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Cato Deploys New Weapon: “Disability Fraud”


 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Marta Russell can be reached at [email protected] http://disweb.org/

 

 

 

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