According to a recent article in the Wall Street Journal, the cost of Social Security Disability Insurance (SSDI) benefits has skyrocketed. In 2010, U.S. workers paid $104 million into the program, while far more – $127.7 billion – was paid out in benefits. Much of this is due to expanded definitions of disability, but the article reports that fraudulently obtained benefits also are a major problem.
Against this backdrop, a case issued by the U.S. Court of Appeals for the Fourth Circuit on April 17, 2012 is particularly interesting. In EEOC v. Greater Baltimore Medical Center, the EEOC asked the Fourth Circuit to reverse the grant of summary judgment in favor of GBMC under the Americans with Disabilities Act (ADA). GBMC refused to reinstate an employee who made representations to the Social Security Administration (SSA) that he was totally disabled from working. The lower court found the employee’s representations to SSA to be utterly inconsistent with any conclusion that he was a “qualified individual with a disability” under the ADA; that is, able to perform the essential functions of his job, with or without a reasonable accommodation.
The applications for SSDI benefits filed by the employee asserted that he was totally disabled from work as demonstrated by:
- severe impairments in his left arm and hand,
- use of a beside commode with hand rails,
- left sided weakness which required him to have assistance with walking,
- use of leg braces,
- inability to drive,
- inability to lift more than two to three pounds, and
- severe limits on his ability to stand, bend, or walk.
According to a case decided several years ago by the U.S. Supreme Court, Cleveland v. Policy Mgmt. Sys. Corp., while an employee should not automatically be “estopped” by an SSDI application from pursuing an ADA claim, in order to survive summary judgment, he has to provide some reasonable basis to permit a jury to conclude that his representations of “total disability” are reconcilable with a claim that he is a “qualified individual with a disability” under the ADA. In this case, the question for the court was could a reasonable jury find that this employee was acting in good faith in representing to SSA that he could not work at all while at the same time telling GBMC that he could return to work without any accommodation?
A divided Fourth Circuit answered no. Having never alerted SSA to any change in his circumstances and having continued to receive his checks, the employee’s ADA claim was, the majority concluded, foreclosed. The court found it impossible for the employee to both have a good faith belief that he could return to work without accommodation while at the same time have a good faith belief that he was entitled to benefits due to his total disability, as detailed in his SSDI application.
The EEOC countered that “passive receipt” of such benefits by the employee should not be viewed as an affirmative representation to SSA. The majority rejected this position.
Judge Gregory, in dissent, would have reversed summary judgment, mainly because the EEOC, not the employee, was the party bringing the case and the EEOC never made any misrepresentations. In addition, Judge Gregory asserted that the agency charged with enforcing discrimination laws has a broader mission. As such, he wrote, the EEOC “should not be barred through the happenstance of an unemployed victim having applied for and received SSDI benefits.”
This case presents some interesting issues. First, as a purely legal matter, the EEOC’s mission to address discrimination cannot be separated from the fundamental requirement that the cases it pursues be based on cognizable claims. If the employee is not an individual with a disability within the meaning of the ADA, then his claims cannot be the basis for an EEOC enforcement action. The majority got that right.
Second, it is hard to fathom why an employer should be accountable to an employee under the ADA for back-pay and other damages for refusing to return him to work when he has represented to the government, under oath, that he is totally unable to work and received years of disability benefit payments as a result. Moreover, where litigation about this takes almost six years to resolve (as it did in this case), that entails significant costs, both in EEOC funds expended on litigation and those of the defending employer (in this case, a hospital).
Finally, when one government agency – the EEOC – asks the court to ignore an employee’s “passive” failure to advise another government agency – SSA –- that he is no longer entitled to benefits because he actually is not disabled from work, I start really scratching my head.