By Gretta J. Sancho, J.D.
Quiz 1: Sidney decides it is time for a dental checkup and makes an appointment with Dr. Bragdon. When she arrives at his office, she indicates on her Patient Registration and Health Record form that she has HIV asymptomatic HIV, but HIV nonetheless. Dr. Bragdon examines Sidney and diagnoses a cavity.
He then tells Sidney that pursuant to his infectious disease policy, he will not fill her cavity in his office, but would be glad to treat her in a hospital setting. He also explains that he will charge her the standard fee for filling a cavity as well as what the hospital charges for use of its facilities. Dr. Bragdon is violating the Americans with Disabilities Act (ADA) because, as the owner of a place of public accommodation (a dentist’s office), he is discriminating against Sydney on the basis of her disability.
Quiz 2: Communications, Inc., is not doing very well financially these days. Corporate officers have made it no secret layoffs are planned. Joan is one of the people who is laid off. This comes as a surprise, because her performance reviews, while not outstanding, were considered satisfactory. While in the restroom, Joan overhears a conversation between her supervisor and other managers. She hears someone remark that Communications is going to cut costs wherever it can, especially employee health care benefits. Joan now believes she was targeted for layoff because Communications did not want to face future medical bills associated with her son’s disability. Everyone (of importance) knows that Joan’s son has asymptomatic HIV. Joan has a chance of proving a case of employment discrimination: based on her association with a per son with a disability.
Answer to Quiz 1 and Quiz 2:
It depends on whom you ask. If you ask the Equal Employment Opportunity Commission and the U.S. Department of Justice, they will tell you the answer is “True”. But a growing number of courts will tell you the answer is “False”.
Regardless of who is asked, all will agree that Title I of the ADA prohibits employers from discriminating against an employee or an applicant because of their known relationship or association with a person with a disability. For example, an employer may not fire or refuse to hire a person because he or she has a spouse, child or other dependent who has a disability that is either not covered by the employer’s current health insurance plan or that may cause future increased health care costs.
Everyone will also agree that Title III of the ADA prohibits a place of public accommodation from discriminating in equal use of ser vices on the basis of disability. What is a place of public accommodation? Almost any business you can think of, that includes a professional office of a health care provider.
After Tom Hanks Oscar-winning performance in the movie Philadelphia, you probably will not find anyone willing to disagree that a person with AIDS is a person with a disability and entitled to ADA protection. The movie was based on an actual case in which back pay and $500,000 was awarded to the estate of an attorney who was fired because he had AIDS.
The disagreement involves whether people with HIV are legally disabled under the ADA. especially if they have no current physical symptoms.
Yes, HIV Is a Covered Disability
The ADA does not classify any disease or condition, including AIDS or HIV, as a per se disability All the Act says is that a disability is “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment, or (C) being regarded as having such an impairment” However, the EEOC, which is the agency charged with enforcing the employment provisions of the ADA published interpretive guidelines which specifically include HIV whether symptomatic or asymptomatic, among the types of diseases that constitute disabilities The Justice Department, which enforces the access to public accommodation provisions, has done the same in its regulations.
The way the EEOC, the Justice Department and some courts see it. Since the legislative history of the ADA expressly provides that a per son who has HIV infection, including asymptomatic HIV infection, has a disability covered by the ADA, that’s the way it should be. They also believe that the life activity of procreation the fulfillment of the desire to conceive and bear healthy children is substantially limited for an asymptomatic HIV-infected individual. In light of the significant risk that the AIDS virus may be transmit ted to a baby during pregnancy, HIV-infected individuals cannot. whether they are male or female. engage in the act of procreation with the normal expectation of bringing forth a healthy child. Of course, this analysis brings about another question: Is procreation a major life activity? A majority of the courts have answered, yes.
Similarly, it is not unreasonable to find a limitation of a major life activity in the fact that an asymptomatic HIV-infected individual’s inti mate relations are also affected by HIV infection. The life activity of engaging in sexual relations is threatened and probably substantially limited by the contagiousness of the virus
No Assumptions Can Be Made
But a growing number of courts are beginning to question the wisdom of the EEOC and Justice Department. From their standpoint, a finding of disability must be made on an individual-by-individual basis, That is, the underlying impairment must substantially limit a major life activity of the individual. This is not something that can be matter-of-factly assumed to be true.
For instance, an employee may have to testify that fear of transmit ting HIV to a child and fear that the child would lose its parent prevented the person from having children. These courts will insist that there be some ailment or condition that affect a person’s life on a daily basis.
To prove the existence of any Substantially limiting impairment, a person should be prepared to provide:
1. Evidence of his or her medical condition (at the time the alleged discrimination occurred), including:
a. the results of any tests for HIV infection:
b. medical diagnoses, and related medical reports; c. any medical restrictions placed on the individual or recommended by his or her physician or other health authority: d. any debilitation or other symptoms (such as skin lesions associated with Kaposi’s sarcoma, swollen lymph glands, fatigue or weight loss) being. experienced by the individual.
2. In case a person with asymptomatic HIV-infection thinks he or she has been regarded as having an impairment that substantially limits one of the person’s major life activities, evidence of the employer’s reactions to the per son’s condition, including:
a. whether the employee or applicant has been (allegedly due to an HIV-related condition) denied other employment or promotion opportunities, and if so, all pertinent facts;
b. information (including employer and third party statements) indicating that the employer regarded the person as physically unable to perform the job, as having a condition more severe than the condition the individual actually had, is posing a risk of contagion, or as posing a risk of future infection and/or debilitation.
Suppose you are not the employee but the employer. In fact, you were one of the Communications, Inc., managers in Quiz #2 and had to decide which employees to lay off. Suppose, also, that the conversation Joan overheard took place before the layoffs were announced and you know Joan heard what was said and she’s upset about it. You also know that there are other equally qualified people you would like to keep around other than Joan. But you also do not want to be the one responsible for getting an already-strapped company involved in an expensive lawsuit. What do you do? Refuse to treat persons with the asymptomatic HIV infection as individuals with a disability until they demonstrate that the infection substantially limits a major life activity? Or operate under the assumption that anyone who is known to be HIV-positive has a protected disability?
There is no easy answer, given the conflicting court decisions and the policies of enforcement agencies, Your safest bet is to follow the lead of the agencies responsible for enforcing the ADA until the courts make a final determination. Better safe than sorry.
By Gretta J. Sancho, J.D.