Consider the following scenario:
Person X works for a company of over fifteen employees, develops a disability, and is terminated from her position because of that disability. She then files for Social Security Disability Income (SSDI) benefits. Or perhaps she files for short-term or long-term disability benefits under the company’s policy. She then brings suit under the Americans With Disabilities Act (ADA) for failure of the employer to reasonably accommodate her disability.
The defense in this type of case is invariably based on the case of Cleveland v. Policy Management Systems1 where the claim is that the person in some other proceeding has claimed total disability and is therefore estopped, or prevented, from claiming he or she can do the essential functions of the job with or without reasonable accommodations (the ADA refers to the concept of being able to do the essential functions of the job with or without reasonable accommodations by the term, "otherwise qualified."2). In Cleveland plaintiff filed for Social Security Disability Benefits and obtained them.3 Subsequently, he filed an ADA suit claiming the employer failed to reasonably accommodate his disability in violation of the ADA.4 To obtain SSDI, a person has to show that he is unable to perform any job in the economic marketplace.5
In holding that judicial estoppel might apply in such situations, Justice Breyer, writing for the United States Supreme Court, wasted no time in laying out the holding of the case. Justice Breyer said that the pursuit and receipt of SSDI benefits do not automatically estop the plaintiff from pursuing an ADA claim.6 Nor does the law erect a strong presumption against the plaintiff’s success in filing an ADA claim.7 However, an ADA plaintiff cannot simply ignore her SSDI contention.8 To survive a motion for summary judgment, the plaintiff must explain why the information in the SSDI filing is consistent with showing that the plaintiff is otherwise qualified for the position at issue.9
Second, Justice Breyer took note of the apparent conflict between the ADA and SSDI, but proceeded to say the inherent conflict (the ADA saying, "I can do the job if I am reasonably accommodated" v. SSDI saying, "I can’t do any job in the economic marketplace), was not so severe that courts should apply a special negative presumption.10
Third, the ADA and SSDI systems operate completely differently from each other. For example, the SSDI system does not factor reasonable accommodation into its calculus.11 Thus, an ADA suit claiming that the plaintiff can perform the job with reasonable accommodation may be consistent with claiming the inability to perform a job or jobs without it.12
Fourth, Justice Breyer noted that people receiving SSDI can work under certain parameters.13
Finally, even with all this said, an ADA plaintiff cannot ignore the SSDI and ADA apparent contradiction; a sufficient explanation must be forthcoming.14 In order to defeat a summary judgment motion, the explanation must be sufficient to warrant a reasonable juror concluding that (assuming the truth of the claims made or the plaintiff’s good-faith belief in the truth of those claims made in the SSDI filing), the plaintiff would nonetheless perform the essential functions of the job with or without reasonable accommodation.15
Thus, the Supreme Court has clarified just how judicial estoppel will be treated in the future vis-à-vis the ADA. What it means for the practitioner is that when filing an SSDI claim or a long term disability claim on behalf of the client, form will become very important. That is, if the practitioner wishes to forestall a future judicial estoppel claim vis a vis any ADA action, it will have to be made clear that the filing with regards to responding to questions going to whether the client is able to work assumes that reasonable accommodations are not taken into account. Failure to take those precautions could well sink the client later if he or she pursues an ADA claim.16 Finally, it is no longer SSDI that is the sole worry as courts are now holding that representations made in a long term disability application may also activate judicial estoppel. 17 With respect to SSDI, it might be possible that an administrative law judge might raise the issue as to why a person should get SSDI if they are alleging in an ADA proceeding that they could work given reasonable accommodations.18
However, the truth is that the SSDI practitioner rarely gets involved in an ADA matter, and the ADA practitioner, for the reasons above, would be loathe to get involved with SSDI. Nevertheless, a strong argument can be made that both the SSDI and the ADA practitioner have a legal duty to inform the client about how the ADA and SSDI impact on their claim. To prove a claim for legal malpractice in Illinois, the plaintiff must show: 1) an attorney-client relationship existed; 2) a duty was owed by the attorney to the plaintiff as a result of that relationship; 3) a breach of that duty on the part of the attorney; 4) causation; and 5) damages.19 An attorney, just like a physician, has the obligation to inform the client of all the alternative legal options and to explain the foreseeable risks and benefits of those options.20 As with informed consent in medical malpractice cases, to recover on this theory the plaintiff would have to show that but for the failure to be advised of the risks and benefits of the proposed legal course of action, the plaintiff would not have consented to taking that legal approach.21 Since the Supreme Court’s decision on judicial estoppel dates back to 1999, the risks of judicial estoppel are well known and certainly foreseeable.
As noted above, the plaintiff would have to show that he suffered damages as well.22 Certainly, that should not be a problem in the judicial estoppel case because the plaintiff could either allege that he didn’t get SSDI benefits or that he did not get the accommodations any attendant damages vis a vis the ADA, whichever may be the case.
This brings us to the question of what is an attorney to do. An SSDI attorney needs to tell the client the risks of filing an ADA case vis a vis the SSDI claim. The SSDI attorney would also need to tell the client the risks of agreeing to go forward with the SSDI claim vis a vis any future ADA claim. An attorney could cover this material with the client in any number of ways (be sure to document regardless), however an easy way might be the fee agreement. For example a fee agreement for the SSDI attorney might read in part:
"Client agrees not to pursue any ADA claim during the pendency of the SSDI proceeding. Further, Client agrees and understands that by electing to go through with the SSDI proceeding, the client may be negatively impacting on his/her chances to later claim that he should be accommodated in any job under the requirements of the ADA. Nevertheless, Client has elected to proceed with the SSDI claim in full understanding of the risks as described by the attorney and as described in this agreement."
The ADA attorney might have language in their fee agreement along the lines of the following:
"Client recognizes that by filing an ADA claim, it may be more difficult for client to receive SSDI benefits. Client further recognizes that the filing of any SSDI claim at any time could severely jeopardize his/her present or future rights under the
ADA. Further, if Client elects to proceed with an SSDI claim during the pendency of this ADA proceeding, Client will notify attorney of same. Client recognizes that regardless of the care taken while filing for an SSDI claim to preserve any rights under the ADA, such efforts may make it difficult to obtain SSDI benefits and/or may make it impossible to preserve the Client’s ADA claim and any future rights he or she may have under the ADA ."
In conclusion, the intersection of the ADA and SSDI does create a risk of legal malpractice. Therefore, whether it is by the fee agreement or by some other means, the SSDI attorney or the ADA attorney, whichever may be the case, need to disclose those risks to the potential client if the attorney wants to minimize the risks of legal malpractice. Of course, nothing in this article is a substitute for competent legal advice.
1 See generally, Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999)
2 See 29 C.F.R. § 1630.2.
3 Cleveland supra. 526 U.S. at 798-99.
4 Id. at 799.
5 Id. at 973-974; See also 20 C.F.R. § 404.1505(a).
6 Cleveland, 526 U.S. at 802-03.
7 Id. at 802.
8 Id. at 806.
9 Id. at 806-07.
10 Id. at 802-03.
11 This author was unable to find any reference to reasonable accommodations in the SSDI regulations. See, eg. 20 C.F.R. §§404.1505, 404.1509, 404.1510, 404.1521, and 404.1560.
12 Cleveland, 526 U.S. at 803.
13 Id. at 805.
14 Id. at 805-07.
15 Id. at 807.
16 See Johnson v. ExxonMobil Corp., 426 F.3d 887, 892 (7th Cir. 2005) (Holding that a plaintiff that successfully obtained SSDI benefits was estopped from claiming any right to reasonable accommodation vis a vis an ADA suit where his explanation for the inconsistency, "a mistake", was insufficient)..
17 See Opsteen v. Keller Structures, Inc., 408 F. 3d 390 (7th Cir. 2005).
18 As mentioned above, such an argument of the ALJ, while it might be made, would not find support in the SSDI regulations.
19 See Metrick v. Chatz, 266 Ill. App. 3d 649, 639 N.E.2d 198, 200 (1st Dist. 1994).
20 Id. at 201.
21 Id. at 202.
22 See generally, Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, 837 N.E.2d 99 (Ill. 2005).
William D. Goren, J.D., LL.M., a long time member of the DCBA publication board, is an Associate Professor of Legal Studies at Northwestern Business College’s Naperville campus. Mr. Goren has published widely on the rights of persons with disabilities, including two books on the Americans With Disabilities Act published by the American Bar Association (of which the second edition is due out this year). Mr. Goren received his J.D. from the University of San Diego and his LL.M. in Health Law from DePaul University.