- The Washington Times - Thursday, September 7, 2000

After receiving two separate sexual harassment complaints about a company employee, the story goes, IBM officials had to pull the man aside and caution him against such behavior. Another employee might have been grateful that they hadn't fired him on the spot, but not he. No, he told them the warning had aggravated his problems with depression, that they should be careful about issuing future reprimands, and, further, that the company should not require him to work longer than 8-hour shifts. The company, perhaps taken aback by his demands, accommodated them, and for the next seven years he went about his work successfully.
The story didn't end there though. Claiming that his colleagues, who were all working 12-hour shifts, had come to resent his diminished duties, he told superiors that the workplace was just too stressful for him to continue. He stopped coming to work and filed for, of all things, disability benefits. The most amazing part of the story, however, is not that he sought the benefits. It's that the Social Security Administration (SSA) actually granted them to him. If George W. Bush and Al Gore want to "save" Social Security, they might start by working on cutting off program aid to dependent sexual harassers.
Unfortunately for U.S. taxpayers, this case is hardly the only example of its kind. Writing in a Cato Institute paper last month, James M. Taylor, managing editor of Accommodating Disabilities Business and Management Guide, argues that the agency has awarded a "flood" of disability benefits to persons who don't qualify for them. It's a waste of taxpayer dollars that could have covered the cost of benefits for seniors in general or genuinely disabled persons in particular.
The Social Security Disability Insurance program is supposed to aid only those persons incapable of doing work of any kind in this nation's economy. A White House spokesman struck down with a malady that permitted him to speak only the truth might, by administration standards, be considered disabled. But he would not qualify for SSA benefits because his problem wouldn't prevent him from working elsewhere.
Interestingly, the Clinton administration has worked aggressively to lower the bar to receive disability benefits. Mr. Taylor writes that the administration has gone so far as to defend plaintiffs who, on the one hand, seek disability benefits on grounds that they can't do work of any kind, and on the other, file suit against their employers under the Americans with Disabilities Act (ADA) on grounds that they could have worked had the employer only made some reasonable accommodation.
It takes some mental acrobatics to argue both positions at the same time, but the administration feels limber enough to try. It argues, says Mr. Taylor, "the term 'unable to work' does not mean that a claimant is actually unable to work. It instead is merely a 'term of art,' the meaning of which depends on the circumstances of the assertion." There is no controlling legal authority when the administration can redefine words at its political convenience.
Not surprisingly the number of disability recipients has risen sharply. Between 1991 and 1998, the U.S. population grew 7 percent, according to the U.S. Census Bureau. SSA, however, reports that it granted benefits to 47 percent more persons over the same period. The payments now account for 14 percent of all Social Security distributions. No doubt, some recipients really can't work. But consider how loose the standards are in practice:
A Kansas City bus driver diagnosed with hypertension successfully managed her condition with medication for 10 years on the job. But after supervisors caught her sleeping on the bus and warned her she would be fired if it happened again, they caught her again and made good on their word. The bus driver filed suit under ADA saying she was disabled because of her hypertension, and her medication made her drowsy. A federal court, noting that she had managed to negotiate the problem for 10 years, threw the ADA case out. The Social Security Administration awarded her full disability benefits.
A railroad conductor who had surgery for back and knee injuries suffered on the job recovered well enough to go hiking, camping and scuba diving. His own doctor acknowledged, "I must admit that this man seems to be physically qualified to do almost any type of work." He even asked for his old job back. Still he sought and ultimately received full disability benefits from Social Security.
A textile worker, fired for misconduct and absenteeism, filed suit against her employer under ADA on grounds that the company should not have fired her until it had first accommodated minor ailments that prevented her from working on the company's concrete floors. But it wasn't the "disability" that was the problem in the case, a federal judge explained. It was her misconduct, which included baring her rear end to show off a tattoo. She lost the case. But notwithstanding her admission that she was prepared to go back to work under the right conditions, the Social Security Administration awarded her full disability benefits.
It's hard to know how many cases like this exist because the Social Security Administration doesn't publicize its awards, and recipients typically don't either. Only when a beneficiary also files suit in court under the ADA statute do the details drip out. On the basis of the 43 cases he found, some of them cited above, Mr. Taylor calls them just the "tip of the iceberg of total abuses."
The irony is that it was just this March that Mr. Gore downplayed the need to reform Social Security. "I say," he told the New York Times, "if it ain't broke don't fix it. Shore it up the way we always have."
The system is pretty clearly broken. Unless Mr. Gore wants to keep handouts for sexual harassers in place, he better do more than shore up a system that makes it possible.
E-mail: smithk@twtmail.com

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