if the individual has the education, training, skills, experience, and
other job-related credentials for the position.  The second step is to
determine whether the individual can perform the essential functions of
the position held or desired, with or without accommodation.20 The purpose
of this second step is to ensure that individuals with disabilities who
can perform a position's essential or fundamental functions are not denied
employment opportunities simply because they are not able to perform the
position's marginal or peripheral functions.21

      The determination of whether a person is a "qualified individual
with a disability" requires an individualized, case-by- case assessment of
the specific abilities of the person, the specific requirements of the
position that the person holds or desires, and the manner in which the
person may be able or enabled to meet those requirements.22 The issue is
whether a particular individual with a disability is qualified for a
particular position, not whether the individual or a group of individuals
with a disability is qualified for a class of positions.23

      Further, the definition of the term "qualified individual with a
disability" expressly requires consideration of whether the individual can
perform essential functions with reasonable accommodation.  The ADA
requires employers to provide reasonable accommodation to the known
physical or mental limitations of otherwise qualified individuals with
disabilities unless doing so would result in undue hardship.24 This
reasonable accommodation requirement is critical to achieving the goals of
the ADA.25

      In general, a reasonable accommodation is any change in the work
environment or in the way things are customarily done that enables an
individual with a disability to enjoy equal employment opportunities.26
Some of the most common accommodations an employer may be required to
provide are job restructuring, part-time or modified work schedules,
modifications of equipment or devices, and other similar accommodations.27

      The assessment of whether an individual with a disability is
qualified should be based on the capabilities of the individual with a
disability at the time of the employment decision.  It should not be based
on speculation that the individual may become incapacitated in the
future.28


      B.      Other Statutory Schemes and Contractual Rights

             
            1.      Social Security Act

      The Social Security Act establishes a social insurance program
designed to provide guaranteed income to individuals with disabilities
when they are found to be generally incapable of gainful employment.  Its
purpose is to provide a basic level of financial support for people who,
because of disability, cannot support themselves.  In adding disability as
a basis for benefits administered by the Social Security Administration
(SSA) in 1956, Congress recognized society's obligation to provide
assistance to people whose disabilities prevent them from achieving
economic self-sufficiency.29

      The SSA definition of the term "disability," therefore, reflects the
obligation to provide benefits to people who generally are unable to work. 
As a result, the definition focuses on what a person cannot do and on
whether s/he cannot find work in the national economy in general. 

      To receive SSA disability benefits, an individual must prove that
s/he is disabled under the Social Security Disability Insurance (SSDI) or
the Supplemental Security Income (SSI) program.30 The essential
requirement for both programs is that the claimant be unable to engage in
"any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months."31 Under the statute, a person is entitled to
disability benefits if his/her impairment is "of such severity that [s/he]
is not only unable to do [his/her] previous work but cannot, considering
[his/her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy."32

      The SSA itself, however, recognizes that an individual may be found
to be unable to engage in substantial gainful activity and yet still may
be able to work in a particular position.  Although the SSA program is
designed to provide a guaranteed income to individuals who are found to
meet SSA disability eligibility criteria, Congress has recognized the
importance of encouraging individuals with disabilities to work whenever
possible.33 Accordingly, the Social Security Act contains numerous work
incentive provisions.  For example, the SSA has a trial work period that
allows beneficiaries to work for nine months while their benefit
entitlement and payment levels remain unchanged.34 Similarly, the SSA has
an extended period of eligibility that provides individuals who return to
work with benefits in any month in which earnings fall below a statutory
level.35 Thus, even the SSA does not view a person who meets its
definition of "disability" as someone who is totally unable to work. 
      
       To determine if an individual meets the SSA definition of
"disability," the SSA uses a sequential evaluation process.36 This
five-step process requires the SSA to ask the following questions: 

      (1) Is the claimant currently engaging in "substantial gainful 
          activity"?37 (If the answer is yes, the claim is denied; if 
          the answer is no, the claim continues to the next step.)

      (2) Does the claimant have a "severe" impairment?  (If the answer 
          is no, the claim is denied; if the claimant has an impairment 
          that significantly limits his/her ability to work -- that is, 
          it is "severe" -- the claim continues to step 3.) 

      (3) Does the claimant have an impairment that is equivalent to 
          any impairment the SSA has listed as so severe that it 
          automatically precludes substantial gainful activity?  (If 
          the claimant has an impairment that is medically the 
          equivalent of a listed impairment, the claimant is presumed 
          disabled by the SSA and benefits are granted; if the claimant 
          does not have a listed impairment, the claim proceeds to step 
          4.)

      (4) Does the impairment prevent the claimant from performing 
          his/her "past relevant work"?38 (If the claimant can perform 
          his/her past relevant work, the claim is denied; if the 
          claimant cannot perform such work, the claim continues to 
          step 5.)

      (5) Does the impairment prevent the claimant from performing any 
          other type of work? (If the SSA determines that the claimant 
          is able to perform other work which exists in the national 
          economy,39 the claim is denied; if the SSA determines that 
          the claimant is unable to perform any work, considering 
          his/her age, education, and past work experience, benefits 
          are granted.)
      
       The SSA acknowledges the differences between its standards and
those of other statutory schemes.  In that regard, SSA regulations note
that a decision by any other entity about whether an individual is
disabled is based on the other entity's rules and may not be the same as
the SSA's determination, which is based on social security law.40

      The SSA definition of "disability" is inherently different from the
ADA definition of "qualified individual with a disability."  First,
whereas the ADA always requires an individualized inquiry into the ability
of a particular person to meet the requirements of a particular position,
the SSA permits general presumptions about an individual's ability to
work.  In that regard, the SSA considers some conditions to be
presumptively disabling.  If a claimant has an impairment that is
medically the equivalent of a listed impairment, then the SSA presumes
that the disorder is so severe as to prevent the claimant from doing any
substantial gainful activity, without considering his/her age, education,
and past work experience.41 Thus, an individual can have a "disability"
under the SSA definition and yet in fact still be able to work. 

        Second, in determining whether a person meets the SSA definition
of disability, the SSA looks at the customary requirements of jobs as
usually performed in the national economy without focusing on the
essential functions of a particular position.42 All tasks required to
perform the job are considered with no distinction made between
fundamental and peripheral functions.43 Thus, a person who is able to
perform the essential functions of a particular position, but not the
marginal functions, may be found to be unable to work and eligible for
disability benefits.  Accordingly, the SSA's determination that a person
is unable to engage in any substantial gainful activity in the national
economy does not mean that there is no job the person can perform.  The
person still may be able to perform the essential functions of a
particular position. 

      Third, unlike the ADA definition, the SSA definition does not
consider whether the individual can work with reasonable accommodation. 
An SSA interpretative guidance addressing the effect of the ADA on SSA's
disability determination process states,

The fact that an individual may be able to return to a past relevant job,
provided that the employer makes accommodations, is not relevant to the
issue(s) to be resolved. . . .  [H]ypothetical inquiries about whether an
employer would or could make accommodations that would allow return to a
prior job would not be appropriate.44

      Thus, the SSA may find that a person is unable to do any work which
exists in the national economy even though s/he can work with a reasonable
accommodation.45 In those instances, the person is both a person with a
"disability" under SSA and a "qualified individual with a disability"
under the ADA.  Accordingly, a person claiming to be disabled or found to
be disabled under SSA programs still may be entitled to protection under
the ADA. 
      

            2.      Workers' Compensation

      The workers' compensation definitions of "disability" reflect the
purposes of workers' compensation laws.  Those laws provide a system for
securing prompt and fair settlement of employees' claims against employers
for occupational injury and illness.46 In that regard, the laws generally
require employers to compensate employees who are injured in the course of
employment for the resulting loss of earning capacity and for medical
care.47 Thus, workers' compensation provides benefits to individuals whose
earning capacity has been reduced because of a work-related injury. 
Because of the emphasis on lost earning capacity, the workers'
compensation definitions of disability generally focus on what a person
can no longer do rather than on what s/he still is capable of doing with
or without reasonable accommodation. 

      To receive workers' compensation benefits, an employee generally
must prove that s/he has a compensable "disability" as defined by the
applicable workers' compensation statute.48 The term "disability" in this
context most commonly means loss or reduction of earning power that
results from a work-related injury.49

      Some statutes, however, do not define "disability" in terms of lost
earning capacity.  Instead, under these statutes, an injured worker has a
"disability" if his/her physical efficiency has been substantially
reduced, or if s/he is unable to perform the same work with the same ease
as before the injury or is unable to do heavy work that s/he could do
before the injury.50 Under these statutes, the worker has a "disability"
even if s/he is employed at the same work and at the same wages as before
the injury. 

      Although workers' compensation laws vary from state to state, the
typical statute ordinarily provides the following four classifications of
disability, determined by duration (i.e., permanent or temporary) and
severity or extent (i.e., partial or total): temporary partial, temporary
total, permanent partial, and permanent total.51 Generally, a disability
is partial rather than total where the claimant is still capable of
gainful employment, even though the disability is found to prevent the
claimant from returning to his/her former employment.  Conversely, a
worker generally is considered "totally disabled" when the injury is found
to render the worker temporarily or permanently unable to do any kind of
work for which there is a reasonably stable employment market.52

      Unlike the ADA, which always requires an individualized inquiry into
the ability of a particular person to meet the requirements of a
particular position, some workers' compensation statutes presume that some
conditions are so severe as to prevent the claimant from doing any kind of
work.  In such instances, a claimant does not have to make any
representations about ability to work and need not show a loss of earning
capacity to prove permanent total disability.  For example, under some
workers' compensation statutes, a person who has lost vision in both eyes
or has lost both arms or legs may have a "permanent total disability" and
be deemed to be unable to work.53 Such a person, however, clearly can
perform the essential functions of many positions with or without
reasonable accommodation. 

      Moreover, unlike the ADA definition of "qualified individual with a
disability," the workers' compensation definitions of "disability" do not
distinguish between marginal and essential functions and do not consider
whether an individual can work with reasonable accommodation.  In many
workers' compensation cases, a person has a "total disability" when s/he
is unable to do certain tasks, even if those tasks are marginal functions
or if s/he could perform them with reasonable accommodation.  Thus, a
person may be "totally disabled" for workers' compensation purposes and
yet still be able to perform a position's essential functions with or
without reasonable accommodation. 

      Similarly, a person can receive workers' compensation benefits for a
temporary total disability from which she is expected to recover if,
during the time of incapacitation, s/he is unable to perform his/her
duties in the occupation in which s/he was employed at the time of
injury.54 The person is found to have a "temporary total disability" even
if the duties s/he cannot perform are marginal functions or s/he could
perform duties with reasonable accommodation. 

      Further, some statutes permit a finding of "total disability" where
a person can work but the work that s/he can do is of such limited
availability that a reasonably stable and continuous market for such labor
does not exist.55 Thus, a determination under a workers' compensation
statute that a person cannot do any kind of work for which a reasonably
stable employment market exists, and therefore is totally disabled, does
not necessarily mean that there is no job that the person can perform. 
Accordingly, an individual receiving workers' compensation benefits still
may be entitled to protection under the ADA. 


            3. Disability Insurance Plans

      Many employers offer disability insurance plans to their employees
as benefits of employment.56 Receipt of benefits pursuant to such plans is
a contractual, rather than a statutory, right.  The purpose of disability
insurance plans is to provide partial wage replacement when an employee
becomes unable to work as a result of illness, injury, or disease.57 As a
result, the plans' definitions of "disability" focus on individuals'
inabilities rather than abilities. 

      To receive disability benefits, an individual must meet the
eligibility requirements outlined by the terms of the contract (i.e.,
insurance policy).  Disability insurance plans usually require that an
individual have been employed for a set period and that s/he be
"disabled."  Disability benefits often are paid on a "residual" basis,
meaning that they are payable in proportion to the earnings lost as a
result of the disability.  Benefits may be limited to "total disability,"
meaning generally that the insured is unable to perform any of the duties
of his/her own occupation or any other type of remunerative work, or may
be payable for "partial disability," where the insured is unable to
perform one or more functions of his/her regular job. 

      The definition of "disability" depends on what the contract states
and varies from contract to contract.  Generally, "disability" is defined
as the incapacity to perform one or more duties of the insured's regular
occupation. 

      When assessing an individual's ability to perform job duties,
disability insurance plans frequently do not distinguish between essential
and marginal functions.  For example, under one typical contract, an
employee may be considered "totally disabled" if s/he is "unable to
perform the duties of the job [s/he] held when [s/he] became disabled or
any comparable job within [the company]."58 Under this definition, an
individual who could perform the essential, but not all the marginal,
functions of a position would be considered "totally disabled."  Some
plans, however, may acknowledge the relative importance of different
duties.  Thus, one plan defined "total disability" as the inability of an
individual "to perform the material and substantial duties of his or her
own job during the Benefit Waiting Period plus the next 24 months . . .
due to Injury or Sickness which requires regular care of a Physician."59
Whether a contract's definition of "disability" distinguishes between
essential and marginal functions is a key consideration when comparing a
plan's definition of "disability" to the ADA definition of "qualified
individual with a disability." 

      Another important consideration is whether the contract's definition
of "disability" takes into account whether an individual can work with
reasonable accommodation.  Frequently, the definition makes no allowance
for an individual's ability to work with reasonable accommodation.60 In
some cases, the definition expressly eliminates consideration of
reasonable accommodations, such as modified or part-time work schedules.61
For example, one disability plan defined a "totally disabled" individual
as an employee "who is unable to perform the material duties of his/her
job for the entire regularly scheduled work week as the result of illness
or injury and requires the ongoing care of a physician. . . ."62 Under
such a plan, an individual with a disability who is able to work only part
time may be both "totally disabled" under the plan and a "qualified
individual with a disability" under the ADA.  Accordingly, an individual
receiving disability insurance benefits still may be entitled to
protection under the ADA. 


      C.      Analysis

      Several important elements distinguish the definition of the term
"qualified individual with a disability" under the ADA from the
definitions of "disability" under other statutory schemes and contracts. 
Because of these inherent differences, an individual may be able to meet
the eligibility requirements for receipt of disability benefits and still
be a "qualified individual with a disability" for ADA purposes.  That is,
an individual may be "unable to work" for the purposes of a disability
benefits program and yet still be able to perform the essential functions
of a particular position with or without reasonable accommodation.63

      An individual's representations in connection with an application
for disability benefits, therefore, do not preclude a determination that
the individual is a "qualified individual with a disability."  Although
the representations that an individual has made in support of his/her
application for benefits may be relevant to such a determination, they are
never an absolute bar to a finding that the individual is a "qualified
individual with a disability." 

            
            1. The ADA Definition of "Qualified Individual with a
Disability" Always Requires an Individualized Assessment of the Particular
Individual and the Particular Position; Other Definitions Permit
Generalized Inquiries and Presumptions. 

      Unlike the definitions under other statutory and contractual
schemes, which permit generalized inquiries, the definition of "qualified
individual with a disability" under the ADA always requires an
individualized inquiry into the ability of a particular person to meet the
requirements of a particular position.64 The ADA inquiry into whether a
person is a "qualified individual with a disability" looks at whether an
individual can perform the essential functions of a particular position,
not whether s/he is able to work in general.  Further, unlike the SSA and
other statutory and contractual schemes, the ADA never presumes that some
impairments are so severe as to prevent an individual from working.  To
the contrary, the ADA presumes that individuals with disabilities can
work.65

      The Seventh Circuit recognized this obvious and significant
distinction in Overton v. Reilly, 977 F.2d 1190, 2 AD Cas. (BNA) 254 (7th
Cir. 1992), when it ruled that a person could have a disability for SSA
purposes and still be a "qualified individual with a disability" for
Rehabilitation Act purposes.  The SSA had granted benefits to the Overton
plaintiff, who had an emotional disability, on a trial basis shortly after
he began working for the defendant.  The court made clear that the
plaintiff's Rehabilitation Act claim of discriminatory discharge was not
precluded by the SSA's decision to award him disability benefits. 

      In refusing to find that the plaintiff's receipt of benefits
precluded his claim, the Seventh Circuit relied heavily on the fact that
the SSA definition of disability permits generalized presumptions.  First,
the court noted that "the SSA may award disability benefits on a finding
that the claimant meets the criteria for a listed disability, without
inquiring into his ability to find work within the economy."  977 F.2d at
1196, 2 AD Cas. at 260.  This, the court found, was the basis for the
plaintiff's receipt of benefits.  In addition, the Seventh Circuit
emphasized that, "even if the SSA had looked into [the plaintiff's]
ability to find work in the national economy, its inquiry would
necessarily have been generalized."  Id.  Such a general inquiry, the
court noted, may determine that a claimant is unlikely to find a job, but
that does not mean that there is no work the claimant can do.  Thus, a
determination of disability for SSA purposes "can hardly be construed as a
judgment that [the plaintiff] could not do [the particular job at issue]." 
Id. 

      Rather than be swayed by generalized presumptions, the Seventh
Circuit looked specifically at the plaintiff's particular situation.  In
so doing, the circuit court found that the plaintiff's actual, adequate
performance of work for the defendant refuted the district court's
assertion that the plaintiff had not offered evidence that he could
perform substantial gainful activity.  The Seventh Circuit therefore
concluded that the plaintiff had presented a genuine issue of material
fact whether he was a "qualified individual with a disability."  Id.  By
refusing to bar the plaintiff's claim of disability discrimination, the
Seventh Circuit recognized that the individualized inquiry mandated by the
definition of "qualified individual with a disability" differs
significantly from the generalized inquiry permitted under the SSA
definition of "disability."  Id.;  see also Smith v. Dovenmuehle Mortgage,
Inc., 859 F. Supp. 1138, 1141, 4 AD Cas. (BNA) 132, 135 (N.D. Ill. 1994)
(holding that the SSA's decision to award disability benefits, based on
its determination that the plaintiff could not find work in the economy,
did not mean that he was not a "qualified individual with a disability"
under the ADA, particularly since he found another position after being
terminated by the defendant). 

      Similarly, a district court in the Second Circuit recognized the
fundamental differences between the ADA's individualized approach and the
SSA assessment.  In refusing to grant the defendant's motion for summary
judgment, the court in Mohamed v. Marriott, 1996 WL 631687 (S.D.N.Y. Oct.
30, 1996), emphasized that the SSA awarded the plaintiff benefits based on
a "listed disability" (profound deafness) and did not inquire into his
capability to work.  Id. at *6.  In that regard, the court noted that the
plaintiff did not make any specific representations about his ability to
perform the essential functions of the job from which he was terminated
and, in fact, represented to the SSA that he continued to seek work. Id. 
Like the Seventh Circuit, the Mohamed court refused to be swayed by
generalized presumptions and looked at the plaintiff's particular
situation. Noting that the plaintiff consistently had received positive
evaluations and had no record of disciplinary actions prior to his
termination, the court found that there was "ample evidence" that the
plaintiff was capable of performing the essential functions of the job
from which he was discharged. Id. at *5.  The court further concluded that
barring the plaintiff's ADA claim based on the SSA's determination that he
was eligible for benefits "would undermine the legislative policy of
providing [persons with disabilities] with both protection against
destitution and a genuine opportunity to participate fully in the job
market."  Id. at *7. 

      The Third Circuit, in McNemar v. The Disney Store, Inc., 91 F.3d
610, 5 AD Cas.(BNA) 1227 (3d Cir. 1996), however, ignored this fundamental
difference between the ADA and SSA and failed to conduct the
individualized inquiry mandated by the ADA definition of "qualified
individual with a disability."  The McNemar plaintiff, who had AIDS,
applied for and received SSA and state disability benefits after he was
fired from his position of assistant manager.  He certified on his
benefits application that he had become unable to work approximately five
weeks before his discharge.  In affirming the district court's grant of
summary judgment for the defendant, the Third Circuit found that it was
irrelevant that AIDS is a presumptive disability that automatically
renders a person "unable to work" for purposes of SSA benefits, since the
plaintiff claimed that he was physically unable to work.  The court also
rejected the argument that the ADA's standards and purposes are
fundamentally different from the SSA's.  In reaching these conclusions,
the court overlooked the fact that "unable to work" for SSA purposes does
not mean unable to perform the essential functions of a particular
position with or without reasonable accommodation. 

      The court's failure to acknowledge these inherent differences
between the ADA definition of "qualified individual with a disability" and
the SSA definition of "disability" is especially troubling here, where it
is undisputed that the plaintiff was performing the essential functions of
his assistant manager's position at the time of his discharge.  It
therefore also should have been undisputed that the plaintiff met the ADA
definition of "qualified individual with a disability" at the time of the
alleged discrimination.  See Daffron v. McDonnell Douglas Corp., 874 S.W.
2d 482, 486, 3 AD Cas. (BNA) 183, 187 (Mo. Ct. App. 1994)(based on the
plaintiff's assertions that he was capable of performing his job duties
and was, in fact, performing those duties until the day he was laid off,
the court found that there was evidence that could establish that the
plaintiff was capable of performing his duties, even though he filed an
application for disability benefits). 

        Moreover, the McNemar defendant's asserted reason for the
discharge was unrelated to the issues raised by the benefits application. 
At the time of the discharge, the defendant maintained that the plaintiff
was fired for theft; the defendant did not claim that the plaintiff's
disability prevented the plaintiff from performing the essential functions
of his position with or without reasonable accommodation.  McNemar, 91
F.3d at 614, 5 AD Cas. at 1229.  In fact, the defendant consistently
disavowed any reliance on the plaintiff's disability.  Since the plaintiff
applied for disability benefits after his termination, the defendant
obviously was unaware of the application when it decided to terminate him. 
Accordingly, under these circumstances, the defendant should not have been
permitted to use benefits information acquired after the adverse action to
challenge whether the plaintiff was a "qualified individual with a
disability."  Cf. McKennon v. Nashville Banner Pub. Co., 115 S. Ct. 879,
885 (1995)(employer liability is determined solely by information
available to employer "'at the time of the decision'").  For all these
reasons, the Commission believes that McNemar was wrongly decided.66

      Other courts have recognized that the ADA's focus on a particular
individual's ability to perform the essential functions of a particular
position is different from disability benefits programs' definitions of
"disability."  For example, in Pressman v. Brigham Medical Group
Foundation, Inc., 919 F. Supp. 516, 5 AD Cas. (BNA) 609 (D. Mass. 1996),
the court concluded that a physician who consistently claimed that he was
"totally disabled" under his private disability insurance plan still could
be a "qualified individual with a disability" with respect to the
particular internist position for which he had applied.  In that case, the
plaintiff, who had a heart disability, maintained that he was capable of
performing the essential functions of the internist position even though
he had a "total disability" for purposes of the insurance plan.  919 F.
Supp. at 523, 5 AD Cas. at 613.  According to the plaintiff, the plan
permitted him to receive total disability benefits as long as there were
restrictions on his ability to practice his sub-specialty of cardiology. 
919 F. Supp. at 522, 5 AD Cas. at 613.  Since there were genuine issues of
material fact whether the definition of "total disability" under the
plaintiff's disability plan meant that he generally was unable to practice
medicine, or whether it meant that he specifically was unable "to conduct
a solo practice with emergency room duties," the court denied the
defendant's motion for summary judgment.  Id. 

      As Pressman, Mohamed, Smith, and Overton illustrate, the definitions
under the SSA and other statutory and contractual schemes do not focus on
whether a particular person can meet the requirements of a particular
position.  As a result, an individual can both meet the requirements for
disability benefits and be a "qualified individual with a disability" for
purposes of the ADA. 



            2. The ADA Definition of "Qualified Individual with a
Disability" Requires Consideration of Reasonable Accommodation; Other
Definitions Do Not Consider Whether an Individual Can Work with Reasonable
Accommodation. 

      Assessing whether a person can work with reasonable accommodation is
a key part of determining if the person meets the ADA definition of the
term "qualified individual with a disability."  Unlike the ADA definition,
however, the definitions of disability under the SSA, workers'
compensation laws, and disability insurance plans do not consider whether
a person can work with reasonable accommodation.67 Thus, a person may be
deemed unable to work and be awarded disability benefits even though s/he
can perform the essential functions of a particular position with
reasonable accommodation. 

      Courts have recognized this important difference between the ADA
definition of "qualified individual with a disability" and other
definitions of "disability" or "totally disabled."  For example, in
D'Aprile v. Fleet Services Corp., 92 F.3d 1 (1st Cir. 1996), the First
Circuit reversed a district court's grant of summary judgment where the
plaintiff had sought disability benefits after the defendant refused her
request to work on a part-time basis.68 In D'Aprile, the plaintiff had
unofficially worked part time (through the use of accrued vacation leave)
for two months after the defendant denied her request to be converted to a
part- time status.  After the plaintiff exhausted her vacation time, she
submitted a doctor's note "stating that she was 'unable to work at this
time and should be placed on disability.'"  Id. at 3.  The plaintiff then
received disability benefits under an insurance plan that defined a
"totally disabled" individual as an employee "who is unable to perform the
material duties of his/her job for the entire regularly scheduled work
week as the result of injury orillness . . . ."  Id. at 4-5. 

      The First Circuit found that the plaintiff's contention that she was
unable to work because her employer had refused her request for a modified
schedule was "entirely consistent with her claim to have been 'totally
disabled' within the meaning of the policy."  Id. at 5.  Noting that the
plaintiff asserted that she could work on a part-time basis and that she
in fact had worked part time, the court found that there existed a genuine
issue of material fact whether the plaintiff could have worked with
reasonable accommodation.  In so doing, the court expressly ruled that the
plaintiff's application for benefits "sheds no light on how [the
plaintiff] would have fared had the accommodation been made."  Id. In
addition, the D'Aprile court explicitly stated that August v. Offices
Unlimited, Inc., 981 F.2d 576, 2 AD Cas. (BNA) 401 (1st Cir. 1992), does
not stand for the broad proposition that a plaintiff who claims that s/he
is "totally disabled" within the context of applying for disability
benefits is barred from bringing an ADA claim but, rather, "stands for the
narrow proposition that the plaintiff's ability to work with reasonable
accommodation" is key in determining whether a person meets the ADA
definition of "qualified individual with a disability."  Id. at 3.69 The
Commission believes that D'Aprile is correct in recognizing that an
individual can meet a disability benefits program definition of "totally
disabled" and still be able to perform the essential functions of a
particular position with reasonable accommodation. 
 
      Similarly, in Anzalone v. Allstate Ins. Co., 5 AD Cas. (BNA) 223
(E.D. La. 1995), the court correctly recognized the differences between
the ADA definition of "qualified individual with a disability" and a
disability insurance plan's definition of "total disability" in refusing
to grant defendant's motion for summary judgment.  The plaintiff in
Anzalone applied for and received LTD benefits after the defendant had
refused his request to work at home.  Noting that the plaintiff had
consistently stated that he could perform the essential functions of his
claims adjuster position with certain modifications, the court found that
his receipt of disability benefits did not bar his ADA claim.  According
to the court, the plaintiff's receipt of benefits was relevant -- but not
dispositive -- evidence of whether the plaintiff could perform essential
functions with or without reasonable accommodation.  Anzalone, 5 AD Cas.
at 225.70 See also Ward v. Westvaco Corp., 859 F. Supp. 608, 615, 3 AD
Cas. (BNA) 739, 745 (D. Mass. 1994) (in denying the employer's motion for
summary judgment, the court found that there was a genuine issue of
material fact whether the plaintiff would have been able to perform his
job duties with reasonable accommodation); Patel v. Everett Industries,
No. 88-BEM-0451 (Mass. Comm'n Against Discrimination Sept. 18,
1996)(injured employee who received workers' compensation benefits was not
precluded from proving that she was a "qualified individual with a
disability" under state law where she did not claim that she was disabled
from all work but only that she could not perform the heavy tasks to which
she was assigned).71

      As Patel, Ward, Anzalone, and D'Aprile demonstrate, an individual
can meet the eligibility requirements for disability benefits and still be
able to perform the essential functions of particular positions with
reasonable accommodation. 



II. Because of the Fundamental Differences Between the ADA and Other
Statutory and Contractual Disability Benefits Programs, Representations
Made in Connection with an Application for Benefits May Be Relevant to --
but Are Never Determinative of -- Whether a Person Is a "Qualified
Individual with a Disability." 


      A. Representations Made in Connection with an Application for
Disability Benefits Are Not Determinative of Whether a Person Is a
"Qualified Individual with a Disability." 

       Because of the inherent differences in the definitions of the term
"qualified individual with a disability" under the ADA and the terms used
in the SSA, state workers' compensation laws, disability insurance plans,
and other disability benefits programs, and because the ADA considers
whether a person can work with reasonable accommodation, an individual can
meet both the eligibility requirements for receipt of disability benefits
and the definition of a "qualified individual with a disability" for ADA
purposes.  Thus, a person's representations that s/he is "disabled" or
"totally disabled" for purposes of disability benefits are not necessarily
inconsistent with his/her representations that s/he is a "qualified
individual with a disability."72 Accordingly, they should never be an
automatic bar to an ADA claim.  Thus, for example, the doctrine of
judicial estoppel should not be used to bar the ADA claim of an individual
who has applied for disability benefits.  Similarly, granting summary
judgment to bar such claims also is inappropriate.73

            
            1.      Judicial Estoppel
              
      The common law doctrine of judicial estoppel prevents a party who
has successfully maintained a position in one judicial proceeding from
asserting a contrary position in another proceeding.  It is a "principle
of fairness" designed to preserve the integrity of the judicial process. 
18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE � 4477
at, 779-88 (1981).  "Judicial estoppel applies where a party tries to
contradict in a second lawsuit his sworn statement in previous
litigation."  Grant v. Lone Star Co., 21 F.3d 649, 651 n.2 (5th Cir.
1994).  The doctrine protects the integrity of the judicial process by
"minimiz[ing] the danger of a party contradicting a court's determination
based on the party's prior position," thereby resulting in "inconsistent
court determinations."  United States ex. rel. Am. Bank v. C.I.T. Constr.
Inc., 944 F.2d 253, 258 (5th Cir. 1991).74

      As explained above, an individual who asserts that s/he is both
"totally disabled" and a "qualified individual with a disability" has not
necessarily made inconsistent representations.  Accordingly, the doctrine
of judicial estoppel should not be used to prevent the individual from
raising an ADA claim.  Thus, courts that have recognized the inherent
differences between the definitions of "qualified individual with a
disability" and "totally disabled" or "disabled" have refused to apply
this doctrine to bar claims of disability discrimination.  See, e.g.,
Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 4 AD Cas. (BNA) 132
(N.D. Ill. 1994) (judicial estoppel inappropriate where genuine issue of
material fact whether position that plaintiff with AIDS took before SSA is
inconsistent with assertion that plaintiff is a "qualified individual with
a disability"); Mohamed v. Marriott, 1996 WL 631687, at *6 (S.D.N.Y. Oct.
30, 1996)("it would be inappropriate to invoke the fact-sensitive and
limited doctrine of judicial estoppel to erect a per se bar to ADA
protection for individuals who have also applied for and/or received [SSA]
benefits"). 

      Generally, the doctrine of judicial estoppel applies only when an
individual took his/her earlier position in a prior judicial proceeding. 
See, e.g., Shell Oil Co. v. Trailer & Truck Repair Co., 828 F.2d 205,
209-210 (3d Cir. 1987); Smith v. Travelers Ins. Co., 438 F.2d 373, 377
(6th Cir.), cert. denied, 404 U.S. 832 (1971). However, in many cases, the
individual has not made his/her representations before a judicial forum. 
Accordingly, courts that have recognized the significant differences in
judicial proceedings and administrative determinations have declined to
apply judicial estoppel to bar claims of disability discrimination. See,
e.g., Mohamed v. Marriott, 1996 WL 631687, at *7 (S.D.N.Y. Oct. 30,
1996)("[t]he streamlined procedures giving rise to the SSA's determination
of disability should, at a minimum, give pause to a court considering
barring the courtroom door to a plaintiff alleging employment
discrimination"); see also EEOC v. MTS Corp. d/b/a Supercuts, No. 94-1473
LH/WWD (D.N.M. July 26, 1996)(the court noted that, even if the Tenth
Circuit recognized judicial estoppel, it would not apply the doctrine to
the facts of this case where the plaintiff completed his SSA application
over the telephone).75

      Public policy considerations also preclude the application of
judicial estoppel in the types of cases to which this guidance applies. 
See Marvello v. Chemical Bank, 923 F. Supp. 487, 491-92, 5 AD Cas. (BNA)
1400, 1403 (S.D.N.Y. 1996)(applying judicial estoppel to bar the ADA claim
of individuals who have applied for disability benefits could undermine
the policy goals of the ADA without advancing the separate goals of the
Social Security Act); Mohamed v. Marriott, 1996 WL 531687, at *7 (S.D.N.Y.
Oct. 30, 1996)(the ADA's overriding purpose of encouraging individuals
with disabilities to seek employment would be thwarted by the application
of judicial estoppel to the facts of this case). Because "[j]udicial
estoppel is a technical rule designed to meet the needs of broad public
policy," Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 175
(5th Cir. 1973), courts have been reluctant to apply the doctrine where
doing so would undermine the public policy goals of a federal statute. 
See City of Alma v. United States, 744 F. Supp. 1546, 1556 (S.D. Ga.
1990).  In fact, some courts have declined to apply the doctrine where
barring the plaintiff's suit "implicates not only the relevant interests
of the litigating parties, but also the public's interest in promoting the
underlying statute."  Matter of Morristown & Erie R.R. Co., 677 F.2d 360,
368 n.10 (3d Cir. 1982); cf. McKennon v. Nashville Banner Co., 115 S. Ct.
879, 885 (1995)(the Supreme Court noted that "the broader objectives of
[the anti-discrimination statutes] are furthered when even a single
employee establishes that an employer has discriminated against him or
her"). 


            2.      Summary Judgment

      The inherent differences between the definitions of the term
"qualified individual with a disability" under the ADA and the terms used
in other statutory and contractual schemes also make summary judgment
inappropriate.  Granting summary judgment is only proper when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.  Fed. R. Civ. P. 56(c).  In deciding whether
a factual dispute is "genuine," the court must determine whether the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).  A court must review the facts in the light most favorable to the
nonmoving party and accord the nonmoving party the benefit of all
reasonable inferences to be drawn from the evidence.  See, e.g., United
States v. O'Block, 788 F.2d 1433 (10th Cir. 1986)(stating that "[t]he
court must consider factual inferences tending to show triable issues in
the light most favorable to the existence of those issues").  The court's
function is not to weigh the evidence but, rather, merely to determine
whether there is sufficient evidence favoring the nonmoving party for a
finder of fact to return a verdict in that party's favor.  Anderson, 477
U.S. at 249.  Essentially, the court performs the threshold inquiry of
determining whether a trial is necessary.  Id. at 250. 

      As discussed in detail in this guidance, because the ADA's purposes
and standards are fundamentally different from those of disability
benefits programs, an individual's representations made in connection with
an application for disability benefits do not mean that the individual
cannot perform the essential functions of the position held or desired
with or without reasonable accommodation.  Accordingly, the application
for disability benefits does not mean that there does not exist a genuine
issue of material fact concerning whether a person is a "qualified
individual with a disability."  Thus, for example, in Overton, the court
held that summary judgment was inappropriate.  Overton, 977 F.2d at 1194. 
See also Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138, 4 AD Cas.
(BNA) 132 (N.D. Ill. 1994) (genuine issue of material fact whether
position that plaintiff with AIDS took before SSA is inconsistent with
assertion that plaintiff is a "qualified individual with a disability");
Oswald v. Larouche Chemicals, Inc., 894 F. Supp. 988 (E.D. La.
1995)(genuine issue of material fact whether the doctor, whose conclusion
that the plaintiff could not perform any jobs formed the basis of the
grant of disability retirement benefits to the plaintiff, properly
assessed the plaintiff's ability to perform the essential functions of the
modified position); Kupperschmidt v. Runyon, 827 F. Supp. 570, 3 AD Cas.
(BNA) 52 (E.D. Wis. 1993)(genuine issue of material fact whether
plaintiff, who received SSA and federal employee retirement system
disability benefits, was a "qualified individual with a disability" for
purposes of the Rehabilitation Act); EEOC v. MTS Corp. d/b/a Supercuts,
No. 94-1473 LH/WWD (D.N.M. July 26, 1996)(genuine issue of material fact
regarding when plaintiff with AIDS, who applied for SSA disability
benefits, became incapable of performing the essential functions of his
position). 


      B. A Determination of What, if Any, Weight to Give to
Representations Made in Support of Applications for Disability Benefits
Depends on the Context and Timing of the Representations. 

      In assessing the extent to which representations made in connection
with an application for disability benefits are relevant to a
determination of whether a person is a "qualified individual with a
disability" under the ADA, it is necessary to look at the context and
timing of the representations.  Often, applications for disability
benefits do not use precise terminology and do not clearly define terms
such as "total disability."76 In addition, these forms or applications may
require an individual merely to check off boxes and not allow him/her to
fully describe his/her disabling condition or may be taken over the
telephone.  Even during depositions or hearings, questions concerning an
individual's disability and/or ability to work are not always posed with
precision.  Accordingly, courts declining to dismiss the ADA claims of
individuals who have applied for disability benefits have looked behind
the "labels" or terms used in various forums and have considered other
factors (e.g., the content of the representations, who made them, the
purpose for which they were made, when the representations were made, the
period of time to which they refer, and any changes in the individual's
physical or mental condition between the time of his/her application for
benefits and the time of the adverse employment action at issue) in
determining that a genuine issue of material fact exists as to whether an
individual is a "qualified individual with a disability" for purposes of
the ADA. 

            
            1.      Context

      Representations on a benefits application should not be viewed in a
vacuum but, rather, considered in the context of all other relevant
documents (e.g., disability reports, doctors' reports, depositions).  In
addition, the circumstances under which the individual applied for
benefits should be considered (e.g., did the individual apply for benefits
because s/he could not work because the employer denied reasonable
accommodation?; did the individual maintain, at the time of application
for benefits, that s/he could perform the essential functions of the
position in question with accommodation?; did the individual apply for
benefits based on a doctor's assessment that s/he was totally disabled?;
did the individual apply for benefits at the suggestion of the
employer?;77 did the individual apply for benefits because s/he believed
s/he was unable to work because of discrimination?). 

      For example, in Anzalone v. Allstate Ins. Co., 5 AD Cas. (BNA) 223
(E.D. La. 1995), the plaintiff applied for disability benefits only after
the defendant refused to allow him to return to work with certain
restrictions.  The court reviewed the context in which the plaintiff's
statements were made and found that he did not unambiguously characterize
himself as totally and completely disabled; rather, the plaintiff
consistently took the position that he was capable of working under
certain restrictions (i.e., with reasonable accommodation). Anzalone, 5 AD
Cas. at 225. Similarly, in Ward v. Westvaco Corp., 859 F. Supp. 608,
614-15, 3 AD Cas. (BNA) 738, 744-45 (D. Mass. 1994), although the
plaintiff applied for disability retirement benefits under the SSA and his
company's disability insurance plan, stating on the applications that he
was "totally and permanently disabled," he explained that he would have
been able to perform his job had his employer made reasonable
accommodations.78 The court held that the plaintiff's testimony, in the
context of his ADA claim, was not inherently inconsistent with his former
statements made in the course of obtaining disability benefits. 

       In addition, in some cases, the plaintiff applies for disability
benefits based on a doctor's assessment that s/he is disabled, although
the plaintiff believes that s/he can still work with reasonable
accommodation.  Doctors, however, can be wrong in assessing a person's
condition and/or ability to work.  For example, in Oswald v. Larouche
Chemicals, Inc., 894 F. Supp. 988 (E.D. La. 1995), the plaintiff, as well
as his physical therapist, believed that he could perform the essential
functions of a modified position, but the defendant's medical review
officer determined that he could not.  The court held that, because the
employer's medical review officer's conclusion that the plaintiff could
not perform any available jobs was the basis for the grant of disability
benefits, there was a genuine issue of material fact whether the medical
review officer properly assessed the plaintiff's abilities.  Oswald, 894
F. Supp. at 996.  Accordingly, it was possible that the plaintiff was a
"qualified individual with a disability" capable of performing the
essential functions of one or more positions with accommodation despite
the medical review officer's determination that he was totally disabled. 

      In other cases, the plaintiff applies for disability benefits
because the employer's alleged discriminatory conduct causes him/her to be
unable to work or to believe that s/he cannot work because of
discrimination.  For example, in EEOC v. MTS Corp. d/b/a Supercuts, No.
94-1473 LH/WWD (D.N.M. July 26, 1996), after other employees became
concerned about working with the plaintiff who had AIDS, the defendant
excluded the plaintiff from a meeting at which his condition was
discussed, denied his request to return to his "home base" salon, refused
to pay his travel expenses to an annual company convention, and, after
terminating him, informed him that he was no longer permitted on the
premises.  The defendant moved for summary judgment on the plaintiff's ADA
claim, arguing that he was not a "qualified individual with a disability"
because he applied for and received SSA benefits.  In declining to grant
the defendant's motion, the court noted that the plaintiff had completed
"the application over the phone, outside of judicial machinery, without
the benefit of counsel, and arguably under a great deal of emotional
distress." MTS Corp. d/b/a Supercuts, No. 94-1473 LH/WWD at 2.  Moreover,
crediting the EEOC's version of the facts, the court noted that the
defendants had forced the plaintiff "into the unenviable position of being
unemployed . . . and emotionally devastated by their discriminatory
conduct." Id. 

      Similarly, in EEOC v. AIC Security, 820 F. Supp. 1060, 2 AD Cas.
(BNA) 561 (N.D. Ill. 1993), the plaintiff, who had cancer, maintained that
he was qualified to perform the essential functions of the position from
which he was terminated. The plaintiff's doctor also agreed that the
plaintiff still could perform his job and explained that the information
he supplied to the SSA, in support of the plaintiff's application for
disability benefits, "was premised on the fact that [the plaintiff] had
been fired from his job and that he should be able to get some
compensation because no one [was] going to hire him." AIC Security, 820 F.
Supp. at 1066-67, 2 AD Cas. at 567; see also Mohamed v. Marriott, 1996 WL
631687, at *2 (S.D.N.Y. Oct. 30, 1996)(in response to a question on the
SSA application requesting an explanation of how his condition prevented
him from working, the plaintiff, who was deaf, stated that he had tried to
get another job but had been "frustrated" any place he looked because
there were not "enough jobs open"). 

            
            2.      Timing

      It is possible that an individual can be "totally disabled" at one
point and can later be able to return to work or become totally disabled
after a period of being able to work.  It is therefore necessary to review
what the person said about his/her condition at the time of his/her
application for disability benefits and what s/he maintained his/her
condition was at the time of the alleged discrimination (i.e., was the
condition at time to which the application refers different from condition
at time of alleged discrimination?).79
      
      For example, in Lundstedt v. City of Miami, 5 AD Cas. (BNA) 568
(S.D. Fla. 1995), the plaintiff applied for and was granted disability
retirement benefits in 1980, based on his work-related accident in 1978
and subsequent related physical problems.  The plaintiff also began
receiving workers' compensation benefits in 1982 and received a lump sum
payment in 1988 based on his total permanent disability.  In 1992, the
plaintiff requested to be reinstated to his former firefighter position,
but the defendant denied his request.80 In refusing to grant the
defendant's motion for summary judgment with respect to the plaintiff's
ADA claim, the court held that it was "perfectly consistent for
[p]laintiff to assert that he was disabled in the past, but after time he
became rehabilitated and is now able to return to work."  Lundstedt, 5 AD
Cas. at 577-78. 

      Similarly, in Smith v. Dovenmuehle Mortgage Co., 859 F. Supp. 1138,
4 AD Cas. (BNA) 132 (N.D. Ill. 1994), the plaintiff, who had AIDS, claimed
that, about one month after his discharge, he improved enough to perform
the functions of his position (although he was receiving SSA benefits). 
The court found that, because the plaintiff's condition had improved, his
position with respect to his ADA claim was not inconsistent with his
position before the SSA.  Smith, 859 F. Supp. at 1142, 4 AD Cas. at 136. 


      In addition, in Lawrence v. United States I.C.C., 629 F. Supp. 819
(E.D. Pa. 1985), the plaintiff completed a disability retirement
application, stating that he was "totally disabled" and "unable to carry
out the vigorous activity required by [his] position"; later, he filed an
ADA claim alleging that he was currently able to work.  Since 22 months
had lapsed between the plaintiff's application for SSA benefits and the
filing of his ADA claim, the court reasoned that the plaintiff's claim
that he was now able to work did not contradict his position at the time
he applied for disability benefits. Lawrence, 629 F. Supp. at 822.81


                      
III. Public Policy Supports the Conclusion that Representations Made in
Connection with an Application for Disability Benefits Are Never an
Absolute Bar to an ADA Claim. 


      A. Permitting Individuals to Go Forward with Their ADA Claims Is
Critical to the ADA's Goal of Eradicating Discrimination Against
Individuals with Disabilities. 

      The ADA's essential goal is "to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals
with disabilities."82 Recognizing that individuals who have experienced
discrimination on the basis of a disability "have often had no legal
recourse to redress such discrimination,"83 Congress enacted the ADA to
provide legal remedies for the pervasive discrimination that "persists in
such critical areas as employment . . . ."84 Private lawsuits, therefore,
play a critical role in the enforcement of the ADA.85

      An individual who brings an employment discrimination case "acts not
only to vindicate his or her personal interests in being made whole, but
also acts as a 'private attorney general' to enforce the paramount public
interest in eradicating invidious discrimination."  Mardell v.
Harleysville Life Ins. Co., 31 F.3d 1221, 1235 (3d Cir. 1994), vacated,
115 S. Ct. 1397 (1995), modified on other grounds, 65 F.3d 1072 (3d Cir.
1995).  Accordingly, when the EEOC acts on allegations of discrimination,
at the behest of and for the benefit of specific individuals, it also acts
to vindicate the public interest in preventing employment discrimination. 
Barring individuals who apply for disability benefits from pursuing ADA
claims would impede EEOC's enforcement of the ADA and deny individuals the
right to have the court hear the merits of their claims.  Moreover, it
also would permit the continuation of the invidious discrimination that
the ADA is designed to eradicate. 

      The Supreme Court has made clear that general equitable doctrines,
such as judicial estoppel, cannot be applied as absolute bars to suits
brought under the federal anti-discrimination statutes, given the
important "'public purposes' furthered when even a single [person]
establishes that an employer has discriminated against him or her." 
McKennon v. Nashville Banner Publishing Co., __U.S.__, 115 S. Ct. 879, 885
(1995). This is so because "[t]he private litigator who seeks redress for
his injuries vindicates both the deterrence and compensation objectives of
[the Act in question]."  Id. 

      In addition, as the McKennon court explained:

        The disclosure through litigation of incidents or practices 
        which violate national policies respecting nondiscrimination in 
        the work force is itself important, for the occurrence of 
        violations may disclose patterns of noncompliance resulting 
        from a misappreciation of the Act's operation or entrenched 
        resistance to its commands, either of which can be of 
        industry-wide significance.

Id. at 885.

      Thus, if an individual is prevented from bringing an ADA claim
because s/he has applied for disability benefits, discrimination is not
deterred and the plaintiff's interests are not vindicated.  Instead,
"patterns of noncompliance" and pervasive discrimination against people
with disabilities continue.  See also Smith v. Dovenmuehle Mortgage Co.,
859 F. Supp. 1138, 1142, 4 AD Cas. (BNA) 132, 135 (N.D. Ill. 1994)
(barring ADA claim of individual who received disability benefits would
conflict with ADA's stated purpose "to combat the 'continuing existence of
unfair and unnecessary discrimination and prejudice [which denies] people
with disabilities the opportunity to compete on an equal basis'") (quoting
42 U.S.C. � 12101(a)(9)). 


      B. Individuals Should Not Have to Choose Between Applying for
Disability Benefits and Vindicating Their Rights Under the ADA. 

      All persons have a right to be free from discrimination.  In
addition, each individual who meets the eligibility requirements for
disability benefits has a right to receive such benefits.  Barring an
individual who applies for disability benefits from bringing a claim under
the ADA would "place [him/her] in the untenable position of choosing
between his right to seek disability benefits and his right to seek
redress for an alleged violation of the ADA."  Smith v. Dovenmuehle
Mortgage Co., 859 F. Supp. 1138, 1142, 4 AD Cas. (BNA) 132, 135 (N.D. Ill.
1994). 

      Moreover, an individual who applies for SSA, workers' compensation,
and/or disability insurance benefits is not knowingly relinquishing
his/her right to bring an ADA claim but, rather, is exercising independent
rights.  Cf. Alexander v. Gardner-Denver, 415 U.S. 36, 94 S. Ct. 1011
(1974)(the court held that an employee who had pursued a discrimination
claim through union arbitration could not be prevented by the arbitrator's
decision from bringing an independent cause of action under Title VII). 
The ADA was passed with the assumption that individuals with disabilities
who want to work and are qualified to work must have an equal opportunity
to work.  The SSA operates from the same presumption by providing work
incentive programs for disability beneficiaries that permit individuals to
retain benefits while transitioning into employment.  Accordingly, both
the ADA and the SSA seek to promote the employment of individuals with
disabilities whenever possible.  See Mohamed v. Marriott, 1996 WL 631687,
at *6 (S.D.N.Y. Oct. 30, 1996)(noting that since the Social Security Act
itself permits individuals to receive benefits and work at the same time,
"the classes of individuals entitled to protection under the [Social
Security Act and the ADA] are not mutually exclusive").  Thus, because
neither the ADA nor the SSA assumes that individuals are either totally
able or unable to work, a person should not have to choose between
applying for disability benefits or challenging an alleged adverse
employment action under the ADA. 



IV. Instructions to Investigators

      As explained above, representations made in connection with an
application for disability benefits are not dispositive of whether a
person is a "qualified individual with a disability" for purposes of the
ADA.  Therefore, those representations, and the application for disability
benefits, do not bar the filing of an ADA charge, nor should they prevent
an investigator from recommending a cause determination if the evidence
supports such a determination. 

      When determining whether a charging party (CP) is a "qualified
individual with a disability," the investigator must conduct an
individualized, case-by-case inquiry into whether CP can perform the
essential functions of the position held or desired with or without
reasonable accommodation.  This inquiry must focus on the particular
individual and the particular position at issue. 

      Although applying for disability benefits does not preclude CP from
bringing an ADA claim, the representations made while pursuing such
benefits may be relevant -- but not dispositive -- evidence of whether CP
is a "qualified individual with a disability."  As explained in this
guidance, it is essential to look not only at CP's application for
disability benefits but at all of the relevant evidence (e.g., the facts
surrounding the alleged discrimination, disability reports, doctors'
reports, depositions) when determining whether CP meets this definition. 

      When assessing the effect that representations made in the context
of applying for disability benefits may have on this determination, it is
crucial to focus on the exact definition used by the benefits program, the
precise content of the individual's representations, and the specific
circumstances surrounding the application for disability benefits.  It
also is important to look at whether CP was "a qualified individual with a
disability" at the time of the alleged discrimination and whether s/he
maintained that s/he was still able to perform the essential functions of
his/her position, with or without reasonable accommodation, at the time of
the application for benefits.  When deciding what, if any, weight to give
to CP's representations made while pursuing disability benefits,
investigators should consider the following factors:86

      � the definitions of terms such as "disability," "permanent 
        disability," "total disability," "inability to work," etc. 
        under the relevant statute or contract pursuant to which CP 
        applied for disability benefits  (e.g., do they look at 
        specific positions or general kinds of work? do these terms 
        take into account reasonable accommodation?);

      � the specific content of the representations, who made them, and 
        the purpose for which they were made;
      
      � whether the representations are in CP's own words;      

      � whether the representations about CP's inability to work are 
        qualified in any way (e.g., "I am able to work with certain 
        restrictions");

      � when the representations were made, the period of time to which 
        they refer, and whether CP's physical or mental condition has 
        changed since the representations were made;

      � whether CP was working during the period of time referred to as 
        a period of total disability; 

      � whether the employer suggested that CP apply for benefits;

      � whether CP asked for and was denied a reasonable accommodation;

      � when the employer learned of the representations; and

      � other relevant factors, such as advances in technology or 
        changes in the employer's operations that may have occurred 
        since representations were made that may make it possible for 
        CP to perform the essential functions of the position, with or 
        without reasonable accommodation.

1. Codified as amended at 42 U.S.C. �� 12101-17, 12201-13 (1994).

2. By including the phrase "qualified individual with a disability,"
Congress intended to reaffirm that the ADA "does not undermine an
employer's ability to choose and maintain qualified workers."  S. Rep. No.
101-116, at 26 (1989) [hereinafter Senate Report]; H.R. Rep. No. 101-485,
pt. 2, at 55 (1990) [hereinafter House Education and Labor Report]. 
Rather, the ADA simply provides that employment decisions must not subject
a "qualified individual with a disability" to discrimination on the basis
of his/her disability.  Id. 

   The ADA also protects individuals from discrimination on the basis of
their relationship or association with a person with a disability and
prohibits certain disability-related inquiries and medical examinations.
42 U.S.C. � 12112(b)(4), (d). Further, the Act prohibits retaliation or
coercion against individuals because they have opposed any act that the
ADA makes unlawful, have participated in the enforcement process, or have
encouraged others to exercise their rights secured by the ADA.  Id. �
12203.  A person need not be a "qualified individual with a disability" to
be protected by these sections of the Act. 

3. 029 C.F.R. � 1630.2(m)(1996);  see also 42 U.S.C. � 12111(8). 

4. Similar questions also arise where individuals have filed claims for
state disability, disability retirement, Railroad Retirement Board, and
Federal Employee Compensation Act benefits.  The analysis in this guidance
also applies to representations concerning the ability to work made in
other situations, such as applications for scholarships or admission to
education programs and exemptions from, or deferments of, student loan
repayments. 

5. The analysis in this guidance also applies to federal sector complaints
of non-affirmative action employment discrimination arising under section
501 of the Rehabilitation Act of 1973, 29 U.S.C. � 791(g) (1994), and to
complaints of non-affirmative action employment discrimination arising
under sections 503 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. ��
793(d), 794(d) (1994). 

6. Senate Report at 20; House Education and Labor Report at 50.

7. See 42 U.S.C. � 12101(a)(3).

8. 42 U.S.C. � 12101(b)(1).

9. Id. � 12101(b)(2).

10. Id. � 12101(a)(8).

11. Id. � 12101(a)(5),(3).

12. Id. � 12101(a)(4).

13. Id. � 12101(a)(9).

14. See id. � 12101(a)(9) (noting that discrimination "denies people with
disabilities the opportunity to compete on an equal basis and to pursue
those opportunities for which our free society is justifiably famous"). 

15. See 135 Cong. Rec. S10,711 (daily ed. Sept. 7, 1989) (statement of
Sen. Harkin). 

16. See 42 U.S.C. � 12101(a)(7) (denouncing "stereotypic assumptions not
truly indicative of the individual ability of [people with disabilities]
to participate in, and contribute to, society") (emphasis added). 

17. The ADA defines "disability" as: 

    (1) a physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual; (2) a record of such
an impairment; or (3) being regarded as having such an impairment. 

    Id. � 12102(2); 29 C.F.R. � 1630.2(g).

18. 29 C.F.R. � 1630.3(m); see also 42 U.S.C. � 12111(8).

19. 29 C.F.R. pt. 1630 app. � 1630.2(m) (Interpretive Guidance on Title I
of the Americans with Disabilities Act). 

20. Id.

21. See generally id. app. � 1630.2(n); Senate Report at 26;  House
Education and Labor Report at 55; H.R. Rep. No. 101-485, pt. 3, at 33
(1990)[hereinafter House Judiciary Report]. 

22. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987)
(noting that an individualized inquiry into whether a person is "otherwise
qualified" for purposes of section 504 of the Rehabilitation Act is
essential to the goal of protecting individuals with disabilities "from
deprivations based on prejudice, stereotypes, or unfounded fear"). 

23. See 29 C.F.R. pt. 1630 app. (noting in "Background" section that "the
determination of whether an individual is qualified for a particular
position must necessarily be made on a case-by-case basis" and that a
"case-by-case approach is essential if qualified individuals of varying
disabilities are to receive equal opportunities to compete for an
infinitely diverse range of jobs"). 

24. 42 U.S.C. � 12112(b)(5)(A); 29 C.F.R. � 1630.9.

25. See Senate Report at 10 ("the provision of all types of reasonable
accommodations 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"); House Education and Labor Report at
34 (same); House Judiciary Report at 39 (the "reasonable accommodation
requirement is central to the non-discrimination mandate of the ADA"). 

26. 29 C.F.R. pt. 1630 app. � 1630.2(o).

27. 29 C.F.R. � 1630.2(o).

28. 29 C.F.R. pt. 1630 app. � 1630.2(m); see also Senate Report at 26;
House Education and Labor Report at 55. 

29. See generally 42 U.S.C. �� 1381, 1382c(a)(3)(B).

30. The Social Security Act provides for several disability benefit
programs administered by the SSA, including the SSDI and SSI programs. 
The SSDI program provides benefits to disabled workers, dependents, and
widows/widowers if the worker is insured under the provisions of the
program.  The SSI program provides benefits to disabled individuals whose
incomes and assets fall below a specified level. See 42 U.S.C. �� 413-15,
1381-83.  Although the eligibility criteria under the two programs are
different (i.e., SSDI is insurance based and SSI is based on need), the
determinations of disability are virtually identical.  For purposes of
this guidance, the phrase "social security disability benefits" or "SSA
benefits" refers to both the SSDI and SSI programs. 

31. 42 U.S.C. � 423(d)(1)(A); 20 C.F.R. � 404.1505 (1996).

32. Id. � 423(d)(1)(A), (d)(2)(A); 20 C.F.R. � 404.1505.  "Work which
exists in the national economy" means work which exists in significant
numbers, either in the region where such individual lives or in several
regions of the country.  Id. � 423(d)(2)(A). Isolated jobs which exist
only in limited numbers in relatively few locations outside the region
where the claimant lives are not considered "work which exists in the
national economy."  Id. 

33. Id. � 422(c); see also Mohamed v. Marriott, 1996 WL 631687, at *7
(S.D.N.Y. Oct. 30, 1996)(noting that "the Social Security Act shares the
goal of encouraging individuals to engage in remunerative employment,
because it permits an individual to receive benefits while working"). 

34. Under SSA regulations, a beneficiary may evaluate whether his/her
condition has improved by doing some work without fear of losing
disability benefits.  20 C.F.R. � 404.1592(a). 

35. Id.

36. Id. �� 404.1520, 404.920.

37. Substantial gainful activity refers to work activity that is both
substantial and gainful.  Id. �� 404.1572, 416.972.  Work activity is
substantial if it requires the performance of significant physical and
mental activities.  Id. �� 404.1572(a), 416.972(a). Work activity is
gainful if it is engaged in for profit.  Id. �� 404.1572(b), 416.972(b). 
In determining whether work actually performed is substantial gainful
activity, the SSA considers factors such as the nature of the work
performed, how well the claimant performs that work, whether the work is
performed under special conditions, and the amount of time spent working. 
Id. �� 404.1573, 416.973. 

38. "Past relevant work" is substantial gainful activity which was
performed within the 15 years prior to the claim for benefits.  See
generally id. �� 404.1560-61. 

39. To determine whether a claimant can perform any work which exists in
the national economy, the SSA considers what the individual still can do,
given his/her functional limitations and vocational capabilities (age,
education, and past work experience).  Id. � 404.1520(f)(1). Individuals
who have marginal education, long work experience (i.e., 35 years or more)
in only arduous unskilled physical labor, and can no longer do this kind
of work may have adisability for SSA purposes and be eligible for benefits
even though they are capable of performing sedentary work.  Id. ��
404.1520(f)(2), .1562. 

40. Id. � 404.1504.   

41. See id. � 404.1520(d); 20 C.F.R. pt. 404, subpt. p, app. 1 (listings
of impairments).  The listings consist of medical criteria for specified
disorders for each of the major body systems (e.g., musculoskeletal
system, respiratory system, immune system). 20 C.F.R. � 404.1525(d).  Most
of the listed impairments are permanent or expected to result in death.
For all others, the evidence must show that the impairment has lasted or
is expected to last for a continuous period of at least 12 months. Id. 
The listings contain more than 150 categories of medical conditions that,
according to the SSA, are severe enough ordinarily to prevent an
individual from engaging in substantial gainful activity.  For example,
listed impairments under the musculoskeletal system include the loss of
both hands or feet. 20 C.F.R. pt. 404, subpt. p, app. 1 � 1.09(A), (B). 
Under the ADA, however, a person with no hands or feet may well be a
"qualified individual with a disability" who is able to work with or
without reasonable accommodation. 

     In addition, the Social Security Act provides a special disability
eligibility for individuals who are blind.  Any claimant age 55 or older
who has a visual impairment that meets the statutory definition of
blindness (i.e., central visual acuity of 20/200 or less in the better eye
with use of correcting lens) is presumed to be incapable of engaging in
substantial gainful activity and is deemed eligible for disability
benefits.  See 20 C.F.R. �� 404.1581, .1583.  Again, under the ADA, many
persons who are blind are qualified to perform the essential functions of
numerous positions with or without reasonable accommodation. 

42. See Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996)(the inquiry into
whether an individual with a disability can engage in substantial gainful
activity "is based on the functional demands and duties of jobs as
ordinarily required by employers throughout the national economy" and not
on the requirements of a particular position); Overton v. Reilly, 977 F.2d
1190, 1196 (7th Cir. 1992)(a determination of disability for SSA purposes
cannot be construed as a judgment that an individual cannot do a
particular job). 

43. See generally 70A Am. Jur. 2d Social Security � 984 (all tasks
required in the job must be considered). 

44. See "Americans with Disabilities Act of 1990 -- INFORMATION,"
Memorandum from the Associate Commissioner, Social Security Administration
1 (June 2, 1993). 

45. See Eback v. Chater, 94 F.3d at 412 (since the ADA and Social Security
Act have different purposes, the SSA's determination whether there are
available jobs that the claimant can do is based on broad vocational
patterns and not on an assumption that an employer would be willing to
make accommodations under the ADA); Mohamed v. Marriott, 1996 WL 631687 at
*6 (S.D.N.Y. Oct. 30, 1996)(an individual may be "disabled" for purposes
of receiving SSA benefits because few jobs which s/he might be able to
perform are currently structured to accommodate his/her disability, but
still be within the ADA's protected class because a particular position in
which s/he has an interest could be modified to accommodate his/her
disability). 

46. See generally 1 Arthur Larson, The Law of Workmen's Compensation, �
1-1.10 (1994). 

47. Id.

48. See id.   

49. 82 Am. Jur. 2d Workers' Compensation � 380.

50. Id.; see, e.g., W. Va. Code � 23-4-6(n).

51. For the purposes of workers' compensation statutes, a disability is
permanent if it appears to be of lasting or indefinite duration, as
distinguished from a temporary condition from which a person usually
recovers after normal healing.  82 Am. Jur. 2d Workers' Compensation �
381. 

52. Id.

53. See generally 82 Am. Jur. 2d Workers' Compensation �� 379-80.

54. Temporary total disability benefits are designed to provide
compensation to an injured or ill employee for the economic losses
incurred during recuperation.  99 C.J.S. Workers' Compensation � 304. 

55. Id.

56. Short-term disability (STD) plans pay benefits for disability up to a
specified period, generally not exceeding two years; long-term disability
(LTD) plans pay extended benefits, generally until retirement age, but may
require a higher showing of disability. Employment Benefits Law 947 (ABA
Section of Labor & Employment Law) (Steven J. Sacher et al. eds. 1991). 

57. See id.

58. See Miller v. U.S. Bancorp, 926 F. Supp. 994, 998, 5 AD Cas. (BNA)
968, 971 (D. Or. 1996). 

59. See Reiff v. Interim Personnel, Inc., 906 F. Supp. 1280, 1289, 5 AD
Cas. (BNA) 740, 745 (D. Minn. 1995). 

60. See, e.g., Miller v. U.S. Bancorp, 926 F. Supp. at 998, 5 AD Cas. at
971. 

61. A part-time or modified work schedule is a form of reasonable
accommodation under the ADA.  42 U.S.C. � 12111(9)(B); 29 C.F.R. �
1630.2(o). 

62. See D'Aprile v. Fleet Services Corp., 92 F.3d 1, 4-5 (1st Cir. 1996)
(emphasis added). 

63. See, e.g., Robinson v. Neodata Services, Inc., 94 F.3d 499, 502 n. 2,
5 AD Cas. (BNA) 1441, 1442 n.2 (8th Cir. 1996)(SSA determinations of
disability "are not synonymous with a determination of whether a plaintiff
is a 'qualified person' for purposes of the ADA"); Overton v. Reilly, 977
F.2d 1190, 1196, 2 AD Cas. 254, 260 (7th Cir. 1992)(SSA's finding that a
person is disabled "is consistent with a claim that the disabled person is
'qualified' to do his job under the Rehabilitation Act"); Pegues v.
Emerson Electric Co., 913 F. Supp. 976, 980, 5 AD Cas. 376, 379 (N.D.
Miss. 1996)(a finding of disability by a state workers' compensation
commission or the SSA does not necessarily foreclose an ADA claim); Palmer
v. Circuit Court of Cook County, Soc. Serv. Dep't, 905 F. Supp. 499, 508
n.10 (N.D. Ill. 1995)(citing Overton v. Reilly and Smith v. Dovenmuehle)
(determinations made by the SSA concerning disability "are not dispositive
findings for claims arising under the ADA"); Smith v. Dovenmuehle
Mortgage, Inc., 859 F. Supp. 1138, 1141-42, 4 AD Cas. 132, 135 (N.D. Ill.
1994)(citing Overton v. Reilly)(a finding of disability by the SSA "cannot
be construed as a judgment that the plaintiff is unable to do his job"). 

64. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987).

65. See 42 U.S.C. � 12101(a)(9) (noting that discrimination "denies people
with disabilities the opportunity to compete on an equal basis and to
pursue those opportunities for which our free society is justifiably
famous"). 

66. Further, although the Third Circuit used the doctrine of judicial
estoppel to reject the plaintiff's claim, it stressed that judicial
estoppel is a discretionary doctrine.  The court also emphasized that
"each case must be decided upon its own particular facts and
circumstances."  McNemar, 91 F.3d at 617, 5 AD Cas. at 1232. 

67. See, e.g., Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996)(since the
ADA and Social Security Act have different purposes, the SSA's
determination whether there are available jobs that the claimant can do is
based on broad vocational patterns and not on an assumption that an
employer would be willing to make accommodations under the ADA). 

68. The D'Aprile decision interpreted the Rhode Island Fair Employment
Practices Act, R.I. Gen. Laws � 28-5-1, et seq., which includes a
reasonable accommodation requirement.  D'Aprile, 92 F.3d at 2.  (The
defendant removed the case to federal district court based on diversity of
jurisdiction.)

69. In August, a furniture salesperson applied for disability insurance
benefits after his employer refused his request to return to work on a
part-time basis following an extended leave of absence for severe
depression.  The First Circuit affirmed the district court's grant of
summary judgment on the grounds that the plaintiff could not show that he
was a "qualified individual with a disability" because he had conceded
that he was totally disabled. 981 F.2d at 581, 2 AD Cas. at 406.  The
dissent, however, pointed out the weakness in the majority's reasoning,
noting that it was not clear how "total disability" was defined in the
plaintiff's insurance policy.  Thus, the dissent correctly concluded that
the plaintiff's inability to return to work after the employer denied his
request for a part-time schedule "only demonstrates that, absent
accommodations by [the employer, the plaintiff] could not work.  It does
not prove that he would have been incapable of working had his request[]
been granted."  August, 981 F.2d at 586, 2 AD Cas. at 408. 

70. Compare Anzalone with Kennedy v. Applause Inc., 90 F.3d 1477, 5 AD
Cas. (BNA) 1249 (9th Cir. 1996), where the court looked not only at the
plaintiff's statements in support of her application for disability
benefits but at all of the relevant evidence in assessing whether the
plaintiff was a "qualified individual with a disability."  In Kennedy, a
sales representative who had returned to work after a three-month leave of
absence was discharged after she submitted a doctor's note stating that
she could not work and needed another leave of absence.  She then applied
for state disability benefits, stating that her symptoms forced her to
stop working.  She also stated in a subsequent SSA "Daily Activities
Questionnaire" that she barely could get out of bed.  In her deposition on
her ADA claim, however, the plaintiff testified that she could have
continued to perform her job duties on a part-time or adjusted work
schedule. 

     In affirming the district court's grant of summary judgment, the
Ninth Circuit based its holding on the fact that there was no evidence,
other than the plaintiff's "self-serving" deposition testimony that she
was capable of continuing to work, to show that she could have performed
the essential functions of her job.  90 F.3d at 1481, 5 AD Cas. at 1251. 
Although the court cited to the plaintiff's application for disability
benefits, it did so only to point out that the plaintiff's statements
"corroborate[d]" her treating physician's assessment that she was totally
unable to perform her job. Id.  But see Garcia-Paz v. Swift Textiles, 873
F. Supp. 547, 3 AD Cas. (BNA) 1844 (D. Kan. 1995)(in granting the
defendant's motion for summary judgment, the court failed to consider
whether the plaintiff could have done her job with reasonable
accommodation). 

     Thus, Kennedy supports the Commission's view that the plaintiff's
statements might be relevant to -- but not dispositive of -- whether s/he
was qualified for the job at issue.  Such statements alone cannot defeat
the plaintiff's case, especially where countervailing evidence otherwise
supports a finding that the plaintiff is a "qualified individual with a
disability." 

71. The Patel decision interpreted the Massachusetts discrimination
statute, Mass. Gen. Laws ch. 151B, �1(16), which defines a "qualified
individual with a disability" in language nearly identical to the ADA. 

72. Further, representations made in the context of applying for
disability benefits should not be construed as an evidentiary admission
that a person is not a "qualified individual with a disability" for
purposes of coverage under the ADA (i.e., an individual who represents
that s/he meets the eligibility requirements for disability benefits is
not necessarily admitting that s/he cannot perform the essential functions
of a particular position with or without accommodation). 

73. EEOC investigators should note that, while the doctrine of judicial
estoppel and summary judgment procedures are relevant to litigating civil
lawsuits, they are not relevant to Commission charge processing. 

74. The doctrine of judicial estoppel has not been universally embraced. 
At least two circuit courts have refused to recognize the doctrine.  See
United Mine Workers of America 1974 Pension v. Pittston Co., 984 F.2d 469,
477 (D.C. Cir.), cert. denied, 113 S. Ct. 3039 (1993); Chrysler Credit
Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1520 n.10 (10th Cir.
1991).  Other courts have warned that the doctrine should be "applied with
caution to avoid impugning on the truth-seeking function of the court." 
Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990). 

75. Other courts, however, have ignored this difference and have
inappropriately applied the doctrine to dismiss ADA claims.  See, e.g.,
McNemar v. The Disney Stores, 91 F.3d 610, 5 AD Cas.(BNA) 1227 (3d Cir.
1996)(discussed supra � I.C.1); August v. Offices, Unlimited, Inc., 981
F.2d 576 (1st Cir. 1992)(discussed supra� I.C.2). 

76. See, e.g., August v. Offices Unlimited, Inc., 981 F.2d 576, 586, 2 AD
Cas. (BNA) 401, 408 (1st Cir. 1992)(Pettine, J., dissenting) (noting that
the "disability insurance forms [at issue] are not legally or medically
precise"). 

77. See, e.g., Muellner v. Mars, Inc., 714 F. Supp. 351 (N.D. Ill.
1989)(in conjunction with the plaintiff's application for benefits under
the employer's disability insurance plan, the employer and the insurer
instructed the plaintiff to apply for SSA benefits because any such
benefits would be set off against the disability insurance payments). 

78. The plaintiff also attached a letter to his application for disability
retirement, stating that his submission of his application and statements
made on it were not intended as a waiver of his position that he would
have been able to continue to perform his duties with reasonable
accommodation.  Ward, 859 F. Supp. at 614, 3 AD Cas. at 745. 

79. Moreover, some individuals with disabilities who have applied for
disability benefits later seek employment when they learn of jobs that
they can do with reasonable accommodation. Where such individuals believe
that they were not hired for such positions because of discrimination,
they should not be precluded from bringing an ADA claim merely because
they previously applied for disability benefits stating that they were
"totally disabled" or "unable to work." 

80. The defendant's Fire Fighters' and Police Officers' Retirement Trust
Board of Trustees had the authority to recommend to the defendant that any
retiree who is no longer incapacitated for service be returned to his
former classification.  Lundstedt, 5 AD Cas. at 571. 

81. Compare Lawrence with McNeill v. Atchison, Topeka, and Santa Fe
Railway Co., 4 AD Cas. (BNA) 300 (S.D. Tex. 1995).  In McNeill, eight days
after receiving a $305,000 award under the Federal Employer's Liability
Act for a back injury that allegedly prevented him from working, the
plaintiff filed an ADA suit against the defendant for failure to reinstate
him.  "[A]stonished by the audacity of the plaintiff in asserting that he
was 'rehabilitated' from a 'permanent disability' within eight days," the
court granted the defendant's motion for summary judgment.  Id. at 303. 
The court stated, however, that if the plaintiff had filed his ADA claim
"after a protracted period of convalescence, or vigorous and successful
rehabilitation," or if his condition had changed because of new medical
treatments or scientific technology, it would have considered the merits
of his claim.  Id. 

82. 42 U.S.C. � 12101(b)(1).

83. Id. � 12101(a)(4).

84. Id. � 12101(a)(3).

85. Id. � 12117(a).

86. No one factor is necessarily determinative of whether CP is a
"qualified individual with a disability." Rather, the investigator should
consider all relevant evidence.
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