Are You Sure You Want To Incorporate The ADA Into Social Security Disability Determination?

     Not long after the passage of the Americans with Disabilities Act (ADA), the Social Security Administration decided that it would not try to incorporate the ADA requirement that employers afford reasonable accommodation to those with disabilities into Social Security disability determination. We now hear rumblings that this was the wrong decision and that Congress should force the agency to acknowledge that with the "reasonable accommodation" provided for in the ADA that many more disabled people can now work and should not be drawing disability benefits from Social Security.
     There a couple of simple responses to this idea. One is that employer attitudes towards the disabled have always been irrelevant in determining disability under the Social Security Act so that passage of the ADA was pretty much irrelevant. The second is that the ADA hasn't wrought any revolution for disabled people. In fact, it's had virtually no impact upon the hiring of disabled people, particularly since it's largely been interpreted out of existence by the courts.

     But let's put those arguments aside and try to game how incorporating the ADA into Social Security disability determination would play out. The terms "disability" and "reasonable accommodation" have been extremely troublesome in interpreting the ADA. Try to incorporate the ADA into Social Security disability determination and you inevitably end up with a lot of federal court litigation to try to define what these terms mean., not in the Social Security Act but in the ADA. On the one hand you would have Social Security insisting that a Social Security disability claimant has a "disability" as that term is defined in the ADA but is not "disabled" as that term is defined in the Social Security Act because of the "reasonable accommodation" afforded by the ADA. On the other hand, you would have the claimant arguing that he or she is "disabled" as that term is defined in the Social Security Act but that he or she does not have a "disability" as that term is defined in the ADA -- and believe it or not, given how the ADA has been interpreted that will often be a strong argument -- or because the accommodation needed so that he or she could return to work would go beyond what is reasonable Holdings in Social Security litigation over the meaning of the ADA would inevitably affect employers but all of this litigation -- thousands, perhaps tens of thousands of cases a year -- would proceed without an employer or the Equal Employment Opportunity Commission (EEOC) being a party. 

      I think that would be madness.
     By the way, it would be impossible for Social Security to go down this road without legislation. Social Security has already told the Supreme Court that its interpretation is that passage of the ADA had no effect on Social Security disability determination. An agency can't change its mind about this sort of thing after making that formal a declaration. Trust me on this. I'm a lawyer.