Academic journal article Vanderbilt Law Review

What Employees Say, or What Employers Do: How Post-Cleveland Decisions Continue to Obscure Discrimination

Academic journal article Vanderbilt Law Review

What Employees Say, or What Employers Do: How Post-Cleveland Decisions Continue to Obscure Discrimination

Article excerpt


The phrase "equal justice" has dubious meaning for persons with disabilities who seek redress of employment discrimination in court. After experiencing job loss and facing relatively slim chances of reemployment, many of these individuals seek judicial recognition that their employers failed to accommodate their disabilities. Yet the vast majority of plaintiffs who bring employment discrimination lawsuits under the Americans with Disabilities Act ("ADA") lose. In 2006, employers prevailed in 212 of the 272 cases that went to trial in federal court.1 Some commentators point to the high win rates for employers as evidence of judicial frustration with the volume of ADA litigation.2 Indeed, the ADA is arguably one of the most frustrating federal statutes for courts and one that has generated interpretive confusion with record speed. Many employees seek the statute's protection. In 2007, the Equal Employment Opportunity Commission ("EEOC") received over 17,000 disability discrimination complaints, yet found reasonable cause for discrimination in only five percent of them.3

Many ADA plaintiffs also seek the protection of another, considerably older federal statute: the Social Security Act ("SSA"). Receipt of disability benefits under the SSA makes a successful ADA claim even more difficult. ADA plaintiffs must prove that they could perform the essential functions of their jobs, with or without reasonable accommodations.4 If a disability renders someone completely unable to do a job, there is no recourse under the ADA.5 By contrast, a successful Social Security Disability Insurance ("SSDI") claim hinges on an applicant's inability to work.6

The ostensible mutual exclusivity of the statutes has proven invaluable to employers by permitting them to argue that ADA plaintiffs who receive SSDI plead the impossible: they are both able and unable to do their jobs. Capitalizing on the statutory conflict, employers' counsel often invoke judicial estoppel, a doctrine that prevents a party who prevailed on an assertion in a legal proceeding from benefiting from a contradictory assertion in a subsequent legal proceeding.7 Rarely raised compared to other preclusion doctrines like res judicata and collateral estoppel,8 judicial estoppel has gained currency against plaintiffs who seek the protection of the ADA after being awarded disability benefits.9 The risk that SSDI will preclude an ADA claim puts a plaintiff in the unenviable position of choosing between financial support after a job loss and redressing the allegedly unlawful employer action that caused the need for government support. For most ADA plaintiffs, however, "choice" is a misnomer; judicial estoppel is a trap for those who simply could not have imagined that a court would deem redressing discrimination and obtaining minimal financial assistance to be inconsistent and even unlawful goals.

In 1999, the Supreme Court tried to resolve the lower courts' varying applications of judicial estoppel to ADA and SSDI claims.10 In Cleveland v. Policy Management Systems Corp., the Court held that receipt of SSDI is not an automatic bar to an ADA claim.11 Plaintiffs must, however, offer a "sufficient explanation" for the apparent inconsistency to avoid summary judgment.12 Although hailed as a victory for ADA plaintiffs, Cleveland still allows employers to win summary judgment when employees receive disability benefits and fail to offer a satisfactory explanation.13 While some plaintiffs awarded SSDI are able to proceed with ADA claims,14 the continued invocation of judicial estoppel raises questions about the doctrine's appeal in this particular statutory context.

Judicial estoppel does possess a certain logical appeal. On the surface, the statutory conflict between the ADA and the SSA puts claimants in the contradictory position of pleading that they are both able and unable to work. Applying judicial estoppel allows courts to express frustration with this conflict and eliminate unmeritorious claims relatively quickly. …

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