Indiana Law Review


The Development of AIDS Federal Civil
Rights Law: Anti-Discrimination Law
Protection of Persons Infected with

Human Immunodeficiency Virus

Donald H. J. Hermann*

Table of Contents

Introduction 784

I. Infection with Human Immunodeficiency Virus 785
II. HIV-Related Discrimination and Disability Law 787

III. Rehabilitation Act of 1973 789

IV. Extending Protection of Section 504 of the Federal

Rehabilitation Act to Persons with HIV Infection
or AIDS Diagnosis 791

A. Initial Commentary and Department ofJustice Opinion 791
B. The Arline Opinion ofthe United States Supreme Court

and the Second Department ofJustice Opinion 794
C. Case Law Extending Protection Under Rehabilitation Act

to HIV-infected Individuals 801

D. Individual with AIDS Diagnosis Is Handicapped: Chalk v.
United States District Courtfor the Central District

ofCalifornia 802

E. Asymptomatic HlV-Infection Individual Perceived as

Handicapped: Doe v. Centinela Hospital 805
F. Asymptomatic HIV-infected Individual Is Per Se

Handicapped: Thomas v. Atascadero Unified
School District , 807

V. Americans with Disabilities Act of 1990 808

VI. Pre-Bragdon v. Abbott Case Law Finding Persons with AIDS
and HIV-Infection Protected Under ADA 815

A. AIDS Diagnosis and HIV-Infection Treated as
a Presumed Disability 815

B. AIDS Diagnosis andHIVInfection Treated as a
Per Se Disability 816

C AIDS Diagnosis and HIV-Infection Treated as a Disability
Because ofPhysical Impairment 817

D. HIV-Infection Treated as Disability Because of
Infectiousness 819

* Professor of Law and Philosophy, Director of the Health Law Institute, DePaul
University. A.B., Stanford University, 1965; J.D., Columbia University, 1968; LL.M., Harvard

University; 1974; M.A., Northwestern University, 1979; Ph.D., Northwestern University, 1981;

M.A.A.H., School of the Art Institute of Chicago, 1993; M.L.A. (Cand.), University of Chicago.



784 INDIANA LAW REVIEW [Vol. 33:783

VII. Case Law Finding Persons with HIV-Infection Not
Protected Under the ADA 820

A. A Particularized Determination That Asymptomatic
HIVInfection Is Not a Disability 820

B. Asymptomatic HIVIs "Per Se " Not a Disability Under ADA:
Runnebaum v. NationsBank ofMaryland 822

VIII. States Supreme Court Finds Asymptomatic HIV Infection
an Impairment That Can Substantially Limit Major
Life Activities of an Individual 839

Conclusion: Same Remaining Issues 859

Introduction

Almost as quickly as Acquired Immune Deficiency Syndrome (AIDS) and
Human Immunodeficiency Virus (HIV) infection came to be recognized as a
significant medical problem, legal and political authorities recognized that the

health care crisis raised significant problems that needed to be addressed by both

the public health law and civil liberties law. The public health law concerns
were readily apparent in the form of a need for statutory authority to achieve

epidemiological objectives, to halt transmission through education and voluntary

compliance, and to employ coercive measures where necessary. At the same
time, given the potential for discrimination for a medical condition that

disproportionately affected minority communities including homosexuals, racial

minorities, and intravenous drug users required protective measures aimed at
confidentiality and informed consent for HIV-antibody testing. While the
individual states developed special legislation that attempted to reconcile public

health and civil liberty concerns, the need for national civil rights legislation

protecting those affected by HIV-infection and AIDS became increasingly
apparent. Initial protection from discrimination was provided to individuals with
AIDS and HIV infection by inclusion within the category of persons protected
by the Rehabilitation Act of 1973. However, protection was largely limited to
prohibitions of discrimination in federal employment and to those employed in
organizations receiving federal funding. Some consideration was given to
enacting legislation specifically protecting those with HIV-infection or AIDS
from unjustified discrimination; however, the political obstacles to enacting

specific AIDS-related civil rights legislation appeared formidable. Therefore, the

decision was made to develop broad general legislation protecting the disabled
from inappropriate discrimination and within this general anti-discrimination

legislation to provide protection to persons with AIDS or HIV. This approach
to a general anti-discrimination statute resulted in the Americans with Disability

Act (ADA). While other legislation such as the Fair Housing Act and the
education of the Handicapped Act were interpreted to provide protection for

certain specific groups of persons with AIDS and HIV-infection, the general
population affected by these conditions have found federal protection fi*om

discrimination under the terms of the Rehabilitation Act of 1973 and the

Americans with Disabilities Act.

Ratherthan specifically identify particular disease conditions which gave rise



2000] AIDS FEDERAL CIVIL RIGHTS LAW 785

to anti-discrimination protection, the American with Disabilities Act took the
form ofgeneral legislation and adopted the broad textual language including the

use of such terms as "disability" and "physical or mental impairments" and

"substantially limits one or more major life activities."^ Such broad textual
language has resulted in the development of a significant history of

administrative agency legal analyses and judicial opinions addressing whether

the medical condition and the resulting effects of AIDS and HIV infection
qualify the infected individual for protection under the ADA. Issues of
legislative history, implementing agency authority, and judicial approaches to

statutory interpretation along with medical and scientific evidence have provided

the rich texture for a complex history ofthe undertaking to provide national civil

rights protection to persons with AIDS and HIV-infection, whether symptomatic
or asymptomatic. Although the United States Supreme Court only recently has

undertaken an effort to determine the extent ofthe protection provided to persons

with AIDS and HIV infection, the Court's opinion did not definitely answer the
question of whether all persons with AIDS or HIV infection qualify for
protection under the American with Disabilities Act. Broad issues remain as to

whether Congress achieved its intent to adopt effective national civil rights

legislation protecting all persons with AIDS or HIV infection when it enacted the
Americans with Disabilities Act in 1990.

I. Infection with Human Immunodeficiency Virus

The reported history of HIV and the resulting condition of AIDS began in
1 98 1 with articles in medicaljournals describing outbreaks ofpneumonitis carina

pneumonia and kaposi's sarcoma in homosexual men with apparently
malfunctioning immune systems.^ By 1983, what we now know as HIV was
isolated and determined to be the causal agent in producing AIDS.^

HIV infection results in selective depletion of the human body's T-
lymphocytes or CD4+ cells, the helper white blood cells, that are a primary part
of the human's immune system.'* The destruction of the CD4-f- cells and the
resulting decline in the functioning of the immune system makes the body
susceptible to secondary infection.

1. Americans with Disabilities Act, 42 U.S.C. §§ 12,101-12,213 (1994& Supp. Ill 1997).

2. See Michael S. Gottlieb et al., Pneumocystis Carinii Pneumonia and Mucosal

Candidiasis in Previously Healthy Homosexual Men: Evidence of a New Acquired Cellular

Immunodeficiency, 305 NEW Eng. J. MED. 1425 (1981); Kenneth B. Hymes et al., Kaposi's
Sarcoma in Homosexual Men—A Report ofEight Cases, LANCET, Sept. 19, 1981, at 598.

3. See Francoise Barre-Sinoussi et al.. Isolation ofa T-Lymphotropic Retrovirusfrom a

Patient at Risk for Acquired Immune Deficiency Syndrome (AIDS), 220 Sci. 868 (1983); John

Coffin et ah. Human Immunodeficiency Viruses, lil SCI. 697 (1986); Robert C. Gallo et al..

FrequentDetection andIsolation ofCytopathic Retrovirus (HTL V-III)from Patients withAIDSand

at Riskfor AIDS, 224 SCI. 500 (1984).

4. See Jay A. Levy, Human Immunodeficiency Viruses andthe Pathogenesis ofAIDS, 26

1

JAMA 2997 (1989).



786 INDIANA LAW REVIEW [Vol. 33:783

During the early history of the AIDS epidemic the course of the disease
complex was conceptualized as involving acute or primary infection, initial
infection followed by a latent period after which activation ofviral reproduction
resulted first in AIDS-related complex (ARC) leading to systemic AIDS.^ The
initial infection is often accompanied by fevers, skin eruptions, myalgias,

arthrolgious, malaise, swollen glands, sore throats, gastrointestinal symptoms,

and headaches.^ These physical symptoms will often subside for a significant
period oftime. However, when subsequent viral replication becomes significant,
the patient often experiences persistent generalized lymphadenopathy (swollen

glands) as well as fatigue, skin rash, fever, diarrhea, muscle pain, night sweats,

and weight loss.' Patients with these symptoms formerly were diagnosed as
having ARC* A person can be diagnosed as having AIDS when the person's
CD4+ count declines below 200 cells/MM3 of blood or when CD4+ cells
comprise less than fourteen percent of the normal total of lymphocytes.^ With
AIDS, the various physical symptoms described above continue, the CD4+ cell
count further declines, and the patient experiences various opportunistic

infections and diseases such as Pneumocystis, carinii pneumonia, kaposi's

sarcoma, and non-Hodgkin lymphoma.
'°

Increasingly HIV/AIDS is understood as a continuing spectrum of infection
following an established progression which may be delayed by available
medication.'^ The initial progression of infection may not be accompanied by
observable physical symptoms and, thus, is often denominated as the
"asymptomatic" phase. What was earlier thought of as a latency period oftime
when the virus was inactive, is now understood to involve a migration of the
virus from the circulatory system into the lymph nodes with a disappearance of

overt physical symptoms, but with measurable viral replication. '^ However, even
during this so-called asymptomatic stage, many persons continue to manifest
bacterial infections, skin disorders, and lymphadenopathy.'^

By mid- 1 997, the CDC reported that 6 1 2,078 individuals had been diagnosed

5. See William A. Haseltine, Silent HIVInfections, 320 New Eng. J. Med. 1487 (1989).
6. See Robert R. Redfield & Donald S. Burke, HIVInfection: The Clinical Picture, 259

Sci.Am.90(1988).

7. See Yarchoan & Pluda, Clinical Aspects ofInfection with AIDS Retro Virus, in AIDS:
Etiology, Diagnosis, Treatment and Prevention 1 12 (DeVita et al. eds., 2d ed. 1988).

8. See Koenig & Fauci, AIDS Immunopathogenesis and Immune Responses, in AIDS:
Ethiology, Diagnosis, Treatment and Prevention, supra note 7, at 61-71.

9. See U.S. Dep't ofHealth and Human Services, 1993 Revised Classification Systemfor
HIV Infection and Expanded Surveillance Case Definitional for AIDS Among Adolescents and

Adults, 41 Morbidity & Mortality Weekly Rep. No. RR-17, Dec. 18, 1992.
1 0. See The AIDS KNOWLEDGE BASE 4. 1 -9 (P.T. Cohen et al eds., 2d ed. 1 994).

11. See Michael S. Saag, Clinical Spectrum ofHuman Immunodeficiency Virus Diseases,

in AIDS: ETIOLOGY, DIAGNOSIS, TREATMENT AND PREVENTION 205-06 (DeVita et al. eds., 4th ed.

1997).

1 2. See The AIDS KnowleeXjE Base, supra note 1 0, at 4. 1 -4, 4.1-8.

13. Seeid.dXA.\-9.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 787

with AIDS in the United States.^^ In 1996, the CDC estimated that there were
239,000 persons living with an AIDS diagnosis.'^ The CDC estimated that there
are more than one million HIV-positive people living in the United States, this
means that there were more than 750,000 HIV-infected persons who may have
been asymptomatic.'^

II. HIV-Related Discrimination AND Disability Law

Discrimination against HIV-infected persons has its origins in a complex of

fears, phobias, and prejudices. Fear of contagion is the most often expressed

concern by those accused ofdiscrimination. Nevertheless, the fact that persons

with HIV-infection may be disproportionately discriminated against as compared
to members ofotherwise discriminated against groups, such as gay men or people
of color, is often cited as a basis for the need of legal protection against

discrimination.

The development of legislation to combat discrimination against HIV-
infected persons has an equally multi-faceted objective. Such laws have the

purpose ofending discrimination against persons with a significant disability and

bringing such persons within the economic and social mainstream ofAmerican
life.''

Another significant concern about discrimination against HIV-infected

persons arose out ofthe public health strategies developed to trace and stop the

spread ofHIV. Educational efforts to change behavior to prevent the transfer of

the virus fi'om one person to another and blood testing programs, aimed at

informing individuals oftheir infected status, required the voluntary involvement

of potentially infected persons who would be discouraged from such voluntary
testing if they feared possible discrimination based on their infected status by
those who might learn of it. This concern was reflected in the 1 988 Report ofthe
Presidential Commission on the Human Immunodeficiency Virus Epidemic that
reported:

HIV-related discrimination is impairing this nation's ability to limit the

spread ofthe epidemic. Crucial to this effort are epidemiological studies

to track the epidemic as well as the education, testing, and counseling of

those who have been exposed to the virus. Public health officials will
not be able to gain the confidence and cooperation of infected

individuals or those at high risk for infection ifsuch individuals fear that

they will be unable to retain their jobs and their housing, and that they

will be unable to obtain the medical and support services they need

because of discrimination based on a positive HIV antibody test.'^

1 4. See U.S. Dep't OF HEALTH AND HUMAN SERVICES, HIV/AIDS, June 1 997, at 3.
1 5. "See U.S. Dep't of Health and Human Services, HIV/AIDS, Dec. 1 996.

16. 5ee U.S. Dep't OF Health and Human Services, HIV/AIDS, Feb. 1993, at 15.
17. See S. Rep. No. 1 16, at 2 (1989).

1 8

.

Reportof the Presidential CommissionontheHuman Immunodeficiency Virus
Epidemic 19 (1988).



788 INDIANA LAW REVIEW [Vol. 33:783

Both houses of Congress relatively quickly endorsed the conclusion of the
Presidential Commission that:

As long as discrimination occurs, and no strong national policy with
rapid and effective remedies against discrimination is established,

individuals who are infected with HIV will be reluctant to come forward
for testing, counseling, and care. This fear of potential discrimination

. . . will undermine our efforts to contain the HIV epidemic and will
leave HIV-infected individuals isolated and alone.

'^

By the time ofthe issuance ofthe Report ofthe President's Commission on
the Human Immunodeficiency Virus, the reality ofdiscrimination against persons
with AIDS and HIV infection was manifest. Children were excluded from
schools because oftheir AIDS diagnosis,^^ tenants were discriminated against in
housing because oftheir HIV infection,^' patients were denied medical treatment
because oftheir sero-positive status,^^ and individuals were denied employment
or fired because they were determined to be at risk or to have AIDS.^^ Advocates

and public interest groups sought to protect persons with AIDS as a basis in
existing law or suggested the passage of new legislation. Some states passed
legislation to protect the rights of individuals from compelled testing and to

provide protection of the confidentiality of HIV testing records or AIDS
diagnostic records.^"* At the federal level, civil rights laws provided one

alternative. Neither homosexuals nor intravenous drug users, two groups that
experienced a high rate of HIV infection, were protected by existing anti-
discrimination laws. While there were some efforts to enact a specific HIV-
related civil rights law,^^ there were strong views in Congress, voiced by such

persons as Senator Helms, which argued against creating any laws creating

special rights for persons with AIDS. The public hysteria about AIDS made
passage ofany protective civil right legislation at the federal level unlikely if not

19. S. Rep. No. 1 1 6, at 8 ( 1 989) (quotingReportof thePresidential Commissiononthe

Human Immunodeficiency Virus Epidemic 1 19 (1988)); H.R. No. 101-485, at 31 (1990).
20. See, e.g.. In re District 27 Community Sch. Bd., 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986)

(involving suit by school age HIV-infected child excluded from public school).

21. See, e.g., Poff v. Caro, 549 A.2d 900 (N.Y. Super. Ct. Law Div. 1987) (refusal to rent

to an individual believed to be at high risk for AIDS).

22. See, e.g. , Rosaline Gagliano, When Health Care Workers Refuse to TreatAIDSPatients,

21 J. Health & Hosp. L. 225 (1988).
23

.

See, e.g. , Jane Howard Carey & Megan M. Arthur, The Developing Law on AIDS in the
Workplace, 46 Md. L. Rev. 284 (1987).

24. See, e.g, 1987 Ala. Act 574; Cal. HEALTH & SAFETY CODE § 199.20-199.23 (West
1989); Fla. Stat. § 381.609 (West 1989); Haw. Rev. Stat. ch. 325; III. Rev. Stat, ch 1 1

1

V2, 1

7408(1993);MEREV.STAT.tit.T,§ 17001; Mass. Gen. Laws Ann., ch. Ill § 70 (West 1989);
N.Y. Pub. Health Law § 2782 (McKinney 1994); 1987 OR. Laws ch. 600; R.I. LAWS § 5-5-37.3

(1999); Wis. Stat. Ann. §§ 103.15, 146.0231 146.025 (West 1989).

25. See, e.g, S. 1575, 100th Cong. (1987).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 789

impossible. Instead, attention was directed at finding a basis for anti-
discrimination protection in existing law. This view, which ultimately prevailed,

was adopted in the 1988 report of the President's Commission that urged that
"persons with HIV infection should be considered members of the group of
persons with disabilities, not as a separate group onto themselves. Persons with

HIV infection deserve the same protections as all other persons with disabilities,
including those with cancer, cerebral palsy and epilepsy."^^

Even prior to the recommendations of the Presidential Commission,
commentators urged the use ofhandicap legislation,^^ particularly section 504 of

the Federal Rehabilitation Act of 1 973,^^ that prohibited handicap discrimination,

and state laws that protected handicapped individuals from employment
discrimination.^' Handicap discrimination law seemed an appropriate basis for

protection for HIV-infected individuals because these statutes, particularly the

federal handicap law, were given broad interpretation by the courts. The courts'
interpretations extended protection to individuals vulnerable to discrimination

due to impairments that resulted in shunning and avoidance by members of the
general society

.^^

III. Rehabilitation Act OF 1973

The history of disability law is a relatively short one, beginning
approximately twenty-five years ago with the passage ofthe Rehabilitation Act

of 1973.^' However, the first major federal statute protecting individuals with

disabilities was the Social Security Act of 1935^^ that included provisions
providing medical and therapeutic services for crippled children. Other

legislation was enacted that provided rehabilitation services aimed at
employability," handicap accessability to federal buildings,^"* and mass

26. Reportof the Presidential CommissionontheHuman Immunodeficiency Virus
Epidemic 121 (1988).

27. See, e.g. , Arthur S. Leonard, AIDSandEmploymentLaw Revisited, 1 4 Hofstra L. Rev.

11 (1985); Arthur S. Leonard, Employment Discrimination Against Persons with AIDS, 10 U.

Dayton L. Rev. 681 (1985) [hereinafter Leonard, Employment Discrimination].

28. 29 U.S.C. §794(1994).

29. See, e.g., California Fair Employment and Housing Act (FEHA), Cal. Gov't Code §
12920 (West 1992).

30. See, e.g. , Reynolds v. Brock, 8 1 5 F.2d 57 1 (9th Cir. 1 987) (epilepsy a handicap); Duran

V City of Tampa, 430 F. Supp. 75 (M.D. Fla. 1977) (individual formerly diagnosed with epilepsy

protected because he was regarded as having an impairment); see also Rehabilitation Act of 1973,

29 U.S.C. §§ 790-96 (1994) (epilepsy treated as handicap).

31. 29 U.S.C. §§ 790-96.

32. 42 U.S.C. §§301-06.

33. See LaFollitte-Barden Act, Pub. L. No. 78-1 13, 57 Stat. 374 (1943), amended by the

Vocationsd Rehabilitation Amendments, Pub. L. No. 83-565, 68 Stat. 652 (1954) (current version

at29U.S.C.§37-42).

34. See Architectural Barriers Act of 1 968, 42 U.S.C. § § 4 1 5 1 -57.



790 INDIANA LAW REVIEW [Vol. 33:783

transportation.^^

The most significant initial disability legislation that has had importance in
dealing with HIV-related discrimination is the Rehabilitation Act of 1 973, which
aimed at handicap discrimination in programs involving federal funding.^^ The
three major provisions of the statute relating to different aspects of federal

involvement in programs included: section 501 which established non-
discrimination and affirmative action as employment requirements for federal
employers;^^ section 503 which mandated nondiscrimination and affirmative

action in the employment policies offederal contractors;^* and section 504 which
mandated nondiscrimination and reasonable accommodation by recipients of

federal financial assistance, including educational programs, public

accommodations, transportation, and health and social services.^^

The 1973 Rehabilitation Act protected handicapped individuals who were
defined as individuals who could benefit from rehabilitation services/^ The 1 974
amendments to the Rehabilitation Act expanded the definition of handicapped
individuals to include any person who (i) has a physical or mental impairment
which substantially limits one or more of such person's major life activities, (ii)
has a record of such an impairment, or (iii) is regarded as having such an

impairment/^

Initially, the passage of the Rehabilitation Act was not followed by strong
enforcement. Public pressure compelled the President issue an Executive Order

in 1976."*^ This order mandated that the Department of Health, Education and

Welfare (HEW) issue regulations implementing the provisions of the
Rehabilitation Act. In 1978, HEW promulgated regulations implementing the
Rehabilitation Act of 1973 as amended.'*^

The statute's definitional terms were refined by the HEW.'*'* The
promulgated regulations defined a "physical or mental impairment" as involving

the following:

(A) any physiological disorder or condition, cosmetic disfigurement,

or anatomical loss affecting one or more ofthe following body
systems: neurological, musculoskeletal; special sense organs,

respiratory, including speech organs; cardiovascular;

reproductive, digestive, genito-urinary; hemic and lymphatic;

skin; and endocrine; or

35. See Urban Mass Transportation Assistance Act of 1970, 49 U.S.C. §§ 1601-18.

36. See 29 U.S.C. §§ 790-96.

37. Seeid.^l9\.

38. See id. § 793.

39. See id § 794.

40. See id § 706.

41. 5ee /V/. § 706(7)(B).

42. Exec. Order No. 1 1,914, 41 Fed. Reg. 17,871 (1976).

43. See Dep't of Health, Educ, and Welfare, 43 Fed. Reg. 2132 (1978).

44. See Dep't of Health, Educ, and Welfare, 42 Fed. Reg. 22,676 ( 1 977).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 79

1

(B) any mental or psychological disorder, such as mental

retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities/^

The analysis published along with these regulations provided a list of covered
diseases and conditions with a warning that the list was not comprehensive.*^
The listed diseases and conditions included ''orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple

sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness,

and . . . drug addiction and alcoholism."*^

The HEW regulations further specified that major life activities include, but
are not limited to, "functions such as caring for one's self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working."**

The term "substantially limits" was not defined in the regulation because it was
concluded that an operating definition was not possible.*^

IV. Extending Protection of Section 504 of the Federal
Rehabilitation Act to Persons with HIV Infection

OR AIDS Diagnosis

A. Initial Commeniafy and Department ofJustice Opinion

The initial arguments for extension ofthe protection ofindividuals with HIV
infection or AIDS under the disability discrimination prohibitions of the
Rehabilitation Act of 1973 were presented in law reviews. Arthur Leonard of

New York Law School published an article in 1985 entitled Employment
DiscriminationAgainst Persons withAIDS^^ Leonard argued an individual with
AIDS should be held to be included within the statute's first definition as a
person who "has a physical or mental impairment which substantially limits one
or more ofsuch person's major life activities."^' According to Leonard, infection
with HIV constitutes a physical impairment that affected the person's
"ability ... to fight infection and preserve health" that is logically a major life

function.^^

Leonard also argued that a person with AIDS was protected within the third
alternatives definition of handicapped individual in the Rehabilitation Act that

protects a person who "is regarded as having such a impairment."^^ According

45. 45 C.F.R. 84.3a)(2)(i) (1999); see also 28 C.F.R. 41.31(b)(1) (where the Department

of Justice promulgated identical defmition regulations implementing Executive Order 12,250).

46. 5ee 45 C.F.R. 84, app. A.

47. Id.

48. 45 C.F.R. 84.3 a)(2)(ii); see also 28 C.F.R. 41.21 (b)(2).

49. '45 C.F.R. 84, app. A at 310.
50. Leonard, Employment Discrimination^ supra note 27.

51. Id, at 691 (quoting 29 U.S.C. § 706(8)(B)(i) (1994)).

52. M. at 696.

53. 29 U.S.C. § 706(8)(B)(iii).



792 INDIANA LAW REVIEW [Vol. 33 :783

to Leonard, persons who may or may not be infected with HIV, and who were
denied employment because of the employer's perception that the person was
infected with the virus that causes AIDS, should be held to be protected because
such a person falls within the provision of the statute that protects persons who
are regarded as handicapped because they are perceived as having AIDS. Thus
according to Leonard, asymptomatic HIV-infected individuals, whether or not

they were in fact substantially impaired, were protected by legislation whose
purpose was to prevent discrimination that took the form of "animus against a
class of individuals which unfairly ignores their individual qualifications and is
based on prejudicial beliefs about the class."^* Leonard's understanding of the
provisions of the Rehabilitation Act, as well as his understanding of AIDS,
allowed him to dismiss the need to establish an impairment resulting from HIV
infection at the asymptomatic stage, and to avoid the need to identify any specific

life activity significantly impacted as a result of HIV infection. For Leonard, a
person who was thought to be infected with HIV was a person thought to have
AIDS, a condition by its very nature affected the person's ability to fight
infection or preserve health.

A very different view ofthe coverage ofthe Federal Rehabilitation Act was
taken in the 1986 Memorandum from Assistant Attorney General Cooper on the
application of section 504 of the Rehabilitation Act to persons who have or are
regarded as having AIDS, ARC, or who test positive for "AIDS antibodies."^^
The 1986 Department ofJustice ("DOJ") Office ofLegal Counsel Memorandum
concluded that section 504 prohibited discrimination based on the disabling

effects ofAIDS and the related conditions that a person with AIDS can have. On
the other hand, the DOJ Memorandum concluded that an individual's real or
perceived ability to transmit "the disease" [virus] did not constitute a handicap,

and that discrimination on such basis did not fall within section 504.

The 1986 DOJ Memorandum took specific care to distinguish persons with
AIDS from those merely infected with the "AIDS virus" based on the formal
CDC case definition of AIDS, as of August 1, 1985:

A person is not considered to have AIDS merely because tests show him
to be generating antibodies to the to the AIDS virus, i.e., to be
"seropositive." Instead a person is not considered to have AIDS even if
he is seropositive, and also displays a number ofsymptoms characteristic
of the disease. Rather, an essential element of the definition of AIDS
used for reporting purposes by the Centers for Disease Centers ("CDC")
is afflicted with one or more of the opportunistic diseases that take
advantage of the patient's suppressed immune systems.^^

The 1986 DOJ Memorandum easily concluded that the disabling effects of

54. Leonard, Employment Discrimination, supra note 27, at 696.

55. Memorandum from Assistant Attorney General Cooper on Application of Section 504

ofRehabilitation Act to persons with AIDS, Daily Law Rep. (BNA) No. 1 22 at D- 1 (June 25, 1 986)
[hereinafter DOJ Memorandum].

56. DOJ Memorandum, supra note 55, at nn. 16, 17 and accompanying text.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 793

AIDS qualified it as a handicap. Citing the HHS interpretative regulations, the
DOJ Memorandum determined that AIDS is a "physiological disorder or
condition" affecting the "hemic [blood] and lymphatic" systems and possibly

affecting the brain and central nervous system as well.^^ The DOJ Memorandum
went on to conclude that this impairment substantially limited a major life
activity; namely, the inability of"resisting disabling and ultimately fatal diseases,

and may directly cause brain damage and disorders . . . [and] by definition
involves the presence of an opportunistic disease, such as P. carinii pneumonia,

that frequently will entail substantial limitations on major life activities."^*

While not specifically using the terminology "asymptomatic" in referring to

a class of HIV-infected persons, the DOJ Memorandum directed considerable
attention to what it characterized as an "immune carrier" or a person who was in
the stage of the disease progression in which the infected person was able "to
communicate the disease to another person" without otherwise experiencing "the

disability effects" of AIDS.^^ The medical consensus today is that there are no

immune carriers ofthe HIV virus. Therefore, we understand that a person who
tests positive for the HIV virus is "infected" and "infectuous." Previously, some
medical authorities maintained that a positive HIV-antibody test meant only that

the individual had been exposed to the virus. Ultimately, the DOJ Memorandum
asserts there is no distinction to be drawn between an immune carrier and a
carrier who will subsequently develop the diseases characteristic symptoms.^^
The DOJ Memorandum concluded that an "immune carrier" would not have a
physical or mental impairment: "[T]he carrier's condition—^the presence within
his body ofthe active infectious agent—has no physical consequence for him."^^
Moreover, the DOJ Memorandum went on to argue that even ifthe carrier ofthe
virus had an impairment it does not substantially limit any of the major life

activities listed in the "HHS regulation

—

i.e., caring for [him]self, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working."^^ Specifically, the DOJ Memorandum rejected the fact that the carrier
of the "AIDS virus" was subjected to social or professional discrimination.
According to the view ofthe DOJ Memorandum, a person cannot be regarded as
handicapped simply because others shun him; otherwise, personal traits such as

ill-temper and poor personal hygiene would constitute a handicap in

contradiction to the applicable HHS regulations.^^
The 1986 DOJ Memorandum drew a significant distinction between HIV-

infected persons, for example distinguishing those with physically apparent

symptoms and those whose infection was not apparent to the casual observer, in
applying the third definitive category of perceived or regarded as having an

57. Id (applying 45 C.F.R. § 84.3(j)(2)(i) (1984)).

58. Id at n.65 and accompanying text.

59. Id. at n.67 and accompanying text.

60. See id. at n.71 and accompanying text.

61

.

Id. at n.66 and accompanying text.

62. Id (applying 45 C.F.R. 84.3(j)(2)(ii) (1986)).

63. See id (citing 45 C.F.R. 84, App. A at 3 1 0).



794 INDIANA LAW REVIEW [Vol. 33:783

impairment. Even though an HIV-infected person ["a person who tests positive
for HTLV - - III/LAV antibodies"] does not have an impairment that
substantially limits any major life activity, the DOJMemorandum does conclude:
"this person may still be handicapped under section 504 if he is perceived as
suffering from the disabling effects of AIDS or ARC."^"* However, the DOJ
Memorandum reiterates that neither the ability to communicate the virus nor the
incorrect belief that the individual can communicate the virus constitute a
handicap. The DOJ Memorandum goes on to concede that in certain
circumstances a person who is not infected with HIV may be protected by the
Rehabilitation Act even though they clearly do not have any impairment that
substantially limits a major life activity. According to the DOJ Memorandum,
"[I]fsuch an individual is inaccurately perceived as suffering from the disabling

effects of AIDS or ARC—^perhaps because of membership in a high risk
groups—^this perceived impairment would constitute a handicap."^^

B. The Arline Opinion ofthe United States Supreme Court and
the Second Department ofJustice Opinion

The United States Supreme Court in 1987 decided the case ofSchoolBoard

ofNassau County, Florida v. Arline.^ The Court held that a school teacher
diagnosed with contagious tuberculosis was a "handicapped individual" within
the meaning of section 504 ofthe Rehabilitation Act of 1973.^^ While the Court
did not specifically address the subject ofAIDS or HIV infection,^* the opinion
in Arline played a pivotal role in the development of federal disability law as

applied to AIDS and HIV infections because ofthe communicable nature ofHIV.
Gene Arline, an elementary school teacher, was discharged in 1979 by the

School Board ofNassau County that employed her after she experienced a third
relapse of tuberculosis within a two year period.^' Prior to being terminated,

Arline had twice been suspended with pay in 1978 after testing positive for

tuberculosis. At the close ofthe 1978-1979 school year, Arline was discharged
because of her medical condition.'^

While concluding that the plaintiffsuffered a handicap, the district court held

that she was not a "handicapped person" within the meaning ofsection 504 ofthe
Rehabilitation Act. The district court found it "difficult ... to conceive that
Congress intended contagious diseases to be included within the definition of a

handicapped person."^' The district court went on to hold that even if a person
with a contagious disease could be deemed a handicapped person, Arline was not

64. Id. (applying 29 U.S.C. § 706(7)(B)(iii)).

65. M at n.75 and accompanying text.
66. 480 U.S. 273 (1987).

67. 29 U.S.C. §794(1994).

68. See Arline, 480 U.S. at 288.

69. See id at 276.

70. See id

71. Id. at 277 (citation omitted).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 795

qualified to teach because she had a contagious disease that might be

communicated to her students or fellow teachers.^^

On appeal, the Court ofAppeals for the Eleventh Circuit reversed the district
court decision and held that a person with a contagious disease is handicapped

within the meaning of section 504 of the Rehabilitation Act7^ The court of
appeals remanded the case for findings with respect to the questions whether

there were actual risks of infection that would preclude Arline from being
qualified for the teaching job, and if so, whether the school could reasonably

accommodate her in a non-teaching job or other position.
Affirming the Eleventh Circuit, the United States Supreme Court (7-0) held

that Arline was handicapped within the meaning of section 504 of the
Rehabilitation Act.^"* The Court's opinion directed attention at the regulations

promulgated by the United States Department of Health and Human Services
(HHS) that define the terms used in the Rehabilitation Act's statutory definitions
of handicapped individuals, specifically "physical impairment" and "major life

activities."^^ The Court noted that impairment is defined as including any
physiological disorder or condition, cosmetic disfigurement, or anatomical loss

which affects one or more specified body systems/^ The Court also took note
that specified major life activities include "functions such as caring for one's

self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working."^^

The Court concluded that Arline "had a physical impairment," as that term
is defined in the Department ofHealth and Human Services Regulation because
she had a physiological disorder or condition that affected her respiratory

system.^* The fact that Arline was hospitalized in 1957 because of the same
impairment was sufficient to establish that one or more ofher major life activities
were substantially limited by her impairment, and her previous hospitalizations

also established that Arline had a record of such impairment within the

definitional terms of the Rehabilitation Act.

The defendant school board conceded that a contagious disease could
constitute an impairment to the extent that a person's physical or mental

capacities were diminished, and further conceded that Arline's hospitalization in

1975 for tuberculosis established a record ofphysical impairment. However, the

defendant argued that this impairment and record of impairment were irrelevant

since Arline was terminated, not because of her diminished physical or mental
capacity, but because of the threat of contagion that her tuberculin condition

posed to others.

72. See id.

73. See Arline v. School Bd. ofNassau County, 772 F.2d 759 (1 1th Cir. 1985), aJTd, 480

U.S. at 273.

74. Se,e Arline, 480 U.S. at 273.

75. Id at 281 (citing 45 C.F.R. § 84.30X2)0), 00 (1984)).
76. See id at 280 (citing § 84.30)(2)(i)).

77. Id (citing § 84.30)(2Kii)).

78. Mat 282.



796 INDIANA LAW REVIEW [Vol. 33 :783

The Court majority rejected the School Board's arguments on the basis that
the unobservable effects of a contagious or communicable disease on an
individual cannot be meaningfully distinguished from the disease's physical
effects on the infected person.^^ The Court reasoned that Arline's contagiousness
and her physical impairment resulted from the same condition and that it would
be unfair to allow employers to rely on a distinction between the effects of a

disease on a patient and the effects of the disease on others to justify
discrimination. The Court noted that prejudicial attitudes, ignorance, myths, and
fears about disability, disease, and contagiousness were meant to be eliminated
by the Rehabilitation Act's enforcement based on reasoned and medically sound
judgments. The Court emphasized, "[T]he fact that some persons who have
contagious diseases may pose a serious health threat to others under certain
circumstances does notjustify excluding from the coverage ofthe Act all persons

with actual or perceived contagious diseases."^^

Turning to the question of whether Arline was otherwise qualified as an
elementary school teacher, the Court found a need to remand the case to the

district court for a determination as to whether Arline was otherwise qualified.
The Court provided some guidance by instructing the district court that in making
findings offact with regard tojob qualification, the district court should normally

defer to the reasonable judgments of public health officials.^* The Court made
it clear, however, that a person who poses a significant risk ofcommunicating on
infectious disease to others in the workplace will not be found qualified for

employment if reasonable accommodation would not eliminate that risk.*^ On
remand, the district court held that Arline was an otherwise qualified person
under the Rehabilitation Act and ordered that she be reinstated to her position as

a school teacher.*^

Even at the time that Arline was being argued in the Supreme Court, an effort

was made to determine the significance ofthe opinion for persons with AIDS and
HIV infection. In fact, the question ofwhether AIDS constitutes a handicapped
underthe Rehabilitation Act implicitly was raised by the United States, appearing
as amicus curiae. The Solicitor General argued that it is possible for an
individual to be a carrier of a disease, "that is, to be capable of spreading a

disease without having a 'physical impairment' or suffering from any symptoms
associated with the disease."** Asserting that this was an accurate description of
carriers of the "AIDS virus," the Solicitor General argued that discrimination
solely on the basis of contagion could never constitute discrimination on the
basis of handicap. This is, of course, a central argument made in the 1986
Memorandum ofthe Department ofJustice's Office ofLegal Counsel.*^ Both the

79. See id

80. /f/. at 285.

81. See id. at 2U.

82. See id

83. See Arline v. School Bd. ofNassau County, 692 F. Supp. 1286 (M.D. Fla. 1988).

84. Arline, 480 U.S. at 282 n.7 (citation omitted).

85. See supra notes 55-65 and accompanying text.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 797

position of Solicitor General and the 1986 DOJ Memorandum were based on
what is known to be the mistaken position that there are carriers ofHIV who are
not themselves infected and experiencing the effects of such infection on the

compromise of their immune system and reduction in their white blood cell
count. The Court, however, found it unnecessary to address the Solicitor
General's argument because the disease at issue in Arline, tuberculosis, involved

both physical impairment and contagiousness. Thus, the Court concluded, "[W]e
therefore, do not reach the question whether a carrier of a contagious disease

such as AIDS could be considered to have a physical impairment, or whether
such a person could be considered, solely on the basis of contagion, a

handicapped person as defined by the [Rehabilitation] Act."*^

The Legal Counsel's office ofthe Department of Justice was asked in 1988

to revisit the question ofthe applicability ofsection 504 ofthe Rehabilitation Act
of 1973 to persons infected with HIV in light ofthe opinion ofthe United States
Supreme. In a memorandum ofSeptember 27, 1 988, an opinion was offered that
section 504 protects symptomatic and asymptomatic HIV-infected individuals

against discrimination in any covered program or activity on the basis of any

actual, past or perceived effect of HIV infection that substantially limits any
major life activity (1) in the non-employment context, so long as the HIV
infected individual is "otherwise qualified to participate in the program or

activity; and (2) in the employment context so long as the HIV infected
individual is able to perform the duties ofthejob and does not constitute a direct

threat to the health or safety of others.*^ This latter distinction reflects the terms

of the Civil Rights Restoration Act which replaced the "otherwise qualified"

standard with the formulation set out above.^*

The 1986 DOJ Memorandum specifically supercedes the 1986 opinion from
Charles Cooper.*^ Persons with HIV infection are characterized as either
symptomatic HIV-infected individuals, including persons with AIDS or ARC, or
asymptomatic HIV-infected individuals.^ The memorandum adopts the position
that available medical information established that HIV infection is a physical
impairment which in any given case may substantially limit a person's major life
activities; in addition, the memorandum recognized that others may regard an
HIV-infected person as being so impaired.^' The memorandum also responded
to the issue raised by the discussion in the Arline opinion of whether there are

carriers of the "AIDS virus" that do not have any physical impairment: "By

86. Arline, 480 U.S. at 282 n.7.

87. See Memorandum from Acting Assistant Attorney General Douglas Kamiec on

Application of Rehabilitation Act's Section 504 to HIV-infected Persons, Daily Law Rep. (BNA)

No. 195 at D-1 (Oct. 7, 1988) [hereinafter DOJ Memorandum-II].

88. Civil Rights Restoration Act of 1987, Pub. L. No. 100-259 § 9, 102 Stat. 28, 31-32

(1988) (amending 29 U.S.C. § 706) (precluded attempt to remove contagious disease from the

defmition of handicap under the Rehabilitation Act and codified in part the holding in Arline).

89. See DOJ Memorandum II, supra note 87, at n.4,
90. See id. at n.2.

91. Seeid.?XTi.'^.



798 INDIANA LAW REVIEW [Vol. 33 :783

virtue of the fact that the handicap here, HIV infection, given rise both to
disabling physical symptoms and to contagiousness."^^ The memorandum
concluded, "[T]he medical information available to us undermined the accuracy
of the assumption or contentions referenced in Arline that carriers of the AIDS
virus are without physical symptoms."^^

The 1988 DOJ Memorandum concluded that all symptomatic HIV-infected
individuals are handicapped under section 504.^"* This conclusion was based on
the fmding that in symptomatic patients or patients with AIDS, HIV infection
has progressed to the point where the immune system has been sufficiently
weakened so that opportunistic infection or disease, such as cancer or
pneumonia, has developed. According to the DOJ view, the substantial limiting
effects that the clinical symptoms have on many major life handicaps are such
that every symptomatic HIV-infected person is an individual with handicaps for

purposes of section 504.

Asymptomatic HIV-infection is given greater attention in the 1988 DOJ
Memorandum since the author of the opinion recognized that Arline did not
resolve the application of section 504 to asymptomatic HIV-infected

individuals.^^ The DOJ Memorandum identifies the three areas of inquiry
required to determine whether an asymptomatic HIV-infected individual is a

person with a handicap. These include: (1) whether HIV infection by itself is a
physical or mental impairment; and (2) whether this impairment substantially

limits a major effect, i.e., whether it has a disabling effect; or (3) whether an

individual with HIV infection is regarded as having an impairment which
substantially limits a major life activity.^

The DOJ Memorandum places heavy reliance on the views expressed by the
Public Health Service, especially by the Surgeon General of the Public Health

Service, Dr. C. Everett Koop, in deciding whether HIV-infection alone is an

impairment, i.e., whether the asymptomatic HIV-infected individual has an

impairment. Dr. Koop reported that HIV infection is the starting point ofa single
disease process that progresses through a continuum of stages, rather then

involving a series ofdiscrete illness. The Surgeon General concluded that "from
a purely scientific perspective, persons with HIV infection are clearly
impaired."^^ According to Dr. Koop, asymptomatic HIV infected persons are not
comparable to immune carriers ofa contagious disease such as hepatitis B. Like
a person in the early stages of cancer, asymptomatic HIV infected persons may
appear outwardly healthy, but are in fact seriously ill."^^

92. Id.

93. Id.

94. Seeid2X{l\){K).

95. See id. at n.8.

96. See id

97. Id. (citing letter of Surgeon General C. Everett Koop to Acting Assistant Attorney

General Douglas Kmiec).

98. Id. (citing letter of Surgeon General C. Everett Koop to Acting Assistant Attorney

General Douglas Kmiec).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 799

In order to determine the meaning of the statutory term "physical
impairment," the 1988 DOJ Memorandum placed specific reliance on the
regulations promulgated by the Department of Health and Human Services
defming the term as:

[A]ny physiological disorder or condition, cosmetic disfigurement, or

anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,

including speech organs; cardiovascular; reproductive, digestive,

genitourinary; hemic and lymphatic; skin; and endocrine.^

In addition to the regulations, the 1988 DOJ Memorandum noted the existence
ofan appendix to the HHS regulations that provided an illustrative, although not
exhaustive, list of diseases and conditions that are "physical impairments" for

purposes of section 504: "such diseases and conditions as orthopedic, visual,

speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,

multiple sclerosis, cancer and heart disease, diabetes, mental retardation [and]

emotional illness, and . . . drug addiction and alcoholism
."^^

The 1988 DOJ Memorandum proceeded to apply the HHS regulations and
commentary to the factual description given by the Surgeon General of the
condition of the asymptomatic HIV-infected individual, concluding that this

medical condition meets the HHS definition of "physical impairment" because
it is a "physiological disorder or condition" which affects the "hemic and

lymphatic" systems of the HIV-infected individual.
^^'

The 1988 DOJ Memorandum moved on to the second question: whether the
impairment caused by HIV-infection substantially limits any major activities in

the asymptomatic individual. The author of the memorandum found some
guidance in the illustrative, but not exhaustive, HHS regulations implementing
section 504 which define "major life activities" to include such functions as

"caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working."^^^ The 1988 DOJ Memorandum
acknowledged that it is not so readily apparent that asymptomatic, HIV-infected

persons are substantially limited in major life activities because they have no

obvious disabling physical effects resulting from their HIV infection. These
asymptomatic individuals appear able to work, to care for themselves, to perform

manual tasks, and fully to use their senses.
The 1988 DOJ Memorandum identified procreation and intimate personal

relations as two ofthe most significant major life activities substantially limited
by HIV infection. '°^ Although these activities are not listed in the HHS
regulations, the 1988 DOJ Memorandum emphasized that the list provided by
HHS is to be taken as illustrative and not as complete or exhaustive.

99. Id. (quoting 45 C.F.R. § 84.3(j)(2)(l) (1987)).

100. Id. (quoting 45 C.F.R. § 84. App. A, pt. 344).

101. Id. (citation omitted).

102. Id. (quoting § 84.3(j)(2)(ii)).

103. 5ee/V/. at Part II (B)(2).



800 INDIANA LAW REVIEW [Vol. 33:783

The 1988 DOJ Memorandum maintained that the major life activity of
procreation, the process ofimpregnating, conceiving, bearing and giving birth to
a healthy child, is substantially limited in the case ofasymptomatic HIV-infected

individuals. This conclusion was based on the significant risk that HIV will be
transmitted during pregnancy or at birth so that infected males and females

cannot engage in the process of procreation with the assured expectation of

producing a healthy child. The 1988 DOJ Memorandum concluded, "There is
little doubt that procreation is a major life activity and that the physical ability

to engage in normal procreation—procreation free from the fear of what the
infection will do to one's child—is substantially limited when an individual is
infected with the AIDS virus."^"^

According to the 1998 DOJ Memorandum, a second major life activity,
which may or may not have the purpose of procreation, but is limited by HIV
infection is intimate sexual relations. Because ofthe danger ofinfecting a sexual

partner, the HIV infected individual is faced with the need to modify his or her
intimate sexual relations, or to adopt a program of abstinence, in order to avoid

infecting a sexual partner. The 1988 DOJ Memorandum concluded: "The life
activity of engaging in sexual relations is threatened and probably substantially

limited by the contagiousness of the virus."*^^

The 1988 DOJ Memorandum explicitly rejected the argument that HIV
infection does not physically prevent procreation or intimate sexual relations, but

that it is the ethical sense or the personal decision of the asymptomatic HIV-
infected person not to engage in the activities that results in any limitations on

sexual relations experienced by such an individual. The memorandum does not
provide any significant analysis of this issue except to anticipate that a court

could find, despite the element ofpersonal decision involved, that HIV infection
had limited these major life activities.

The 1988 DOJ Memorandum further examined the alternative basis for
determining a person is a handicapped individual because the person is regarded

by others as having a limitation ofmajor life activities whether they do or not.^^
The memorandum cited the Arline opinions and the legislative history of the
1974 amendments to the Rehabilitation Act to establish the proposition that this
added text meant an impaired person could be protected even if the impairment

"in fact does not substantially limit that person's functioning."'^^ According to

the 1988 DOJ Memorandum, "The effect of this interpretation is that the
perceived impairment need not directly result in a limitation of a major life

activity, so long as it has the indirect effect, due to the misperceptions of others,

of limiting a life activity (in Arline, the activity of working)."'^^

The 1988 DOJ Memorandum examined the "otherwise qualified"

104. Matn.13.

105. IddHnM.

106. See id. at n.l4 (construing 29 U.S.C. § 706(8)(B)(iii) (1994)).

107. Id. (citing S. Rep. No. 127, at 64 (1974)).

108. Matn.14.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 80

1

requirement of section 504.^^ The memorandum concluded that based on
existing scientific and medical knowledge, in most situations the risk of

transmission of HIV is so slight that there will seldom be any justification for
treating HIV infected individuals differently than others based on fear of
contagion. "° In those individuals with only "subclinical manifestations," the

1988 DOJ Memorandum concludes that it is unlikely that asymptomatic
individuals would not be able to participate in any covered program by reason of
disease-related inability to perform. As the individual's disease progresses and
more significant clinical manifestations occur, individualized evaluation ofHIV-
infected person's ability to perform becomes more appropriate under the terms
ofthe Rehabilitation Act. Possible transmission in surgical settings, or concern

with effects of HIV-related dementia in sensitive positions such as air traffic

controllers, were identified as the type of situations where justification might be
established for treating HIV infected individuals differently from unimpaired
individuals.'"

C Case Law Extending Protection Under Rehabilitation Act to
HIV-infected Individuals

Many of the federal courts that considered the application of the
Rehabilitation Act of 1973 and the state courts construing state laws that were

based on the federal statute in cases involving persons with HIV-infection,

initially proceeded on the assumption that there was a difference in the condition
of those persons with AIDS diagnosis and persons who were HIV infected but
asymptomatic. Nevertheless, every court that considered the application of the

Rehabilitation Act to HIV-infected persons whether asymptomatic or

symptomatic found the individuals protected by the Rehabilitation Act or
involving application ofthose state laws modeled on the federal statute."^ While

some of these courts directed attention to the requirements of an "impairmenf

109. Mat Part 11(C).
110. Seeid.2XnM.

HI. See id. (referring to Surgeon General's Report on Acquired Immune Deficiency

Syndrome (1986)).

112. See Chalk v. United States Dist. Ct., 840 F.2d 701 (9th Cir. 1988); Doe v. Dalton

Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. 111. 1988); Robertson v. Granite City

Community Unit Sch. Dist No. 9, 684 F. Supp. 1002 (S.D. 111. 1988); Doe v. Centinela Hosp., No.

CV 87-2514 PAR(PX), 1988 WL 81776 (CD. Cal. June 30, 1988); Martinez v. School Bd., 675
F. Supp. 1574 (M.D. Fla. 1987); Doe v. Belleville Pub. Sch. Dist., 672 F. Supp. 342 (S.D. 111.

1987); Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); Thomas v.

Atascadero Unified Sch. Dist., 662 F. Supp. 376 (CD. Cal. 1987); American Fed'n of Gov't

Employees y. United States Dep't of State, 662 F. Supp. 50 (D.D.C 1987); Shuttleworth v.

Broward County, 649 F. Supp. 35 (S.D. Fla. 1986); Raytheon Co. v. California Fair Employment

2nd Hous. Comm'n, 261 Cal. Rptr. 197 (Cal. Ct. App. 1989); Board of Educ. v. Cooperman, 507

A.2d 253 (N.J. Super. Ct. App. Div. 1986), ajTd, 523 A.2d 655 (N.J. Sup. Ct. 1987); District 27

Community Sch. Bd. v. Board of Educ, 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986).



802 INDIANA LAW REVIEW [Vol. 33:783

that "substantially limited a major life activity,"' '^ many courts simply presumed
an HIV-infected person was a "person with handicaps.""'* Much ofthe focus of
these court opinions was whether the handicapped person was "otherwise
qualified," and in that context, whether the HIV-infected person's communicable
disease was a threat to others."^ Every reported decision construing the
protection ofthe Rehabilitation Act of 1973 up to the passage ofthe Americans

with Disabilities Act in 1990 found HIV-infection, whether it resulted in an

AIDS diagnosis or was asymptomatic, to meet the criteria for establishing that
HIV-infected individuals were "persons with handicaps." The following
discussion ofjudicial opinions will examine typical cases that take the position

that HIV-infection, whether it resulted in AIDS or whether the infected
individual remained asymptomatic, meets the requirements for establishing a

"person with handicaps."

Z). Individual with AIDS Diagnosis Is Handicapped: Chalk v. United States
District Courtfor the Central District ofCalifornia

The first federal court of appeals decision to address the treatment ofAIDS
as a handicap under the Rehabilitation Act was Chalk v. United States District
Court decided by the Ninth Circuit in 1988."^ The court found that a teacher
diagnosed with AIDS was handicapped and qualified for employment within th©
meaning and coverage of the Rehabilitation Act, as construed by the United
States Supreme Court inArline}^'^ The court ofappeals did not find it necessary

to determine the existence of an "impairment" that "substantially limits one or

more of such person's major life activities"; assuming these elements were
satisfied, the court focused on the "direct threat" issue. The court was persuaded
that medical and scientific evidence established that the virus causing AIDS
could not be transmitted through normal classroom contact.

The petitioner. Chalk, ateacher ofhearing-impaired student, was hospitalized
with Pneumocystis carinii pneumonia and diagnosed as havingAIDS . After eight
weeks, the teacher was released to return to work by his physician. However, the
county department ofeducation, Chalk's employer, placed him on administrative
leave pending the medical opinion of the county health director that Chalk was
fit to return to work. The county health director subsequently informed the
employer that the teacher posed no risk of infecting his students or others with
the virus causing AIDS."* After the close of the school year, the employer
offered the teacher an administrative position, at the same rate of pay and
benefits, with the option of working at the education department's offices or at

1 13. See, e.g., Centinela Hosp., 1988 WL 81776.
1 14. See. e.g.. Chalk, 840 F.2d at 701.

115. Id.

1 16. See id.

1 17. See id. at 871(applying School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273

(1987)).

118. 5ee /c^. at 703.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 803

his home. The employer also advised the teacher that his insistence on returning

to the classroom would be met by an effort to obtain court-ordered declaratory

relief. When Chalk insisted on returning to teaching, the employer filed a state
court action. Chalk responded by filing a federal court suit seeking a preliminary

and permanent injunction barring the employer from excluding him from the

classroom. Instead ofpursuing its state court suit, the employer counterclaimed

in a federal court action.''^

The federal district court denied the teacher's motion for a preliminary
injunction. The court then addressed each ofthe four factors set out in Arline for
determining whether a person was "otherwise qualified" in terms of the risk of
transmission of a contagious disease:

(1) the nature of the risk (how the disease is transmitted),

(2) the duration of the risk (how long is the carrier infectious),

(3) the severity of the risk (what is the potential harm to third parties),

(4) the probabilities that the disease will be transmitted and will cause

varying degrees of harm.^2°

The court found, based on current medical and scientific knowledge, that in
the case of a person infected with the virus that causes AIDS:

(1) the duration of the risk of infection was long,

(2) the severity of the risk was catastrophic,

(3) transmission of the disease appeared unlikely to occur, and

(4) the probability that the disease would cause harm to others in the
workplace setting was minimal.

^^^

However, the district court remained uncertain about the strength ofthe medical
understanding ofAIDS, about scientific knowledge ofHIV transmission because
of the relatively limited time for actual observation of the AIDS epidemic, and
about the risk that the "almost inevitable mutation ofthe virus" could lead to new
transmission routes. ^^^ Due to this uncertainty, the court denied the teacher's
motion. Further, the district court concluded that the teacher's injury was
outweighed by the fear likely to be produced by his presence in the classroom.

The employer reassigned the teacher to an administrative position coordinating
grant applications and materials for the hearing impaired program.

The Ninth Circuit reversed the District Court focusing primarily on the
"otherwise qualified" element of the Rehabilitation Act assuming that the

elements needed to establish that the petitioner was "an individual with
handicaps" were met. Because the posture of the case was a denial of a motion
for a preliminary and permanent injunction, the court ofappeals framed the issue

as whether the teacher could demonstrate the required probability of success on

119. S^eid

120. Id at 706-07 (citing Arline, 480 U.S. at 286 (quoting Brief of the American Medical

Association as amicus curiae in AHine at 28)).

121. A/, at 706.

122. Id at 707.



804 INDIANA LAW REVIEW [Vol. 33:783

the merits of a permanent injunction. The court of appeals began with a review
of the Arline holding by framing the issue in the following terms: "[T]he
question which is of central importance to this case: under what circumstances

may a person handicapped with a contagious disease be 'otherwise qualified'
within the meaning of Section 504?"*^^

The court ofappeals recognized the four factors set out in the Arline opinion
to be the determinative considerations that need to be examined in handicap cases

involving contagious diseases.'^"* The court noted that the petitioner had
submitted evidence to the district court of over one hundred medical journal

articles and the statements offive AIDS experts, submissions that revealed "[a]n
overwhelming evidentiary consensus ofmedical and scientific opinion regarding

the nature and transmission of AIDS.*"^^ The court observed that all published
studies "have consistently found no apparent risk ofHIV infection to individuals
exposed through close, non-sexual contact with AIDS patients."^^^ In support of
its findings, the court cited:

( 1 ) the Surgeon General ' s report that found no known risk ofnon-sexual
infection by everyday contact or in the school settings,

'^^

(2) reports of the Centers for Diseases Control,

(3) a report of the Institute of Medicine of the National Academy of
Sciences, and

(4) an amicus brief filed by the American Medical Association is

support of the petitioner's position on appeal.
'^^

The court of appeals concluded that the district court had failed to properly
apply the Arline four part analysis and had improperly placed the burden ofproof

on the teacher. The court interpreted Arline as permitting discriminatory
exclusion only where there is a significant risk of communicating an infectious

disease to others. Further, the court of appeals found that the district court

ignored the admonition in Arline to defer to the reasonable medicaljudgment of

public health officials. The Ninth Circuit held that, rather, the lower court
improperly relied on speculation and rejected the overwhelming consensus of

medical opinion. Finding that Chalk had demonstrated a strong probability of

success on the merits, the Ninth Circuit held that it was error to require the
teacher to disprove all theoretical possibilities of harm.

^^^

The Ninth Circuit also ruled that the teacher's injury outweighed any harm
to the employer. The court noted that there was no evidence of significant risk
to children or others at the school resulting from the teacher's presence and that

123. Mat 705.
124. See id. Sit 706.

125. Id.

126. Id

127. See id.

128. Id. (quoting United States Public Health Service's Surgeon General's Report on

Acquired Immune Deficiency Syndrome (1986)).

129. See id 2X101.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 805

a decision based on fear would frustrate the goals ofthe Rehabilitation Act. The
court did recognize that the district court would have to deal with the
apprehension of the school community and the likely progress of the teacher's
disease. As the teacher would be susceptible to opportunistic infections which
themselves would be communicable, the Ninth Circuit instructed the district
court to determine reasonable procedures, including periodic reports from the

teacher's doctors, to assure that no significant risk ofharm would arise from the
teacher's classroom presence.

*^^

The court in Chalk apparently assumed that the Arline opinion established
that individuals with an AIDS diagnosis are handicapped and that it is
unnecessary in subsequent litigation for a court to make a case-by-case analysis
to determine that individuals with AIDS are "persons with handicaps." The
analysis undertaken by the court of appeals was limited to a determination of
whether the presumed handicapped individual was "otherwise qualified." In
making this determination, the court applied the factors outlined in Arline and
relied on established medical and scientific evidence to determine whether there

was any danger oftransmission ofthe particular communicable virus that infects
the person with AIDS. The Ninth Circuit accepted the reported consensus in
medical knowledge about AIDS as the benchmark by which special treatment of
persons with AIDS must be evaluated.

E. Asymptomatic HIV-Infection Individual Perceived as Handicapped:

Doe V. Centinela Hospital

InDoe V. Centinela Hospital,^^^ decided in 1988, a California federal district
court found an asymptomatic HIV-infected individual to be properly excluded

from a federally funded hospital's residential drug and alcohol program because

offear ofcontagion, and to be handicapped within the terms ofsection 504 ofthe

Rehabilitation Act of 1973.

The plaintiff charged the hospital with a violation of section 504 on the
ground that he was a "seropositive" individual, thus an "individual with
handicaps" excluded from a covered program. '^^ The plaintiff had been
discharged from the hospital's rehabilitation program after he tested positive on

an HIV-antibody test. The court found that a positive test result indicated that
a person was infected with HIV and capable oftransmitting the virus to others. ^^^

The court acknowledged the requirements of the HHS regulations for
determining whether a person is handicapped; namely ifhe "(i) has a physical or
mental impairment which substantially limits one or more ofsuch person's major
life activities, or (ii) has a record of such an impairment, or (iii) is regarded as

having such an impairment."
•^'*

130. S^eid.ai7\2.

131. No.CV87-2514PAR(PX), 1988 WL 81776 (CD. Cal. June 30, 1988).
132. Id a.t*\.

1 33. See id at *6 (citing 29 U.S.C. § 706(8)(b)).

134. Id. at S (citation omitted).



806 INDIANA LAW REVIEW [Vol. 33 :783

In applying this criteria, some confusion arose as a result of the plaintiffs
effort to identify what "major life activity" was at issue. The plaintiff first
argued that limiting his "access to health care" constituted a limitation ofa major
life activity that is limited by his being regarded as handicapped; alternatively he

argued that he was regarded as handicapped and because "his reproductive
system" was indisputably impaired, he meets the elements set out in the HHS
regulations.'^^ ^

The court viewed the case as one involving the question of whether the
plaintiff is "regarded as having such an impairment." '^^ Specifically, the court

avoided the issue of whether all asymptomatic HIV-infected persons are

handicapped. According to the court, "On the record adduced in this case, it is
necessary only to address the question whether [the hospital] regarded this

plaintiff as having a disabling handicap; it is not necessary to reach the broader

question whether asymptomatic HIV carriers are in all cases protected by §

The court was able to side-step the question of whether the two major life
activities identified by the plaintiffmet the statutory criteria and whether, in fact,
the plaintiffs infection limited the plaintiffs ability to engage in the activities.

Instead, the court found that the discrimination by the hospital based on the
plaintiffs infection did substantially limit his ability to obtain treatment for his

addiction.'^* It is significant that the court did not identify a life activity that was
directly impacted by HIV infection, but instead the court identified a life activity
limited as a result of discrimination occasioned by the fact the patient was
infected with HIV.'^^ The approach of the court is clearly revealed in its
language: "There is no dispute that [the hospital] perceived plaintiff to have

precisely the condition [physical impairment] that he actually has and treated him
on that account as limited in his ability to learn how to deal with a dependency
[a major life activity] in the [covered] program."**^ As ifto emphasize this view
of the elements to be proven, the court asserted that "'major life activities'

include learning. Therefore, given the fact that impairment is uncontroverted,

and plaintiffs condition was treated by [the hospital] as limiting a major life
activity, the only question is whether that limitation was substantial."'"**

The court concluded that the hospital's concern with the potential for
transmission ofHIV totally precluded the patient from participating in the drug
treatment program and, therefore, the exclusion substantially limited a major life

activity of the patient despite the fact that there were alternative out-patient

programs available.'"*^ The court decided that the only issue to be resolved was

135. Id.

136. Id.

137. Id

138. Seeid^X*!.

139. See id.

140. Id at 6.

141. Id.

142. See id. at ?.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 807

whether the patient was "otherwise qualified" and remanded the case for trial on
that issue.

'"^^

The opinion in Doe v. Centinela is significant both for what it did and did not
decide. The court avoided determining whether all asymptomatic HIV-infected

persons were "individuals with handicaps." However, the opinion broadened the

basis for establishment ofwhether a person with an impairment is handicapped

by allowing a showing that discrimination that followed from a perception that

the person is handicapped resulted in interference with a major life activity,

rather than requiring that the impairment directly result in a substantial limitation

of a major life activity.

F. Asymptomatic HIV-infected Individual Is Per Se Handicapped:

Thomas v. Atascadero Unified School District

The view that asymptomatic HIV-infected persons are per se handicapped
under the Rehabilitation Act of 1973 was adopted by a federal district court in

California in 1986 in Thomas v. Atascadero UnifiedSchoolDistrict}^^ The court
entered a permanent injunction in favor of a HIV-infected kindergarten student

who had been expelled from school after biting another child. The court found
the HIV-infected child handicapped under the Rehabilitation Act and ordered the

defendant school district to allow the child to attend regular kindergarten

classes.
^^^

The court, relying on the Centers for Diseases Control's expertise,
determined that infection with HIV involved a range of symptoms ranging from
early acute, though transient, manifestations ofinfection, asymptomatic infection,

persistent swollen lymph-modes and the presence ofopportunistic disease and/or

rare type of cancer.

The court concluded that all phases of HIV infection constitute an
impairment and that infection inevitably substantially limits some major life
functions of every infected person.''*^ The court reasoned as follows:

Individuals in all four ofthe CDC classifications [ofHIV disease] suffer
from impairments to their physical symptoms. Persons infected with the

AIDS virus suffer significant impairments of their major life activities.
People infected with the AIDS virus may have difficulty caring for
themselves, performing manual tasks . . . learning and walking, among
other life ftmctions. Even those who are asymptomatic have
abnormalities in their hemic and reproductive systems making

reproduction and childbirth dangerous to themselves and others.
'"^^

The court concluded that asymptomatic HIV-positive individuals are

143. Mat 7-11.
144. 662 F. Supp. 376 (CD. Cal. 1986).

145. Seeid.dX^%\.

146. See id. at 379.

147. Id.



808 INDIANA LAW REVIEW [Vol. 33:783

handicapped under the Rehabilitation Act.
'"**

Since the plaintiff was a kindergarten child, the court obviously found no
need to inquire into whether the plaintiff intended to have children, but for

having contracted HIV-infection. The court basically eschewed a case-by-case
analysis with the effect that asymptomatic HIV-infected persons were viewed as
per se "persons with handicaps."*"*^

V. Americans with Disabilities Act of 1 990

The Americans with Disabilities Act of 1990 ("ADA")'^° is an omnibus
federal anti-discrimination law prohibiting discrimination against persons with

disabilities in employment, '^* government programs and services,^" public

accommodations and services, '^^ and telecommunications.^^"* The ADA replaces
the word "handicap" found in the Rehabilitation Act of 1973'" with the term
"disability" in order to avoid what some considered unfavorable connotations of
the former usage. '^^ In order to come under the protection of the ADA, an
individual must satisfy the definition ofdisability developed in the statute and as
promulgated in regulations by the Congressionally delegated agencies. For

example, under Title I of the ADA the designated agency is the Equal
Employment Opportunity Commission ("EEOC").'^^ The EEOC issued
regulations along with interpretative guidelines on June 26, 1991.*^* The
legislative history ofthe ADA reveals that the relevant case law interpreting the
Rehabilitation Act of 1973 should generally be applied when interpreting not
only the term disability, but also the other language in the ADA.*^^ The ADA
specifically provides that it shall not invalidate or limit the remedies and rights

available under any other federal or state laws that provides greater or equal

protection for the rights of individuals with disabilities.
'^°

The ADA contains four substantive parts or titles with a fifth title covering
enforcement provisions and exemptions. Title I regulates employment relations
and prohibits employers from discriminating against any qualified individual

148. SeeideLi3S\.

149. S^g/V/. at 381-82.

150. 42 U.S.C. §§ 12,101-12,213 (1994).

151. 5ee 42 U.S.C. §§12,111-12,117.

152. 5:ee/V/. §§ 12,131-12,134.

153. ^ee/V/. §§12,141-12,165.

154. 5eeiflr. §§12,181-12,189.

155. 29 U.S.C. § 706(8)(b).

156. 5ee42U.S.C. §12,101(b).

157. See id §\2A\7.

158. See 29 C.F.R. § 1630.1 (1987); 56 Fed. Reg. 35,726 (1991).

159. 5eeH.R.REP.No. 485,at50(1990),re/7n/i/e^m 1990U.S.C.C.A.N. 303, 332-66; H.R.

Rep. No. 485, at 27 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 450-54; S. Rep. No. 1 16, at 21

(1989).

160. See 42 U.S.C. § 12,201(b).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 809

with a disability with regard to hiring, promoting, firing or any term or condition,

or privilege of employment. ^^^ Title II of the ADA prohibits discrimination in
public services, and also imposes an accommodation requirement on state and

local government providers of services. ^^^ Title III prohibits discrimination in

places of public accommodation and commercial facilities and requires the
design ofnew facilities to provide access for the disabled.'" Title IV relates to
telecommunication and common carriers,'^ imposing, for example, requirements
for telephone communications for speech and hearing impaired individuals.*"

The ADA definition of"a person with a disability"'^ tracks the definition of
"a person with handicaps" under the Rehabilitation Act of 1 973 . '^^ An individual
has a disability under the ADA if any one ofthree circumstances is present: (1)
has a physical or mental impairment that subsequently limits one or more ofthe
major life activities; or (2) is regarded as having such an impairment, or (3) has

a record of such impairment.'^* In the context ofthe ADA, the term "disabled"
does not include individuals solely because the individual is a transvestite,

homosexual or bisexual; additional conditions not included are transsexualism,

pedophilia, exhibitionism, voyeurism, gender disorder absent physical

impairment, compulsive gambling, kleptomania.'^' Where use of controlled
substances is the basis ofany adverse treatment, the individual is not considered

qualified for protection under the ADA.'^°

The ADA requires that the EEOC issue regulations to implement the
provisions dealing with employment discrimination under Title I.'^' The
regulations provide clarification of the definition of disability by providing

guidance for applying the specific terms ofthe statute including: (1) physical or

mental impairment; '^^ (2) major life activities;
'^^

(3) substantially limits;'^"* (4)

has a record of such impairment; '^^ and (5) is regarded as having such an

impairment.
'^^

The regulations issued by the EEOC in 1991 provide guidance for applying
the first prong ofthe definition of"a person with a disability" by stating that the

161. Seeid§§ 12,111-12,117.

162. 5eeiV/. §§12,131-12,165.

163. See id. §§12,181-12,189.

164. See id §§225,711.

165. 5ee 47 U.S.C. § 225.

166. 42U.S.C. § 12,102(2).

167. 29 U.S.C. § 706(8)(B), (C).

168. 5ee 42 U.S.C. § 12,102(2).

169. See id §§ 12,114, 12,208, 12,211.

170. See id §§ 12,114,12,210.

171. 5^6 zV/. §12,116.

172. See 29 C.F.R. § 1630.2(h) (1999).

173. See id § 1630.2(i).

174. See id § 1630.2(j).

175. See id § 1630.2(k).

176. See id § 1630.2(1).



810 INDIANA LAW REVIEW [Vol. 33:783

term "physical impairment" included: (1) any physical disorder, or condition,

cosmetic disfigurement, or anatomical loss affecting one or more ofthe following
body systems: neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive; genitourinary;

hemic and lymphatic; skin; and endocrine or (2) any mental or psychological

disorder, such as mental retardation, organic-brain syndrome, emotional or

mental illness, and specific hearing disabilities.''^ TheEEOC regulations further
provided that whether a person is impaired is to be determined without mitigating

measures such as medicines, or assistive or prosthetic devices. ''* The example
given is that ofan epileptic who is to be regarded as having an impairment even
if the symptoms of epilepsy can be controlled by drugs.^'^ Similarly, a person
with a hearing or vision loss is to be regarded as impaired even if the condition

can be corrected with a hearing aid or glasses.'**^

According to the EEOC regulations, major life activities include: "Caring
for oneself, performing manual tasks, seeing, hearing, speaking, breathing,

learning, or working."*** The regulations specifically indicate that the provided
list is not to be regarded as exhaustive noting that other major life activities

"include, but are not limited to, sitting, standing, lifting and reaching."'" The
EEOC Interpretative Guidelines include within the terms ofmajor life activities
"those basic activities that the average person in the general population can

perform with little or no difficulty.""^

The EEOC set out factors to be considered in determining whether an
individual is substantially limited in a major activity including: "(i) the nature

and severity of the impairment; (ii) the duration or expected duration of the

impairment; and (iii) the permanent or long term impact, or the expected

permanent or long term impact, resulting from the impairment."**"* The term
"substantially limits" is given the meaning: "(i) unable to perform a major life

activity that the average person of the general population can perform; or (ii)

significantly restricted as to the condition, manner or duration under which . .

.

the average person in the general population can perform that same major life
activity."*" The EEOC guidelines indicate that for a disability to exist an
impairment must substantially limit one or more of an individual's major life

177. 5ee/</. § 1630.2(h).

178. See 29 C.F.R. app. § 1630.2(h). But see the recent Supreme Court cases holding that

mitigating measures are taken into account in determining disability, Albertsons, Inc. v.

Kirkingburg, 527 U.S. 555 {\999)\ Murphy v. United Parcel Service, Inc., 527 U.S. 516(1999);

Sutton V. United Air Lines, Inc., 527 U.S. 471 (1999).

179. See id

180. See id

181. Id § 1630.2(i).

182. Id

183. 29 C.F.R. §1630.2(1).

184. Id § 1630.2(jX2).

185. Id § 1630.20X1).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 811

activities/*^

Under the second prong of the ADA's definition of disabled, an individual
with a record of such impairment "is someone who (1) had a physiological or
mental disorder but no longer has that impairment" (e.g., an individual who in the
past was misclassified as having a learning disorder.)^*^ The EEOC
interpretation ofthis prong ofthe disability definition requires that the record of

impairment must show that it would substantially limit one or more of the
individual's major life activities.*** Further, the individual's record of

impairment must be of a condition that would be covered under the ADA if it
were a current condition.'*' The EEOC's interpretation of the ADA takes the
view that the mere fact an individual has a record of being a "disabled veteran,"

or is on "disability retirement," or is classified as disabled for other purposes

does not mean that the individual necessarily satisfies the ADA definition of
disability.'^

Under the third prong of the ADA's definition of disability, an individual
who "is regarded as having such an impairment'"^' can fit into one of three
different categories according to the EEOC regulations.'^^ The first category
includes individuals with a physical or mental impairment that does not

substantially limit a major life activity, but whose impairment is treated as
though it does.'^^ The EEOC offers the example ofan individual with controlled
high blood pressure that is not, in fact, substantially limiting, but who is
reassigned to less strenuous work because of the employer's unsubstantiated
fears.'''* The second category includes individuals with a physical or mental
impairment that substantially limits a major life activity only as a result of the

prejudice of others toward the impairment."^ An example of one such
impairment is physical disfigurement."^ Finally, individuals may fit into the
third category which includes persons who do not have a physical or mental
impairment but who are treated as though they do."^ This category includes the
male homosexual who is assumed to be HIV infected merely by virtue of his
sexual orientation."*

Neither AIDS nor the HIV infection is directly identified within the statutory
language of the ADA. Ofcourse, this is to be expected because the ADA does

186. See id § 16302(1).

187. 29 C.F.R. app. § 1630.2(k); 56 Fed. Reg, 35,742.

188. See 29 C.F.R. app. § 1630.2(i)-(j); 56 Fed. Reg. 35,741.

189. See 29 C.F.R. app. § 1630.2(i)-(j); 56 Fed. Reg. 35,741.

190. 29 C.F.R. app. § 1630.2(k); 56 Fed. Reg. 35,742.

191. 42 U.S.C. § 12,202(2)(c) (1994).

192. See 29 C.F.R. app. § 1630.2(1); 56 Fed. Reg. 35,742.

193. See 29 C.F.R. app. § 1630.2(1) (construing 42 U.S.C. § 12,102(2)(A)-(C)).

194. See^id

195. See id

196. See id (construing 42 U.S.C. § 12,102(2)(b)).

197. See id (construing 42 U.S.C. § 12,102(2)(6)).

198. See id.



812 INDIANA LAW REVIEW [Vol. 33:783

not make mention of any specific disease; but instead, defines the concept of
disability with reference to impairment and substantial limitation on major life

functions. However, the legislative history is clear that it was the intention of
members of the House and Senate that these medical conditions be treated as
disabilities.

The first legislation introduced to provide protection from discrimination of
individuals having AIDS or HIV infection was the AIDS Federal Policy Act of
1987'^ that would have amended the Public Health Services Act. This
legislation would have provided non-discrimination protection in employment,
housing, and public services to those persons who were infected, or who were
regarded as infected, with the causal agent for Acquired Immune Deficiency
Syndrome.^^ This legislation made no distinction between symptomatic and
asymptomatic infection. Both the Senate and House's versions of their

legislation addressed the issue of "otherwise qualified" by providing that an
individual would not otherwise by qualified ifunder established medical criteria,

under the circumstances involved, an infected individual would expose other
individuals to a significant possibility of being infected.^^' Hearings were held

in 1988 on this legislation in both the House^^^ and Senate,^^^ but no further

action was taken.
Legislation was introduced in 1988 in the form ofan initial Americans with

Disabilities Act, abandoning the approach of an HIV-specific statute and

introducing a more generalized approach to antidiscrimination protection for
persons with disabilities without identifying specifically individual diseases or

disorders covered such as AIDS or HIV infection.^^^ Joint hearings were held,
but the legislation did not proceed for further action.^^^

In 1 989, when the 1 1 st Congress convened, the Americans with Disabilities

199. S. 1575, H.R. 3071, 100th Cong. 1st Sess. (1987), 133 CONG. Rec. 21,903 (1987).

200. See S. 1575, H.R. 3071 § 2341.

20 1

.

S. 1 575, H.R. 307 1 § 234 1 (b)( 1 ).

202. See Bills andResolution to ImproveAIDSCounselingandEducation, andto Encourage

Better TestingandReporting to Help Protect the General PublicAgainstAIDSInfection: Hearings

onHR. 338. HR. 339, HR. 344, HR. 345, H.R. 2272, HR. 2273, HR. 307J. and H.R. Con. Res.

8 Before Subcomm. on Health and the Env 't ofthe House Comm. on Energy andCommercey 1 00th

Cong., 1st Sess. (1988).

203

.

See ToAmendthe Public Health Services Act to Establish a Grant Program to Provide

for Counseling and Testing Services Related to Acquired Immune Deficiency Syndrome and to

Establish Certain prohibitionsfor the Purpose ofProtecting Individuals with Acquired Immune

Deficiency Syndrome and to Establish Certain Prohibitions for the Purpose of Protecting

Individuals with Acquired Immune Deficiency Syndrome or Related Conditions: Hearings on S.

1575 Before the Senate Comm. on Labor and Human Resources, 100th Cong., 1st Sess. (1988).
204. See S. 2345, H.R. 4498, 100th Cong., 2nd Sess. (1988).

205

.

See Joint Hearing ofthe Subcomm. on the Handicapped ofthe Senate Comm. on Labor

and Human Resources and the Subcomm. on Select Educ. of the House Comm. on Educ. and

Labor, 100th Cong., 2nd Sess. (1988).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 8 1

3

Act was introduced.^^^ The Senate version of the ADA was referred to the
Committee on Labor and Human Resources whose report clearly includes the
conclusion that HIV infection, both symptomatic and asymptomatic, is to be
treated as a disability under the ADA.^^^ The House version of the ADA was
referred to four committees, two of which (the Committee on Labor and

Education^^^ and the Committee on the Judiciary^^^) specifically concluded that
HIV infection, whether symptomatic or asymptomatic, qualified as a disabilit>
under the ADA. While all of the Congressional legislative reports on the ADA
that considered the question of whether HIV infection is a disability under the
ADA reached the same conclusion that it is, however, none of the reports
actually proceeded through a step-by-step analysis under the actual terms ofthe

statute to show how AIDS and HIV-infection met the statutory criteria for
disability. Instead, these reports simply assume that the impairment caused by

HIV is a significant physical impairment and that persons with HIV infection are
assumed to have a disability. Nevertheless, both the House and Senate reports
make it clear that in enacting the ADA, both houses ofCongress concurred in the
view that "discrimination against individuals with HIV infection is widespread
and has serious repercussions for both the individual who experiences it and that
Nation's efforts to control the epidemic."^'*' In response to this assessment, the

reports ofthe Senate and the House make it equally clear that it was the intent of
the sponsors of the ADA that the AIDS and HIV-infection be recognized as
disabilities under the terms of the ADA.^'' For example, the House Report
specifically endorsed the view that "a person infected with human
immunodeficiency virus is covered under the first prong ofthe definition ofthe

term disability because of a substantial limitation to procreation and intimate

sexual relations."^'^

The various Congressional committees were much less focused on whether
AIDS and HIV-infection constitute a disability than they were with whether HIV,
as an infectious disease, should be treated differently than other disabilities. One
of the most hotly debated issues concerned coverage of HIV-infected persons
employed in food handling jobs. A proposed amendment to section 103 of the
House Bill by Representative Chapman would have permitted an employer to
refuse to assign, or to reassign, an employee with an infectious or communicable

206. See S. Res. 933, 101st Cong., 1st Sess. (1989); H.R. Res. 2273, 101st Cong., 1st Sess.

(1989).

207. See Senate Comm. on Labor and Human Resources, Americans with Disabilities Act of

1989, S. Rep. No. 1 16, at 8 (1989).

208. See H.R. REP. No. 101-485, at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333.

209. 5ee H.R. REP. No. 101-485, at 28, re/^rm/e^m 1990 U.S.C.C.A.N. 445, 451.

210. H.R.REP.N0. 101-485,at31 (1990); S. REP. No. 101-1 16, at 8 (citing statement ofthe

Chairman of vthe President's Commission on the Human Immunodeficiency Virus Epidemic,
Admiral James Watson).

211. See S. REP. No. 101-1 16, at 22 (1990), H.R. Rep. No. 101-485, at 52 (1990), reprinted

in 1990 U.S.C.C.A.N. 303, 333.

212. H.R. Rep. No. 101-485, at 52 (1990), re;7rm/e^m 1990 U.S.C.C.A.N. 305, 333.



814 INDIANA LAW REVIEW [Vol. 33:783

disease to a job involving food handling, provided the employer provided the
worker alternative employment.^*^ Congressman Chapman conceded that the
Centers for Disease Control had reported that there was no evidence of any case
ofHIV being transmitted in the process of handling food, but the Congressman
maintained that the fact there were reported cases of HIV infection when the
cause of infection was unknown provided sufficient justification for the right to
discriminate against HIV-infected food handlers.^'"* In order to reach a

compromise between the Senate version ofthe ADA and the House version with
the Chapman amendment, an amendment by Senator Hatch was adopted that
required the Secretary of Health and Human Services, not later than six months
after passage of the ADA, to determine if there were any infections or
communicable diseases that might be transmitted through food handling.^'^ Such

a list, if provided, would serve as a basis for an exception to the prohibition of
employment discrimination against disabled persons.^ ^^ The Secretary ofHealth
and Human Services and the United States Public Health Service were already
on record with the view that HIV is not transmitted through food preparation
services, and no exception was made for food handlers with AIDS or HIV
infection.^

'^

The EEOC is responsible for enforcing the employment non-discriminations
disability provisions of Title I ofthe ADA.^'* The Department ofJustice (DOJ)
is responsible for promulgating regulations and guidelines for enforcement of

nondiscrimination against the disabled in public services under provisions of

Title II ofthe ADA,^*^ and in public accommodations under provisions of Title

III of the ADA."° The DOJ regulations follow those of the EEOC in adopting
the definition of the term "physical or mental impairment" in the regulations

implementing section 504 of the Rehabilitation Act of 1973.^^' However, the
DOJ regulations go further by adopting an additional support ofthe definition of
"'physical or mental impairment" that lists specific conditions and diseases. The
DOJ regulations provide:

The phase physical or mental impairment includes, but is not limited to,
such contagious and noncontagious diseases and conditions as

213. See 136 CONG. Rec. 10,91 1 (1990).

214. ^eeiW. at 10,91 1-12.

215. See 136 CONG. Rec. S9555-6 (daily ed. July 1 1, 1990).

216. See id.

217. See Letter to Louis W. Sullivan, Secretary of Health and Human Services, 136 CONG.

Rec. S9545 (daily ed. July 11, 1990); CDC, Summary: Recommendations for Preventing

Transmission of Infection with Human T-Lymphotropic Virus Type IIl/Lymphodenopathy

Associated Virus in the Workplace, 34 MMWR 681, 693-94 (1985), in 136 CONG. REC. S9546
(dailyed.July 11, 1990).

218. Sgg 42 U.S.C. §12,116(1994).

219. See id § 12, 134(a).

220. See id ^ 12, 186(b).

221. 34 C.F.R. §104(1999).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 8 1

5

orthopedic, visual, speech, and hearing impairment, cerebral palsy,

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,

diabetes, mental retardation, emotional illness, specific learning

disabilities, HIV disease (whether symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism.

^^^

The DOJ regulations clearly state that HIV infection constitutes an impairment:
"HIV disease (whether symptomatic or asymptomatic constitutes a physical
impairment,"^^^

VL VrE'Bragdon v. AbbottCase Law Finding Persons with AIDS and
HIV-lNFECTiON Protected Under ADA

A. AIDS Diagnosis and HlV-Infection Treated as a Presumed Disability

Many ofthe federal courts considering discrimination claims based on AIDS
or HIV-infection brought under the ADA have not undertaken an extensive
analysis to determine whether either, or both, conditions qualify as disabilities

under the statute. In some cases, the court has merely adopted the proposition
that these conditions constitute a disability without further analysis. For

example, in Howe v. Hull,^^* a patient's estate sued a hospital and admitting
physician for refusal to admit a patient with HIV infection in a federal district
court in Ohio. Although hospital physicians differed on whether the patient had

progressed to full-blown AIDS or was merely HIV-positive, the federal district
court found no need to reach a conclusion on this matter. Without further

analysis, the court concluded: "A disability is defined [in the ADA] as 'physical
or mental impairment that substantially limits the person in one or more major
life activities.' AIDS and HIV infection are both disabilities within the meaning
of the ADA."'''

Some courts have concluded that AIDS and HIV infection constitute
disabilities by reference to other courts' opinions construing the Rehabilitation

Act of 1 973.''* These courts have simply cited regulations issued by the relevant
agency designated by theADAwhich provide guidance for applying the statutory
terms such as "disability.""^

222. 28 C.F.R. §36.104.

223. Id

224. 873 F. Supp. 72 (N.D. Ohio 1994).

225. id 9X 78 (citing 42 U.S.C. § 12,102(2)(A); T.E.P. v. Leavitt, 840 F. Supp. 1 10, 1 1 1 (D.

Utah 1993); 28 C.F.R. § 36,104(i)(b)(ii)).

226. See, e.g., Robinson v. Henry Ford Health Sys., 892 F. Supp. 176, 180 (E.D. Mich.

1994).

227. D.B. V. Bloom, D.D.S., 896 F. Supp. 166, 170 n.4 (D.N.J. 1995).



816 INDIANA LAW REVIEW [Vol. 33:783

B, AIDS Diagnosis andHIVInfection Treated as a Per Se Disability

In Anderson v. Gus Maker Boston Store,^^^ a federal district court in Texas
found AIDS and asymptomatic HIV-infection to be per se disabilities under the
ADA. The court began its analysis by citing, as the standard for determination
of the existence of a disability, the three-pronged definition of disability in the

ADA.^^^ The court next noted that the ADA defines disability in substantially the
same terms that the Rehabilitation Act of 1973 defines handicaps.^^^ Moreover,
the ADA was enacted, according to the court, with the expectation that the
Rehabilitation Act, and the case law construing it, would be used in interpreting

the ADA.''^

The court in Anderson recognized that a disability under the ADA
necessarily involves an impairment that has the impact of substantially limiting

one or more major activities ofthe individual. But significantly, the court found
that the EEOC regulations promulgated pursuant to the ADA are to be given
significant deference when determining the meaning of the ADA.^^^ The court
observed that although the list ofmajor life activities in the EEOC regulations is
not exhaustive, the list does include such functions as "caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning

and working."^^^ Without citation the court concluded that "impairments on the
procreative process also substantially limit a major life activity

."^^'*

The Anderson court then recognized a second basis of authority for its
conclusion that AIDS and asymptomatic-HIV infection are per se disabilities
under the ADA. The court was very direct in its view that a case-by-case
analysis is not required because a body of case law has determined that both

AIDS and HIV infection constitute disabilities due to the substantial limitations
these conditions place on a person with AIDS or HIV infection in their ability to
procreate or engage in sexual relationships.^" The Anderson court declared:

"Conditions such as AIDS, HIV, blindness and deafness, inter alia, have been
determined by the courts to be per se disabilities. In other words, it has been

established both that these conditions impact a major life activity and that this

impact is substantially impairing of a given activity."^^^ The courts reading of
both the EEOC regulations and the case law provides its authority for the

228. 924 F. Supp. 763 (E.D. Tex. 1996).

229. See id at 773 (citing 42 U.S.C. § 12,102(2)).

230. See id. (citing Dutcher v. Ingalis Shipbuilders, 53 F.3d 723, 725 n.4 (5th Cir. 1995);

Chandler v. City of Dallas, 2 F.3d 1385, 1391 (5th Cir. 1993).

23 1

.

See id (citing Collings v. Longview Fibre Co., 63 F.2d 828 (9th Cir. 1995); Bolton v.

Scrivner, Inc. 36 F.3d 939 (10th Cir. 1994); 29 C.F.R. § 1630, app. Part 1630—Interpretation

Guidelines to Title I of the ADA, § 1630.2(g) (1995)).

232. Seeid2Ltn3'UnA9.

233. Id. at 773 (citing Dutcher, 53 F.3d at 726).

234. Id at 774 (citing 29 C.F.R. § 1630.2(i)).

235. See id.

236. Id. at 774-75 (citations omitted).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 8 1

7

conclusion that AIDS and HIV infection are per se disabilities.
The Anderson court, however, provided an alternative basis for finding

disabilities when applying the three-pronged definition of disability provided in
the ADA.^^^ The court goes on to concluded that when a condition has not been
recognized as a per se disability, the court should treat the question of whether

a given condition is a disability as a mixed question of law and fact.^^^ The court
went on to conclude that if HIV is not a per se disability (as the court believes it
to be), then the court finds that Anderson's HIV-status in this case was a
disability as a matter of law.^^^ To support its conclusion, the court cited the
relevant EEOC regulations and noted that restrictions on procreation and travel
are experienced by persons with HIV-infection.^'*° The court notes in a footnote:
"Beyond the obvious impairment on the ability to procreate, even an
asymptomatic HIV-positive individual cannot travel freely. Such an individual

must be always mindful of exposure to bacterial infection and fungi or even
places requiring vaccinations."^"*'

C AIDS Diagnosis and HIV-Infection Treated as a Disability
Because ofPhysical Impairment

Doe V. Kohn, Nast & Graph, P.C,^^^ decided by a federal district court in
Pennsylvania, involved an HIV-infected attorney claiming that his discharge by

a law firm violated the ADA. A significant issue in the case was whether HIV-
infection constituted a disability within the meaning of the ADA. The court
characterized the law firm's defense in these terms: "The thrust of the defense
argument is that even though HIV-positive status, most assuredly, is not a happy

medical condition with which to be diagnosed, it is not in fact disabling."^'*^

Basically, the defense maintained that HIV infection was not an impairment and
that the HIV infection did not interfere with any major life function of the
plaintiff; most importantly, it did not prevent him from engaging in legal work.^*^

The federal district court began its analysis by citing the three-pronged
definition ofdisability in the ADA.^'*^ However, the court quickly noted that the

plain language of the statute does not provide any significant guidance for

determining whether HIV-infection is within the meaning of disability
.^"^^

Moreover, the trial court judge eschewed any notion that the everyday

understanding of disability was controlling. The court noted

237. See id.

238. See id. at 775 (citing 42 U.S.C. § 1 2, 1 02(2) ( 1 994)).

239. See id at 776.

240. See id at 777.

241. Id 2X111 nM.
242. 862 F. Supp. 1310 (E.D. Pa. 1994).

243. Mat 1318.
244. See id.

245. 5ee/i/. at 1318-19.

246. See id at 1319 (citing 42 U.S.C. § 12,102(2) (1994)).



818 INDIANA LAW REVIEW [Vol. 33:783

[t]hat lay observation may have a certain common sense ring to it, but
my role is not limited to construe the statute so that it might conform
with a lay perception. Rather, I must read with care the definition of
disability that Congress and the EEOC, gave us, and decide whether this
plaintiffs disease and its symptoms fall within one or more of those
express statutory and regulatory definitions, as anomalous as the

statutory result might seem to some.^"*^

Drawing upon the first prong ofthe ADA and the relevant EEOC regulations, the
court concluded that the HIV-infected attorney was disabled.^'**

The court found that the HIV infection resulted in an impairment to the
extent that it produced certain psychological disorders including fever, rash, and

skin disorders.^"*^ Further, the court found the existence of impairment from the

fact that HIV creates a physiological disorder ofthe hemic (blood) and lymphatic
symptoms, citing a usual development of swollen lymph nodes created by HIV
infection.^^^

In considering the issue of limitations on major life activities, the court

considered the relevant EEOC regulations.^^' However, the court found no basis
in the regulations for the claim that the relevant life activity under the statute

were limited to work-life or work-activities.^" While the plaintiff argued that

HIV infection limited his ability to procreate, the court did not base its
conclusion that the plaintiffwas disabled on that basis. According to the court:

The factual record in this case is thin, indeed, as to whether HIV status
is a disorder or condition that affects the "reproduction" system. No
physicians testified as to that, and the parties seemed content to rely on

administrative findings and the ruling ofotherjudges . . . [such as] a case

involving a plaintiff with full-blown AIDS . . . found in dictum that a
person who is HIV-infected is substantially limited in a major life
activity because ofthe significant risk oftransmitting the HIV infection
to a partner or a child, thereby endangering their lives.^^^

The court, nonetheless, specifically stated that, "[i]t is clear, therefore, that
the language ofthe statute does not preclude procreating as a major life activity,

but many will include it."^^** Thus, the court suggested procreation could
constitute a major life activity, but such a showing was not necessary to establish

247. Id.

248. 5ge/cf. at 1319-20.

249. See id. at 1320 (construing 42 U.S.C. § 12,102(2); 29 C.F.R. § 1630.2(h) (1993)).

250. See id. (citing depositions of physicians who had treated the plaintiff).

251. See id (citing Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) (citing Doe v.

Dohon Elementary Sch. Dist., No. 148, 694 F. Supp. 440 (N.D. 111. 1988) (describing in detail the

effects ofHIV infection on the body))).

252. See id (citing 29 C.F.R. § 1630.2(i)).

253. Id

254. Id



2000] AIDS FEDERAL CIVIL RIGHTS LAW 8 1

9

that HIV-infection resulted in disability
.^^^ The court based its finding of

disability on the physiological effects ofHIV infection. The court concluded that
the effect of the plaintiffs infection resulted in physical impairment that

substantially limited one or more of the plaintiffs major life functions, and,
therefore, he had a disability within the meaning of the ADA."^ The court in
Doe V. Kohn Nast & Graf, P.C., based its conclusion on a two factor analysis:
(1) HIV infection constituted an impairment, and (2) this impairment produced
physical symptoms, or interference with physiological functions, in the form of

fever, rash, weight loss, skin disorders, and swollen lymph nodes.^^^
The court went on to determine that the plaintiff did not satisfy the second

prong of the definition of disability in the ADA, determining that the plaintiff
neither had a record of such impairment, nor was he likely to establish that he
was discriminated against because others regarded him as having such an
impairment.^^* The court found the plaintiff did not have a record of such
impairment because he was discharged only a few months after he tested HIV-
positive. The court reasoned that this period of time was not long enough to
constitute a history of impairment.^^^ The court also suggested that the plaintiff

was not likely to establish that members of the law firm perceived him to be
impaired because there was a litany of legitimate reasons why plaintiff was
fired.'^'

D. HIV'Infection Treated as Disability Because ofInfectiousness

Gates V. Rowland^^^ decided in 1994 by the Ninth Circuit involved claims

of discrimination within a correctional facility. The opinion of the court is
significant for two reasons. First, the court did not draw a distinction between
AIDS and HIV-infection, and second, because it found a disability to exist
because of the "infectiousness" of HIV. The case was brought under the
Rehabilitation Act of 1 973,^^^ but the court significantly cited the Americans with

Disabilities Act and the Department of Justice Regulations promulgated under

authority of that statute.^^^

The court's analysis began with consideration of the Supreme Court's
opinion in School Board ofNassau County v. Arline?^ The court noted that
according to the Arline opinion, the contagious effects of a disease cannot be

255. See id. dX nix.

256. Seeid.2XU20.

257. Seeid^xniX.

258. See id.

259. See id at 1322 (applying 29 C.F.R. § 1620.2(1), (k) (1993)).

260. See id.

261. 39 F.3d 1439 (9th Cir. 1994).

262. See id at 1445 (citing 29 U.S.C. § 794(a) (1994)).

263. See id at 1446 (citing 42 U.S.C. § 12,101(2); 28 C.F.R. § 35,104(4)(l)(ii)).

264. 480 U.S. 273 (1987)).



820 INDIANA LAW REVIEW [Vol. 33:783

distinguished from the physical effects of a disease.^^^ The court then cited its
own opinion in Chalk v. United States District Court for the proposition that in
determining the existence ofhandicap or disability, "the physical impairment to

the individual is not the issue, but rather the issue is the contagious effect ofthe

HIV virus."^^ With regard to infectiousness, the court concluded that there is no
distinction to be made between persons with an AIDS diagnosis and those who
are asymptomatic. The court noted that the ADA defines disability in virtually
identical terms to the Rehabilitation Act of 1973.^^^ The court further observed

that the DOJ regulations implementing the ADA include in their catalogue of
physical or medical impairments "HIV disease whether symptomatic or
asymptomatic."^^* On this basis, the court stated: "[W]e hold that a person
infected with the HIV virus is an individual with a disability within the meaning
oftheAct."'''

VIL Case Law Finding Persons with HIV-Infection Not
Protected Under the ADA

A. A Particularized Determination That Asymptomatic HIVInfection
Is Not a Disability

Ennis v. NationalAss 'n ofBusiness andEducational Radio Inc., decided by
the United States Court of Appeals for the Fourth Circuit in 1995, involved an

employee who claimed she was fired because her employer wanted to avoid
paying for medical insurance for her adopted son who was HIV-infected but
asymptomatic.^^^ The basis of this action was not a claim of prohibited
discrimination of a "qualified individual with a disability" under the ADA.
Instead, the suit was brought under a section ofthe ADA that prohibits employers
from making adverse employment decisions against an employee "because ofthe

known disability of a person with whom the qualified individual is known to
have an association."^^^

The court in Ennis undertook an analysis ofwhether the HIV-infected child

met any of the three prongs of the definition of disability set out in the ADA

265. See Gates, 39 F.3d at 1446 (citing Arline, 480 U.S. at 273).

266. Id. (construing Chalk v. United States Dist. Court, 840 F.2d 701 (9th Cir. 1988)).

267. See id. (comparing 42 U.S.C. § 12,101(2) (1994) and 29 U.S.C. § 706(8)(B) (1994)).

268. Id (citing 28 C.F.R. § 35.104(4)(l)(ii) (1993)).

269. Id See also Harris v. Thigpen, 941 F.2d 1495, 1524 (1 1th Cir. 1991).

Whether or not asymptomatic HIV infection alone is defined as an actual "physical

impairment," it is clear that this correctional system treats the inmates such that they are

unable or perceived as unable, to engage in "major life activities" relative to the rest of

the prison population ... we believe that it is appropriate in this case to fmd

seropositivity a "handicap" with the meaning of the Act.

Id

270. Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995).
271. Id at 57 (citing 42 U.S.C. § 12,1 12(b)(4)).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 82

1

defmition.^^^ The court expressed skepticism about the authority of the EEOC
regulations defining "impairment,"^^^ rejected the notion that the ADA permitted
recognition of any per se disability

j^^"* and stressed the need for a case specific

finding ofboth an impairment and an actual limitation ofa major life activity of

the individual.^^^

According to the Ennis court, "the plain language ofthe [ADA's disability]
provision requires that a finding ofdisability be made on an individual basis."^^^
The court reasoned that the terms of the definition of disability anticipated a
particularized determination.^^^ Specifically, the court cited the terms of the

statutory definition of disability that requires a finding of impairment "with

respect to [the] individual," and the court stressed the requirement that the

finding of an impairment must involve the determination that the impairment,

"substantially Iimit[s] a major life activity of the individual."^^* Further, the

court cited a number of federal court opinions including one of its own opinions,
construing the Rehabilitation Act of 1973, that concluded "the question ofwho
is a handicapped person under the Act is best suited to a 'case-by-case

determination.
'"^^^

The court went on to consider the factual evidence before it and concluded

that there was no evidence in the record to support the view that the child in
question was "impaired, to any degree, or that he currently endures any
limitation, ... on any major life activity."^^^ The court did not explore the
medical understanding ofasymptomatic HIV infection, but simply assumed that
a finding ofdisability required a finding ofvisible physical manifestations ofthe

effects of HIV infection. The court found no such observable physical
manifestations citing the mother's admission that "her son suffers no ailments or

conditions that affect the manner in which he lives on a daily basis."^*^
The court in Ennis adopted the view that the only way asymptomatic HIV-

infection could be found to be a disability would be to regard all HIV-infected

persons as disabled. According to the court, in order to find the child "disabled

under the ADA, therefore, we would have to conclude that HIV-positive status

272. See id at 59 (citing 42 U.S.C. § 1 2, 1 02(2)).

273. Id. at 60-61 n.4 (discussing 29 C.F.R. § 1630.2(h)(1) (1994) and concluding that

"[ajlthough uncertain of the EEOC's authority to promulgate this regulation ... we do not

understand this regulation to be in conflict with the above conclusion.").

274. See id

275. See id 2d 59-60.

276. Mat 59.
277. See id.

278. Id

279. Id at 60 (quoting Forrissi v. Bowen, 794 F.2d 93 1 , 933 (4th Cir. 1 986); citing Chandler

V. City of Dallas, 2 F.3d 1385, 1396 (5th Cir. 1993); Welsh v. City of Tulsa, 977 F.2d 1415, 1417

(10th Cir. 1992); Byrne v. Board ofEduc, 979 F.2d 560, 564-64 (7th Cir. 1992); United States v.

Southern Management Corp., 955 F.2d 914-18 (4th Cir. 1992)).

280. Id

281. Id



822 INDIANA LAW REVIEW [Vol. 33:783

is per se a disability."^*^ Instead, the Ennis court took the view that

[t]he plain language of the statute, which contemplates case-by-case
determinations of whether a given impairment substantially limits a

major activity, whether an individual has record of such a substantially

limiting impairment, or whether an individual is being perceived as

having such a substantially limiting impairment, simply would not
permit this a [sic] conclusion.^^^

Ultimately the court concluded that the facts as presented did not support the

view that Ennis was discriminated against on the basis of her child's HIV-
infection.^*"*

B. Asymptomatic HIVIs "Per Se " Not a Disability Under ADA:
Runnebaum v. NationsBank ofMaryland

The Runnebaum opinions delivered by the Fourth Circuit represent the most
restrictive view ofthe application ofthe disability provisions ofthe ADA to HIV-
infected persons or, more particularly, to asymptomatic HIV-infected persons.^*^
The final plurality en banc opinion rendered in the series oiRunnebaum opinions
can be characterized as amounting to a view that asymptomatic HIV-infection is
per se not a disability under the terms ofADA.^^^ Although the decision of the

United States Supreme Court in Bragdon v. Abbott^^^ effectively negates the
significance ofmuch ofthe approach taken by the Fourth Circuit in Runnebaum
II, the possibility after the Abbott opinion remaining of individualized

determination of disability under the ADA suggests the value of a close
examination of the Runnebaum opinions. Part of the value of the Runnebaum
opinion is the opportunity it affords to observe the approach to statutory analysis

taken by the en banc plurality opinion in which limited its analysis to the facial

language ofthe statute eschewing the legislative history and agency regulations

that have played an important role in the opinions of other courts, including the

opinion of the United States Supreme Court in Bragdon v. Abbott
}^^

William Runnebaum, diagnosed as having asymptomatic HIV-infection,
claimed discrimination was the basis of the termination of his employment by

282. Id.

283. Id.

284. See id. at 62.

285. Runnebaum v. NationsBank of Md., 95 F.3d 1285 (4th Cir. 1996), affd, 123 F.3d 156

(4th Cir. 1997) (en banc) ("Runnebaum II").

286. See Runnebaum II, 123 F.3d at 176 (Michael, J., dissenting). The dissent observes: "I

believe the majority means to create aper se rule excluding those with asymptomatic HIV from the

protections of the ADA." However, the majority's responds "[t]he dissent would, perhaps, have

us hold that asymptomatic HIV infection is per se not a disability under the statute. As we discuss

below, however, we decline to do so." Id. at 167.

287. 524 U.S. 624 (1998).

288. Compare Runnebaum II, 123 F.3d at 169 n.7, with Bragdon, 524 U.S. at 624.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 823

NationsBank of Maryland in violation of the ADA^*^ and the Employment
Retirement Income Security Act (ERJSA).^^ To prevail on an ERISA claim, it
was necessary for Runnebaum to establish the elements required by the ADA.^^^
The federal district court, without issuing an opinion, granted the Bank's motion
for summaryjudgment on the ground that Runnebaum failed to establish a prima
facie case under the ADA.^^^ A divided, three-judge panel ofthe Fourth Circuit
reversed the district court's grant ofsummaryjudgment, holding that Runnebaum
had established a prima facie case of discrimination based on disability and had

raised issues ofmaterial fact as to whether he was fired because he was regarded
as having a disability.^^^

The opinion rendered by the three-judge panel {^'Runnebaum F) began its
analysis by referring to the elements ofdiscriminatory discharge set forth in the

ADA, including the requirement that a plaintiffestablish that he comes within the
class ofqualified persons for protection due to his disability.^^^ Further, the court

discussed the three prong definition of disability under the ADA^^^ and the
relevant EEOC regulations.^^ In addition, the court cited tojudicial authority^^^
and relevant regulations of various federal agencies^^* for the proposition that

asymptomatic HIV-infection is a disability per se. Nevertheless, the court found

the Fourth Circuit opinion in Ennis v. National Ass'n of Business and
Educational Radio binding and required an individualized inquiry for a finding

of disability under any of the three prongs ofthe ADA test.^^
The majority ofthe three-judge panel concluded that Runnebaum presented

289. 42 U.S.C §§ 12,101-12,213 (1994 & Supp. Ill 1997).
290. 29 U.S.C. §§ 1001-1461 (1994 & Supp. 1997).
291. See Runnebaum II, 123 F.3d at 175 (citing Conkwright v. Westinghouse Elcc. Corp.,

933 F.2d 231, 239 (4th Cir. 1991)).

292. See Runnebaum v. NationsBank ofMd., 95 F.3d 1 285, 1 287 (4th Cir. 1 996), qff'd, 1 23

F.3datl56.

293. See id at \296.

294. See id. at 1289 (citing Title I of the ADA, 42 U.S.C. § 12,1 12 (1994)).
295. See id (citing 42 U.S.C. § 12,102(2)).

296. See id (citing 29 C.F.R. § 1630.2(a)(2) (1994)).

297. See id at 1 289-90 (citing Gates v. Rowland, 39 F.3d 1 439, 1 446 (9th Cir. 1 994); Abbott

v.Bragdon, 912 F. Supp. 580, 585-86 (D. Me. 1995), o^^, 107F.3d934(lstCir. \991),andrev'd

wpar/, 524 U.S. 624 (1998); Doe v.KohnNast& Graf, P.C, 862 F. Supp. 1310, 1321 (E.D. Pa.

1994); Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 808 F. Supp. 120,

132 (N.D.N.Y. 1992); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990); Benjamin R. v. Orkin

Exterminating Co., 390 S.E.2d 814, 818 (W. Va. 1990)).

298. See id at 1289 (citing 29 C.F.R. § 34.2 (Department of Labor); 28 C.F.R. § 35.104

(Department of Justice); 24 C.F.R. ch. 1, Subch. A., app. I (Department of Housing and Urban

Developmeht); 7 C.F.R. § 15e.l03 (Department of Agriculture); 5 C.F.R. § 1636.103 (Federal

Retirement Thrift Investment Board); 22 C.F.R. § 1701.103 (Institute of Peace); 45 C.F.R. §

2301.103 (Arctic Research Commission)).

299. See id at 1290 (citing Ennis v. National Ass*n ofBus. & Educ. Radio, 53 F.3d. 55, 59-
60 (4th Cir. 1995)).



824 INDIANA LAW REVIEW p/ol. 33:783

enough circumstantial evidence to establish a prima facie showing that he was
terminated because he was regarded as having a disability^°® and that he was
performing his job at an adequate level.^°^ The court did not find it necessary to
make specific findings regarding the effects of HIV-infection in relation to the
terms "impairment" and "major life activity." Rather, the court found the

evidence established that: (1) bank employees knew Runnebaum was HIV-
positive [Runnebaum had reported his sero-positivity to a bank supervisor]; (2)
bank employees knew Runnebaum was taking AZT to treat his condition because
packages of his medication had been delivered to the bank and opened by bank
employees; and (3) the bank supervisor to whom Runnebaum had disclosed his
HIV infection reported that he felt "panicky" and "uncontrolled" and believed
death might be imminent for Runnebaum upon being informed of his
condition.

^*^^ The court concluded that this was enough to meet the evidentiary
requirements that the bank perceived Runnebaum as having an impairment that
substantially limited a major life activity.^^^ The court dismissed the argument
that Runnebaum's claim was undermined by the fact that he checked a box on an
employment form indicating that he was not handicapped at the time he applied

for thejob in the Bank's trust department.^*^ Instead, the court stressed that "the

attitudes of others determine whether a person has a disability within the

meaning" ofthe ADA.^°^

The court extensively discussed the reported reaction ofthe bank supervisor
to Runnebaum's disclosure ofhis status as HIV-positive.^*^ The court noted that
while there is a distinction between disabilities apparent to a casual observer

("[a]n employer can see a wheelchair, a guide dog, or a hearing aid") and those

that are not visible to the naked eye, both types ofdisabilities are covered by the

ADA.^°^ Moreover, the court noted, "[w]hen a disability is not readily apparent,

an employer's reaction upon learning ofthe disability can be relevant to a finding
of discrimination. Specifically, an employer's immediate reaction offers an

insight into his later firing a disabled employee."^^^ The reaction of the
supervisory bank employee, coupled with the fact that this employee reported his

knowledge ofRunnebaum's HIV infection to the individual who was ultimately
responsible for terminating Runnebaum, satisfied the court that Runnebaum had
presented sufficient evidence to raise a genuine issue of material fact as to

300. See id.

301. See id. dX\29\.

302. Id at 1296.

303. See id ?A\29\.

304. See id. at 1290 n.2.

305. Id

306. See id at 1290.

307. Id at 1295.

308. Id at 1295 n.8 (citing Lempres v. CBS Inc., 916 F. Supp. 15, 23 n.37 (D.D.C. 1996)
(Pregnancy Discrimination Act plaintiffmust meet requirements similar to those ofADA plaintiffs.
Pregnancy is not observable at first, yet an employer's reaction upon learning an employee is

pregnant may provide basis for finding discriminatory discharge.)).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 825

whether he was fired because he was regarded as having HIV disease.^^
However, the dissenting opinion in Runnebaum I concluded that even if

Runnebaum had established that he was an individual with a disability and had
met the requirements for a prima facie case ofdiscrimination under the ADA, the
Bank had presented sufficient evidence to establish a legitimate, non-pretextual,
non-discriminatory reason for his discharge.^ '° Specifically, the dissent

maintained Runnebaum failed to establish that he was meeting the Bank's
legitimate expectations at the time of his discharge.^

^*

Also, it is significant that the dissent did not find that Runnebaum met the
three-prong definition of disability in the ADA.^'^ The dissent agreed with the
majority that Runnebaum was required to establish the presence of an
"impairment" affecting a "major life activity." However, the dissent maintained

that the majority had provided no significant analysis ofthe facts in the case to
support the conclusion that the terms of the statute were satisfied.^ ^^ In a

footnote, the dissent briefly addressed whether Runnebaum was disabled because
he suffered an actual physical or mental impairment as a result of being HIV
positive.^ '^ Because Runnebaum was asymptomatic for approximately four years
prior to his termination, the dissent maintained he had neither suffered affliction

from his HIV infection, nor experienced any significant side effects from the
prescribed AZT medication.^ '^ The dissent concluded, without citation to the
record, that: "Runnebaum has consistently maintained that he endures no
impairment that substantially limits a major life activity, thereby proving that he

is not disabled under the first prong of the ADA's definition of a disability."^ ^^

The dissent then addressed the question of whether Runnebaum was "regarded
as" disabled because of his asymptomatic HlV-infection.^^^ The dissent
maintained that Runnebaum's disclosure of his HIV-infection to a fellow bank
employer was done in a social context in the form of a discussion between
friends.^'* The reported feelings of "panic" were viewed by the dissent as the
natural reaction ofan associate ofbeing "disheartened on learning that his friend

was HIV-positive."^^' Moreover, the dissent concluded that the fellow employee
"was solicitous ofRunnebaum's health and sympathetic to Runnebaum's needs,
with the fellow employee styling himself as Runnebaum's ' protector. '"^^^

Finally, the dissent observed that no showing was made to link knowledge of

309. Seeid.2X\291.

310. 5ce /</. at 1305 (Williams, J., dissenting).

311. Seeid.2XU0Z.

3 12. See id. at 1302 (finding that 42 U.S.C. § 12,102(2) (1994) does not apply).

313. See id

314. 5ee/i/. atl303n.5.

3 1 5. See id. (citing the trial record).

316. I^.

317. /</. atl302.

318. 5«e/^. at 1302-03.

319. Id

320. Id at 1303.



826 INDIANA LAW REVIEW [Vol. 33:783

Runnebaum's HIV status to the decision to discharge him; therefore, the dissent
concluded that "Runnebaum failed to show that he was regarded as having a
disability."'^'

The Fourth Circuit vacated the opinion issued in the three-judge panel in
Runnebaum /and granted an en banc rehearing,'^^ The issues before the en banc
court were somewhat altered as the result ofan amicus briefto the Fourth Circuit
filed by the legal department ofWhitman-Walker Clinic ("WWC"), a community
health center in Washington, D.C. specializing in services related to AIDS and
HIV-infection, along with a brief filed by the EEOC. WWC's brief argued that
a person with HIV-infection has an "impairment" under the terms of the ADA
"because from the outset it [HIV] infects the blood and lymphatic system and

progressively destroys the immune system."'^' Similarly, the WWC brief
maintained that all persons with HIV infection, whether symptomatic or
asymptomatic, meet the definition of"disability" in the ADA because their viral
infection substantially limits major life activities including parenting and
pageantry, intimate personal relations, the ability to plan for the future, certain

career options, access to health, life and disability insurance, and the ability to

travel.'^^

The WWC brief provided an account of HIV infection and AIDS that
portrays the disease progressing through various phases, rather than as a series

of independent disease conditions.'" HIV infection is said to mark the start of
disease progression which, within a month, is likely to be manifested in a short-

term mononucleosis-like condition.'^^ Although antibodies can be detected in the

blood within six months of infection, a person may not manifest any significant
observable physical symptoms, the so-called "asymptomatic phase."'^^ However,

the WWC briefpointed out that during this so-called asymptomatic phase, HIV
is active in the hemic (blood) and lymphatic system and compromising the

immune system ("progression of HIV disease is associated with characteristic
immunopathic changes in lymphoid tissue").'^^ Medical treatment following a

determination ofHIV infection may include, among other interventions, dietary
plans and medication including protease inhibitors to slow viral reproduction.'^^

321. Id.

322. See Runnebaum v. NationsBank of Md., 123 F.3d 156 (4th Cir. 1997) (en banc).

323. Brief of Amicus Curiae, Whitman-Walker Clinic Legal Services at 3, Runnebaum v.

NationsBank of Md., 123 F.3d 156 (4th Cir. 1997) (en banc) (No. 94-2200) (supporting

plaintif£^appellant on the issue of disability).

324. /^. at4.

325. See id. at 5.

326. See id. (citing JOHN G. Bartlett, MEDICAL MANAGEMENT OF HIV Infection 2-3

(1995)).

327. Id. (citing BARTLETT, supra note 326, at 3-4).

328. Id. at 6 (citing Oren J. Cohen et al.. Pathogenic Insights from Studies ofLymphoid

Tissuefrom HIV-infectedIndividualsy 1 J. ACQUIREDIMMUNE DEFICIENCY SYNDROMES&HUMAN
Retrovirology 56, 56-512 (Supp. 1 1995)).

329. See id. at 7 (citing RONALD A. BAKER ET AL., EARLY CARE FOR HIV Disease 22-23



2000] AIDS FEDERAL CIVIL RIGHTS LAW 827

As physical symptoms develop, including opportunistic infections and disease,
one is ultimately diagnosed with AIDS."^

The WWC briefalso addressed the issue ofwhether HIV infection should be
regarded as a per se disability.^^' Maintaining that the language ofthe ADA does
not preclude HIV infection from being regarded as a disability, the WWC brief
argues, "treating HIV disease as a per se disability is not inconsistent with the
existence of impairment which substantially limits major life activities in every

afflicted individual. For instance, blindness and deafness are impairments that

inherently are substantially limiting.""^

The en banc hearing in Runnebaum //resulted in a split opinion: sixjustices
agreed that Runnebaum was not disabled and had failed to show he was fired
because he was regarded as disabled;"^ one justice concurred in the judgment

that Runnebaum had failed to establish that he was fired because of a disability
but maintained that the question of whether Runnebaum was disabled was not
before the court;""* five justices dissented maintaining that Runnebaum had
presented sufficient evidence ofdisability and discrimination to defeat summary
judgment.^^^

In Runnebaum II, the majority of the en banc panel of the Fourth Circuit
affirmed the district court's grant ofsummaryjudgment in favor ofNationsBank,
holding that Runnebaum had failed to establish a prima facie case of
discrimination based on disability in violation ofthe ADA."^ The court held that
Runnebaum's asymptomatic HIV-infection was not shown to have resulted in a
disability; that Runnebaum had failed to show that his employer perceived him
to be disabled; that Runnebaum had failed to raise a reasonable inference of
unlawful discrimination; and, that Runnebaum 's employer had articulated
legitimate non-pretextual, non-discriminatory reasons for Runnebaum 's
discharge.^^^

To overcome the grant of summary judgment, the Fourth Circuit noted that
Runnebaum was required to establish a prima facie case ofdiscrimination under
the ADA"* The majority in Runnebaum //recognized that to establish a prima
facie case of discrimination in a discharge case under the ADA, the plaintiff is
required to prove by a preponderance ofthe evidence that he was (1) a member

(1991); Bartlett, supra note 326, at 61-63, 279-84; Marianna K. Baum et al.. Micro nutrients

andHIV-1 Disease Progression, 9 AIDS 1051-55 (1995)).

330. See id. (citing Lynda S. Doll & Beth A. Dillon, Counseling Persons Seropositivefor
Human Immunodeficiency Virus Infection and Their Families, in AIDS: ETIOLOGY, DIAGNOSIS,

Treatment and Prevention 533 (Vincent T. DiVita, Jr. et al. eds., 4th ed. 1997)).
331. Seeid2X\5'13.

332. Id. at 17 (emphasis added).

333. See Runnebaum v. NationsBank of Md., 123 F.3d 156, 176 (4th Cir. 1997) (en banc).

334. See'id

335. ^ee/f/. at 176-89.

336. See id si MS.

337. See id. at 1 64-75 (applying McDonnell Douglas Corp. v. Green, 4 1 1 U.S. 792 ( 1 973)).

338. See id. at 164 (applying McDonnell Douglas Corp., 411 U.S. at 792).



828 INDIANA LAW REVIEW [Vol. 33:783

ofthe protected class ("a qualified individual with a disability" as defined by the
ADA); (2) discharged; (3) performing his job at a level that met the employer's
legitimate expectations at the time of his discharge; and (4) discharged under
circumstances that raise a reasonable inference of unlawful discrimination."^

The majority devoted considerable attention to the contention that
Runnebaum was an individual with a disability under the ADA because he was
HIV-positive or was diagnosed with asymptomatic HIV infection.^"^^ Although
the previous court opinions involving Runnebaum did not undertake such
analysis, the majority noted that the WWC and the EEOC appearing as amicus
curiae took the position that asymptomatic HIV infection is a disability per se
under the ADA.^^*

Following the approach ofall courts undertaking an analysis ofwhether HIV-
infection is a disability, the majority in Runnebaum II began its analysis by
considering the four-prong definition of disability in the ADA.^"*^ Following its

own opinion in Ennis, the Fourth Circuit maintained that a finding of disability
must be made on an individualized basis.^^^ The court avoided consideration of
the suggestion made in the brief ofthe WWC that an individualized assessment
does not preclude the fact that a particular condition constitutes a per se

disability. It is clear, for example, that a case-by-case analysis ofindividuals who
were blind would always result in a finding ofdisability because blindness would

always constitute an impairment that would substantially limit the individual's
major life activity of seeing.^'*^

Instead, the majority proceeded to consider (1) whether asymptomatic HIV
infection is a physical or mental impairment, and (2) whether asymptomatic HIV
infection, if an impairment, substantially limits one or more major life
activities.^*^ The majority was quick to note that the Supreme Court had yet to
rule on the issue of whether asymptomatic HIV infection constituted an
impairment, citing the footnote in School Board ofNassau County v. Arline, in
which the Supreme Court in 1987 declined to reach a decision on the issue.^'*^

Surprisingly, in the Runnebaum //opinion in 1997, the majority did not seem to
have a clue as to the approach that would be taken by the Supreme Court in
I99g 347 j^Q Supreme Court in fact relied on a significant body of case law

339. Id. (construing 42 U.S.C. § 1 2, 1 12(2) (1994) and citing Ennis v. National Ass'n ofBus.

& Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995)).
340. See id at 165-73.

341. See id at 161 n.l, 165-66.

342. See id at 166 (citing 42 U.S.C. § 12,102(2)).

343. See id. (citing Ennis, 53 F.3d at 59).

344. See Brief of Amicus Curiae, supra note 323, at 1 6- 1 7, Runnebaum v. NationsBank of

Md., 123 F.3d 156 (4th Cir. 1997)).

345. See Runnebaum II, 123 F.3d at 167, 170 (citing 42 U.S.C. § 12,102(2)(A)).

346. See id at 167 (citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 n.7

(1987) (declining to decide whether any asymptomatic HIV-infected person could be considered

to have a physical impairment)).

347. See Bragdon v. Abbott, 524 U.S. 624 (1998).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 829

developed after 1987 adopting an approach that considered relevant the extensive

body of medical and scientific literature, the legislative history, the regulations

promulgated by designated agencies, and the large body of judicial opinions
considering the issue.^'** The Runnebaum //majority found it easy to dismiss this
body ofauthority as irrelevant even though the court in Runnebaum I TcpQatQdly
cited the district court opinion in Abbott v. Bragdon?^^ The Supreme Court
ultimately upheld this opinion overruling sub-siliention a number ofthe findings
adopted by the Runnebaum II majority. Rather, the Runnebaum II approach to
determining the applicability ofthe ADA to the facts established by Runnebaum
involves the court's use of a currently fashionable approach to statutory

interpretation, embraced underthe claim ofjudicial restraint that limits, wherever

possible, judicial inquiry in statutory interpretation to the language ofthe statute

under the rubric of plain language analysis.^^° This Runnebaum II approach
adopts three maxims of statutory interpretations: (1) "When confronted with a
question ofstatutory interpretation, our inquiry begins with an examination ofthe

language used in the statute;"^^^ (2) Where "statutory language is plain and
admits of no more than one meaning, the duty of interpretation does not arise"

since the court should apply the statute in conformity to the language used;^^^ and

(3) When "a word is not defined by statute, we normally construe it in accord
with its ordinary or natural meaning."^^^

In taking this approach, the Runnebaum II majority does not follow the
approach to statutory interpretation favored by most courts that begin their

analysis with a consideration of the definition of "impairment" given by the

designated federal agency, in this case the EEOC.^^'* Instead, the court looked to

four separate dictionaries for the meaning of a term which it assumes to be

understood as a matter of"standard" usage rather than as a matter of "statutory"

usage and the intent of the drafters of the statute.^^^ The court focused on the

348. See id.

349. 912 F. Supp. 580 (D. Me. 1995), afTd, 107 F.3d 934 (1st Cir. 1997) (discussing issue

of whether procreation and intimate sexual relations are "major life activities"), and rev 'd in part,

524 U.S. 624 (1998). See Runnebaum II, 123 F.3d at 168-70 (citing Abbot, 107 F.3d at 939-41

(holding that asymptomatic HIV is always an impairment and that procreation is a major life

activity)).

350. See Runnebaum II, 123 F.3d at 167.

351. Id. (citing Faircloth v. Lundy Packing Co., 91 F.3d 648, 653 (4th Cir. 1996), cert,

denied, 519 U.S. 1077 (1997)).

352. Id (citing United States v. Murphy, 35 F.3d 143, 143-45 (4th Cir. 1994)).

353. Id (citing Smith v. United States, 508 U.S. 223, 228 (1993)).

354. See, e.g. , Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763, 773 n. 1 8 (E.D. Tex.

1996) (citing 29 C.F.R., § 1630, app. to Part 1630-Interpretations Guidance to Title I of the APA
§ 1630.2(g) (1*995)).

355. Runnebaum II, 123 F.3d at 167 (citing definition of term "impair" in BLACKS LAW
Dictionary 677 (5th ed. 1981) ("To weaken, to make worse, to lessen in power, diminish, or relax

or otherwise affect in an injurious manner); Webster's II New Revised University Dictionary
612 (1988) ("[D]ecrease in strength, value, amount, or quality"); WEBSTER'S Ninth New



830 INDIANA LAW REVIEW [Vol. 33:783

definition of "impair[ment]" as to "make worse by or as if by diminishing in
some material respect" provided in Webster's Ninth New Collegiate
Dictionary?^^ From this type of definition the Runnebaum II majority adopted
the totally unjustified view that an impairment must have some external
observable physical "symptomatic" manifestation.^^^ ThQRunnebaumIImdipnty
reasoned that the required showing of impairment "cannot be divorced from its

dictionary and common sense connotation of a diminution in quality, value,
excellence or strength."^^* According to the court: "[A]symptomatic HIV
infection is simply not an impairment: without symptoms, there are no

diminishing effects on the individual.""^

The Runnebaum II majority misconstrued the meaning of both the term
"impairment" and the term "asymptomatic HTV infection" because of its
simplistic understanding of language, namely that words have a clear meaning
independent of context and usage. The term "impairment as it relates to the
question of whether a person is disabled within the terms of the ADA is to be
understood in the context of the Americans with Disabilities Act, enacted by

Congress and enforced by designated agencies under duly promulgated

regulations. The term "asymptomatic HIV infection is to be understood in the
context of medical usage rather than simply meaning "no symptoms.'" Certain

facts about HIV infection have long been known. For example, an asymptomatic
HIV-infected person's condition may not always be detectable by superficial
physical observation even though such a person is infected and infectious,^^^ has

a compromised immune system,^^* may not engage in "unprotected" intercourse
without assuming the risk ofinfecting the sexual partner,^^^ often cannot engage

in specified sexual acts without violating criminal laws that imposes penalties for

such sexual conduct,^^^ and may not engage in reproduction without some

Collegiate Dictionary 603 (1986) ("[Mjake worse by or as ifby diminishing in some respect*');

and Webster's Third New International Dictionary 1131 (1986) ("[D]eterioration" or
"lessening"). Cf. definition of "impairment" in Stedman'S MEDICAL DICTIONARY 857 (26th ed.

1995) ("[a] physical or mental defect at the level of a body system or organ." The official World

Health Organization definition is "any loss or abnormality of psychological, physiological or

anatomical structure of function")).

356. Runnebaum II, 123 F.3d at 168 (emphasis added) (citing WEBSTER'S Ninth New
Collegiate Dictionary 603 ( 1 986)).

357. Id.

358. Id (citing Torres v. Bolger, 781 F.2d 1 134, 1 138 (5th Cir. 1986)).

359. Id

360. See generally Redfield & Burke, supra note 6, at 90.
361. See William Long et al. , Clinical, Immunologic, andSerologic Findings in Men at Risk

for Acquired Immunodeficiency Syndrome: The San Francisco Men 's Health Study, 257 JAMA
326(1987).

362. Centers for Disease Control Public Health Service Guidelines for Counseling and

Antibody Testing to Prevent HIV Infection andAIDS, 36 MMWR 509 (1987).
363. See, e.g., Ra. Stat. § 384.24 (West 1998); 720 III. Comp. Stat. § 5/12-16.2(d) (West

1993); La. Rev. Stat. Ann. § 14:43.5 (West 1997).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 831

likelihood of producing an infected child.^^ The court, in regarding physical

symptoms as the sine qua non of impairment, overlooks the fact that laboratory
tests of asymptomatic HIV-infected persons would reveal the "diminishing"

effects ofHIV infection and the "decrease in strength, value, amount or quality"
ofthe immune system of infected persons by revealing the presence ofthe virus
in the blood cells ofthe HIV-infected person as well as by the reduction in the

T-cell count of the individual indicating a suppressed immune system.^^^
Certainly, after the Supreme Court's decision in Arline, the Runnebaum //court
should have recognized that a finding of disability does not necessarily require

obvious physical manifestation of symptoms.

Instead, the Runnebaum //court adopted a simple two-step analysis in order
to reach the conclusion that asymptomatic HIV infection does not constitute an
"impairment." According to the court: ( 1 ) "[t]he plain meaning of ' impairment'

suggests that asymptomatic HIV infection will never qualify as an impairment by
definition, asymptomatic HIV infection exhibits no diminishing effects on the
individual"^^; and (2) "[e]xtending the coverage of the ADA to asymptomatic
conditions like Runnebaum 's where no diminishing effects are exhibited, would
run counter to Congress's intention as explained in the plain statutory

language."^^^

The Runnebaum II majority recognized that other courts had found
asymptomatic HIV infection constituted an impairment under the ADA.^^*
However, the court construed these opinions as inappropriately relying on

legislative history that theRunnebaum //court found ambiguous.^^^ For example,
the House and Senate reports indicated that the term "mental or physical

impairments" includes "infection with the Human Immunodeficiency Virus."^^^
By employing the "plain" language approach, the court totally ignored the
legislative record that indicated that Congress understand HIV infection, whether
symptomatic or asymptomatic, to constitute a disability. The distinction was
clearly known to the members of Congress enacting legislation and their
intention to provide disability protection to those who suffered from
asymptomatic HIV infection was consumately clear in the record, through

364. See, e.g., Edward M. Connor et al, Reduction of Maternal-Infant Transmission of

Human Immunodeficiency Virus Type I with Zidovudine Treatment, 33 1 NEW EnG. J. MED. 1 173
(1994).

365. See. e.g., Michael S. Saag, Natural History ofHIV-I Disease, TEXTBOOK OF AIDS

Medicines 45, 49 (Samuel Broder et al. ed. 1994); Cecil, Textbook of Medicine 1908 (James

B, Wyngarden et al. eds., 19th ed. 1992).

366. Runnebaum v. NationsBank of Md., 123 F.3d 156, 169 (4th Cir. 1997) (en banc).

367. Id at 168.

368. See id. (citing Abbott v. Bragdon, 107 F.3d 934, 939 (1st Cir. 1997) (concluding that

asymptomatic i\W infection is an impairment under the ADA), rev 'din part, 524 U.S. 624 (1998);
Gates V. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994)).

369. See id

370. Id at 168-69 (citing H.R. Rep. No. \0\A%5{\\), reprinted in 1990U.S.C.C.A.N. § 303;

H.R. REP. No. 101-485 (III), reprinted in 1990 U.S.C.C.A.N. § 445; S. REP. No. 101-1 16 (1989)).



832 INDIANA LAW REVIEW [Vol. 33:783

statements in the contemporary Congressional Record.^^' However, the
Runnebaum //majority maintained that "the isolated references to HIV infection
in the Committee Reports do not distinguish between symptomatic and
asymptomatic conditions as the plain meaning of 'impairment' requires."^^^ The
court's talisman of statutory interpretation, the plain meaning approach, allows
it to reach what it views as an apparently transparent conclusion that "the
statutory meaning of 'impairment' is plain and unambiguous. Accordingly, we
have no reason to resort to the legislative history to ascertain Congress's
intent."^^^

The Runnebaum //majority further considered whether asymptomatic HIV
infection substantially limits one or more of the major life activities assuming
arguendo that asymptomatic HIV infection constitutes an impairment.^^'* Noting
that the ADA itself does not define "major life activity," the court did not turn
to the relevant EEOC regulations and related judicial interpretation. Instead the
court invoked its vehicle of statutory interpretation, "ordinary and natural

meaning."^^^ The court's analysis focused on dictionary definitions^^^ ofthe term
"major" to reach the unsurprising understanding that "[t]hese definitions suggest

that an activity qualifies under the statutory definition as one of the major life

activities contemplated by the ADA if it is relatively more significant or
important than other life activities."^^^ The deficiency ofthe courts approach to
statutory interpretation became clear when one compares it to the information
one can quickly glean from an examination of the EEOC regulations and
guidelines discussed earlier in this article.^^^

One aspect of the Runnebaum II analysis that may prove important in
subsequent litigation relates to what the court suggested must be shown to be the
relationship between the "major life activity" impaired by HIV infection and the
individual plaintiffs relationship to that activity, i.e., must it be an activity that
the individual desires to or would be engaged absent the impairment.^^^ The
Runnebaum //majority comes to the surprising conclusion that "courts need only
consider whether the impairment at issue substantially limits the plaintiffs

ability to perform one ofthe major life activities contemplated by the ADA, not

371. See, e.g., 136 CONG. Rep. H2626 (May 22, 1990) (remarks ofRep. McDermott) ("I am

particularly pleased that this act will fmally also extend necessary protection to people with HIV

disease. These are individuals who have any condition along the full spectrum of HIV

infection—asymptomatic HIV-infection, symptomatic HIV infection, or full blown AIDS.").
372. Runnebaum II, 123 F.3d at 169.

373. Id. at 168 (citations omitted).

374. See id. at 170 (citing 42 U.S.C. § 12,102(2)(A) (1994)).

375. Id (citing Smith v. United States, 508 U.S. 223, 228 (1993)).

376. See id. (citing WEBSTER II NEW RIVERSIDE UNIVERSITY DICTIONARY 718 (1988);
Webster's Third New International Dictionary 1363 (1986)).

377. Id

378. Compare discussion of"major life activity" in Runnebaum II, 123 F.3d at 171, with 29

C.F.R. § 1630.2(i) (1999) a«cr29C.F.R. Appendix to § 1630.2(i).

379. See Runnebaum II, 1 23 F.3d at 1 70.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 833

whether the particular activity that is substantially limited is important to him."^*^

This view, ofcourse, leaves open another aspect ofthe relationship between the

impairment ofHIV infection and the ability ofthe individual to otherwise engage
in the activity; even if reproduction is a major life activity impaired by HIV-
infection, would a post-menopausal women, who would not be capable of
engaging in reproductive activity, be regarded as disabled because of the effect

of HIV-infection on the ability to engage in reproductive activity?
The Runnebaum II majority also addressed the question of whether

procreation and intimate sexual relations are major life activities for the purpose

ofADA disability coverage.^^' Conceding that each of these is a "fundamental
human activity,"^*^ the court, nevertheless expressed doubt as to whether these
are "major life activities" under the ADA.^" Without deciding whether the
activities are included within the meaning ofmajor life activities under the ADA,
the Runnebaum //majority concludes, that even assuming that they are covered
activities, asymptomatic HIV-infection does not "substantially limit" the ability

to procreate or engage in intimate sexual relations.^*"* The court gave significant
weight to the 1988 DOJ Memorandum that opined that some courts might find
asymptomatic HIV infection limits procreation because individuals will forego
having children for fear of producing an infected child, and because individuals

will forego intimate sexual relations because of fear of infecting others.^*^

However, in the courts view the 1988 DOJ Memorandum equivocated on this
issue since it stated that "there is nothing inherent in the [HIV] infection which

actually prevents either procreation or intimate [sexual] relations."^^^

The court further held that asymptomatic HIV infection does not limit
procreation or intimate sexual relations for purposes of the ADA.^*^ The court
reasoned that asymptomatic HIV infected individuals can and have procreated
and have engaged in intimate sexual relations.^^^ The court sees the decision to
be one ofbehavior and mores and not one involving a "causal nexus between the

physical effect of the impairment and one of the major life activities."^*^ One

380. Seeid. (citing Abbott v. Bragdon, 107F.3d934,941 (IstCir. 1997), rev 'din part, 524

U.S. 624(1998)).

381. See id Sit \70-72.

382. Id at 170 (citing WWC Brief at 19-20; EEOC Brief at 17).
383. Id (citing Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996)

(holding that procreation is not one ofthe major life activities under the ADA); Zatarin v. WDSU
Television, Inc., 79 F.3d 1 143 (5th Cir. 1996), ajfg 881 F. Supp. 240, 243 (E.D. La. 1995)).

384. Id at 172.

385. See id. at 1 7 1 -72 (discussing Memorandum from Douglas W. Kmiec, Acting Assistant

Attorney General, Office of Legal Counsel to Arthur B. Culvahouse, Jr., Counsel to the President

(Sept. 27, 1 988), reprinted in 8 FairEmpl. Prac. Manual (BNA) No. 64 1 at 405:4-7) [hereinafter

Kmiec Memorandum].

386. Id. at 171 (citing Kmiec Memorandum, supra note 385, at 405:7).

387. Seeid. at \72.

388. See id.

389. Id (construing 42 U.S.C. § 12,102(2)(A) (1994)).



834 INDIANA LAW REVIEW [Vol. 33:783

might observe that under this analysis a monk who had undertaken the vow of
silence would not be disabled because his decision not to speak was not a matter
of physical inability but a choice made in pursuance of self mortification.

To some extent, one must question the integrity of the court's reasoning in
Runnebaum 11. It is pervaded with inconsistency. When accused by the dissent
oftaking the position that asymptomatic HIV-infection is per se not a disability,

the majority countered with the statement "[t]he dissent would, perhaps, have us

hold that asymptomatic HIV infection is per se not a disability under the statute.
As we discuss below, however, we decline to go so far."^^ Later, however, the
court concluded "[t]he plain meaning of 'impairment' suggests that
asymptomatic HIV infection will never qualify as an impairment: by definition,
asymptomatic HIV infection exhibits no diminishing effects on the individual."^''
Similarly, the court initially took the position that "courts need only consider

whether the impairment at issue substantially limits the plaintiffs ability to

perform one of the major life activities contemplated by the ADA, not whether
the particular activity that is substantially limited is important to him."^'^ In

complete contradiction to this position, the court determined that even if

procreation and intimate sexual relations are major life activities, the lack of

evidence of Runnebaum's intention to otherwise engage in these activities
precluded a finding that he was disabled.^'^ The Runnebaum 11 majority
reasoned:

Even if the statute permitted a finding that asymptomatic HIV infection
substantially limits procreation and intimate sexual relations because of

a person's response to the knowledge of his infection, there is no

evidence in the record that Runnebaum, because of his infection,
forewent having children or engaging in intimate sexual relations.

Nothing in the record indicates that Runnebaum refrained from having
children out of fear that he would pass the virus on to his child. Indeed,

nothing in the record so much as suggests that Runnebaum was at all
interested in fathering a child. Moreover, the record makes clear that
Runnebaum's ability to engage in intimate sexual relations was not
substantially limited by his HIV infection; the record shows that he
concealed his HIV infection from his lover. Ergo, Runnebaum 's HIV
infection, if an impairment, does not substantially limit one or more of
the major life activities . . . }^

The court's straightforward ability to take contrary positions is only exceeded by
its arrogance in concluding that Runnebaum's decision not to disclose his HIV
status to his partner meant that he was having unprotected sexual relations with

390. Id. at 167. Cf. id. at 176 (Michael, J., dissenting).

391. /c/. at 169.

392. /^. at 170.

393. SeeiddXin.

394. Id



2000] AIDS FEDERAL CIVIL RIGHTS LAW 835

his lover of the kind that would facilitate transmission of HIV.^'* Finally, the

court turned a blind eye to the existence of criminal statutes providing severe

penalties for individuals who engage in intimate sexual relations of the type
likely to facilitate transmission of HIV.^^^

After expounding at length on whether Runnebaum was disabled, an issue
apparently conceded at the trial level,^'^ the court turned to the actual claim that

NationsBank fired Runnebaum because it regarded him as having an impairment
that substantially limited one or more of the major life activities.^^* The court
concluded that none ofthe evidence submitted by Runnebaum was sufficient to
create a genuine issue of material fact establishing that NationsBank perceived

Runnebaum as disabled.^^ Moreover, the court concluded that the evidence did
not show that Runnebaum was meeting his employer's legitimate expectations,
nor did the evidence show that Runnebaum's termination took place under
circumstances raising a reasonable inference of discrimination/^

The extensive dissent in Runnebaum //^' not only came to different
conclusions on every issue discussed by the majority, but also expressed the

opinion that there was a disingenuousness in the majority's opinion particularly
with regard to the majority's position that "Runnebaum produced no evidence
showing that he was impaired, to any degree, during the relevant time period.

"^^^

The dissent points out that at the trial level hearing on the motion for summary
judgment, the employer conceded the issue of existence of "impairment;"

therefore, no evidence was presented on this issue/°^ It is clear from the record
that NationsBank conceded that Runnebaum was disabled under the terms ofthe

395. See id Cf. id at 185 (Michael, J., dissenting):

Regarding intimate sexual relations, the majority makes the bold assertion: ''the record

.

makes clear that Runnebaum's ability to engage in intimate sexual relations was not

substantially limited by his HIV infection; the record shows that he concealed his HIV

infection from his lover." . . . That is too much of a leap for me. I would not presume

to know the status of Runnebaum's 'intimate sexual relations' merely because he has

a boyfriend.

396. See, e.g., FLA. STAT. § 384.24 (West 1998); 720 ILL. COMP. STAT. § 5/12-16.2(d) (West

1993); La. Rev. Stat. Ann. § 14:43.5 (West 1997).

397. CompareRunnebaum II, 1 23 F.3d at 1 77-78 (where the dissent maintains the defendant

conceded Runnebaum's disability in district court), with id. at 165 n.4 (where the majority asserts

that the district court merely assumed "for the purpose ofthe [summaryjudgment] motion, that even

an asymptomatic HIV infection may be a disability . . ." concluding "[wjhether asymptomatic HIV

infection is a disability under the statute is primarily a question of law, the facts pertaining to this

issue are sufficiently developed, and the issue was briefed [by Runnebaum's counsel] and argued

on appeal").

398. See id at 172-16.

399. Slee id ?ii 173-76.

400. See id BX \75-76.

401

.

See id. at 1 76-90 (Michael J., dissenting).

402. Id. at 178 (citing id. at 169 (majority opinion)).

403. Id at 177.



836 INDIANA LAW REVIEW [Vol. 33:783

ADA and, consequently he suffered the necessary "impairment."'*^ In its
memorandum to support a motion for summary judgment, NationsBank
acknowledged that the plaintiff "is a member of a protected class (HIV-positive
being a protected category under 42 U.S.C. § 12,102([2])."^^^ The dissent also
quoted Runnebaum's lawyer's statement at the en banc hearing where the lawyer
states in part "[i]t was assumed that he [Runnebaum] met the standards under the
Act to be disabled, and the whole case was premised, discovery and everything
was premised from that point forward, on the fact that it was conceded that he
was disabled."'^

The dissent also observed that the majority did not develop an accurate
account of the disabling effects of asymptomatic HIV infection ."^^^ The dissent
cited medical authorities that describe the effect of the virus' immediate attack

on the immune system, along with the presence ofthe virus and its reproduction
in the hemic (blood) and lymphatic systems with measurable decline in CD4 cell
counts.'*^* The dissent explicitly rejected the majority's contention that an ADA
impairment must involve the exhibition of observable physical symptoms.

Instead, the dissent maintained "[n]owhere does the text ofthe statute, however,

require a 'physical impairment' to be outwardly visible or manifest. The effects
ofthe HIV virus may not be noticeable to the outside world until the later stages
of the disease, but the body is impaired as soon as the disease enters iV*^
Moreover the dissent takes notice ofthe Fourth Circuit's own opinion in Doe v.
University ofMaryland Medical System, Corp., where the court found an HIV-
infected surgeon not otherwise qualified to carry out his surgical functions

because of his HIV infection, for the proposition that infectiousness or
contagiousness might constitute an impairment establishing the basis for a claim

that an individual was disabled within the meaning of the ADA.'*'^ Next the
dissent faulted the majority for its total disregard oflegislative history, regulatory

interpretation, and the substantial body ofjudicial construction that runs directly

404. Id

405. Id. (citing trial transcript).

406. Id. at 178 (citing en banc Oral Argument, Mar. 5, 1997).

407. See id ax no.

408. See id. (citing Cecil, supra note 365, at 1908) (describing slow progressive decline in

CD-4 positive cells); Martin A Nowak, AIDS Pathogenesis: From Models to Viral Dynamics in
Patients, 10 J. ACQUIREDIMMUNEDEFICIENCY SYNDROMES&HumanRETROVIROLOGY, SI (Supp.
1, 1995) (noting effect ofinfection in viral levels and decline in CD4 cell counts); Saag, supra note
365, at 46 (describing infection resulting in acute retroviral seroconversion syndrome); Christine

Gorman, Battling the AIDS Virus: There 's Still No Cure, but Scientists and Survivors Make

Striking Progress, TIME, Feb. 12, 1996, at 62 (virus is active in body from time of infection)).

409. Id. at 181 (citing Letter from C. Everett Koop, M.D., Surgeon General to Douglas W.

Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice,

reprinted in 8 FAIR Empl. Prac. MANUAL (BNA) No. 641 at 405:18, 405:19).
410. See id. at 181 n.5 (citing Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261 (4th

Cir. 1995) (potential for HIV transmission by infected surgeon made him not otherwise qualified)).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 837

contrary to the various conclusions of the majority.''"

While the dissent did not totally reject the "plain meaning" approach to
statutory interpretation, the dissent maintained that the statutory terms of the

ADA are sufficiently ambiguous to require guidance from the legislative history
and implementing regulation."*^^ The dissent observed that both the House and
Senate Committee Reports accompanying enactment clearly stated that HIV
infection is to be considered an ADA impairment/'^ Moreover, specific remarks
of certain sponsors are unequivocal. For example, the statement of Senator

Kennedy noting that "in the particular provision of the legislation we have
pointed out very clearly, if you are asymptomatic and HIV positive, you are
protected.'"*''* In addition, the dissent found confirming support in the relevant

implementing regulations of the agency, designated by Congress, that are

virtually ignored by majority."*'^

The dissent next examined the requirement ofthe ADA that the impairment
substantially limit one or more major life activities.'*'^ The dissent concluded that
the language ofthe statute, the legislative history, and implementing regulations

all support the view that procreation and intimate sexual activity are major life

activities.'*'^ The dissent directed attention to the distinction drawn by the
majority between "substantially limiting as a physical matter" and "substantially

limiting as a behavioral matter."^'* The dissent noted that this distinction finds
no basis in the statutory text and stated, "[t]here is no requirement that the

impairment physically limit that life activity, nor is there any specification about

howthe impairment must substantially limit that activity."'*'^ Neither is there any
basis in the legislative history, nor in the implementing EEOC regulations for the
distinction drawn by the majority.*^° The dissent concluded that "[t]he majority's

411. See id at lS\-^3.

412. M at 181 (citing Green v. Bock Laundry Machine Co., 490 U.S. 504, 508 (1989)
("[C]oncluding that the text is ambiguous ... we seek guidance from legislative history. . . .");

Torcasio v. Murray, 57 F.3d 1340, 1353 (4th Cir. 1995) (finding the ADA's textual definition of

"disability" to be "unilluminating")).

413. See id. (citing H.R. REP. No. 101-485, pt. 2 at 51, reprinted in 1990 U.S.C.C.A.N. §

303, 333) C'lt is not possible to include in the legislation a list of all the specific conditions,

diseases, or infections that would constitute physical or mental impairments .... The term

includes, however, such conditions, diseases, and infections as . . . infection with the Human
Immunodeficiency Virus ")). Accord S. REP. No. 101-116 at 22 (1989).

414. Id. at 182 (citing 135 CONG. Rec. SI 0768 (daily ed. Sept. 7, 1989) (statement of Sen.

Kennedy)).

415. See id at 182-83 (citing 29 C.F.R. § 1630.2(hXl) (EEOC) (1999)).

416. See id ai 1^3.

4 1 7. See id at 1 83-85 (citing the ADA, 42 U.S.C. § 1 2, 1 02(2)(A) ( 1 994); H.R. REP. No. 1 1 -

485, pt. 2, atv52, reprinted in 1990 U.S.C.C.A.N. §§ 303, 304; EEOC regulations at 29 C.F.R. §
1630.2(C)).

418. Id at 184.

419. Id

420. See id (citing 29 C.F.R. § 1630.20)(ii)).



838 INDIANA LAW REVIEW [Vol. 33:783

distinction goes against common sense. The majority claims that 'as a physical
matter, nothing inherent in the virus substantially limits procreation or intimate

sexual relations.""*^' The dissent maintained that contrary to the view of the
majority "[i]t is HIV's physical effects, however, upon procreation and intimate

sexual relations that make it substantially limiting. An individual with HIV
stands a significant chance of infecting others if he engages in these activities,

and this prospect of spreading the disease is a substantial impairment.'"*^^

The dissent also came to a conclusion opposite of the majority on the issue
of whether Runnebaum has presented enough evidence to support his claim of
discrimination based on his "being regarded as having such an impairment.'"*^^

The evidence cited by the dissent includes the opening of Runnebaum's AZT
packages by bank employees, the reaction of Runnebaum's fellow bank
employee upon learning of Runnebaum's infection, and the fact that the
supervisor who fired Runnebaum was informed ofRunnebaum's HIV infection
before he was actually terminated.'*^'* The dissent concluded contrary to the
majority, that when all the evidence is considered fully and all reasonable
inferences are made in Runnebaum's favor "it becomes clear that there is a
genuine factual issue about whether the bank considered Runnebaum to be
disabled.'"*^^ Moreover, the dissent concluded Runnebaum presented evidence
that the employer knew ofhis HIV status and that the reasons given for his firing
were pretextual.'*^^ The inescapable conclusion, according to the dissent, is that
Runnebaum's evidence created an issue of material fact as to whether
Runnebaum was the subject of disability discrimination because he was
"regarded as" having a disability

."^^^

If the view of the majority in Runnebaum IIv/gtg to prevail, asymptomatic
HIV-infected individuals would be precluded from claiming protection from
discrimination under the American with Disabilities Act, the Rehabilitation Act

of 1973, and other legislation using comparable terms of "disability,"

"impairment" and "substantially limiting one or more major life activities." For
all practical purposes, the opinion of Runnebaum II set down a rule that
individuals with asymptomatic HIV infection are per se not individuals with a
disability. The approach taken in Runnebaum II relied on a theory of "plain
meaning" interpretation that not only ignores the intent of Congress, the

implementation by designated agencies under lawfully promulgated regulations,

and a developed body of case law, but also employed a doubtful approach to
language itself. The history of the ADA (and the Rehabilitation Act before it)
belies any basis for claiming that the statute is to be interpreted by a "plain

meaning" approach. The Runnebaum //majority's approach simply ignores the

421. /£/. atl85.

422. Id (citing Kmiec Memorandum, supra note 385, at 405: 1, 405:7).

423. Id at 188.

424. 5gg/rf. at 187-88.

425. Id at 186.

426. Seeidat\%%.

All. Mat 188-89.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 839

issuance of regulations by an agency, the EEOC, designated in the statute by
Congress to promulgate regulations providing guiding definitions for such

statutory terms as "impairment," "major life activities," and "substantial

limitation. Ifthe Runnebaum //approach were to prevail, ADA protection ofthe
disabled in the context ofAIDS would likely be meaningless, since the physical
impairment that the Runnebaum //court apparently required would likely be so
sufficiently debilitating that the individual at that stage ofHIV disease would not
be otherwise qualified. The approach of the Runnebaum II majority clearly
undermines the objectives of Congress to exercise a "clear and comprehensive

national mandate" to eliminate discrimination against individuals with

disabilities, including those with HIV infection."*^*

VIII. The United States Supreme Court Finds Asymptomatic
HIV Infection an Impairment That Can Substantially Limit

Major Life Activities of an Individual

In Bragdon v. Abbotf^^ the United States Supreme Court attempted to

provide some guidance in determining the extent to which persons with AIDS
and HIV infection are included within the group of persons who are protected
from unjustified discrimination under the Americans with Disabilities Act.'*^^

This is the first case that the Supreme Court has heard involving AIDS or HIV-
infection.*^* While the court seems to have set out a definitive statement that

AIDS and HIV-infection, whether symptomatic or asymptomatic, constitute an
"impairment" under the terms of the ADA, the Court was less clear on the
ultimate question of "disability" protection because of its treatment of the

requirement that an impairment "substantially limits major activities of such

individuals." The Court clearly determined that AIDS and HIV infection are not
per se disabilities.

The case arose in 1994 when Sidney Abbott, who knew that she had been
infected with HIV for at least nine years but remained asymptomatic, went to the
office of her dentist Randon Bragdon for a scheduled dental appointment."*^^

After Abbott disclosed her HIV infection on a registration form, the dentist
examined her teeth and diagnosed a cavity. The dentist then informed the patient
of his policy against filling cavities of HIV-infected patients in his office.

However, the dentist offered to perform the work on Abbott's cavity at a hospital
with no added fee, although Abbott would be required to pay the hospital for any
charge for use of its facilities. Abbott refused Bragdon's offer and brought suit

428. 42 U.S.C. § 12,101(B)(1) (1994).

429. 524 U.S. 624 (1998).

430. See id.

431. See Michael Closen, The Decade ofSupreme Court Avoidance ofAIDS: Denial of

Certiorari in HIV-AIDS Cases and Its Adverse Effects on Human Rights, 61 ALA. L. Rev. 897

(1998).

432. See Bragdon, 524 U.S. at 628.



840 INDIANA LAW REVIEW [Vol. 33:783

against him under Title III of the ADA/^^ and the Maine Human Rights Act
(MHRA),'*^'* which was not addressed by the Supreme Court/^^

The federal district court, considering motions for summary judgment filed
by both parties, primarily addressed the question of applicability of Title III of
the ADA, although it found that the defendants conduct violated both the ADA
and the MHRA/^^ Under Title III ofthe ADA, a place ofpublic accommodation
may not discriminate against an individual on the basis of disability in the full
and equal enjoyment of services/^^ However, places of public accommodation

may deny full and equal services to an individual who poses a direct threat to
others/^* Accordingly, the district court found it was faced with a three step
analysis: (1) whether the dentist's office constituted a place of public

accommodation; (2) whether the plaintiffhas a disability within the terms ofthe

ADA; and (3) whether the requested treatment in the dentist's office does not
pose a direct threat to the health or safety of others.*^^ The court's discussion
focused on the latter two issues since the defendant did not dispute that his office
was a place of public accommodation; moreover, the court found that the
statutory language and interpretative regulations issued by the Department of
Justice, the agency designated in the statute, provide authority for treating the

professional office of a health care provider as a place of public

accommodation.*^° The defendant challenged plaintiff s claim with regard to her

disability status on the ground that: (1) asymptomatic HIV does not constitute
a per se disability, and (2) the plaintiff did not present evidence that her

asymptomatic HIV infection substantially limits any major life activity ."^^^

The district court recognized that the ADA does not expressly refer to AIDS
or HIV infection within the language of the statute, nor does the statute
specifically refer to any other disease or condition as a per se disability.'*'*^ In

order to determine the applicability ofthe ADA to a specific disease or condition,
the court recognized the need to apply the regulations promulgated by the agency
which had been delegated authority by Congress under a provision ofthe statute,

to determine whether an individual with HIV infection has an impairment that
substantially limits a major life activity.'*'*^ The court concluded that

433. 42U.S.C. §12,182(a).

434. Me. Rev. Stat. ANN. tit. 5, §4592(1) (West 1989).

435. See Bragdon, 524 U.S. at 629 ("The state law claims are not before us.").

436. See Abbott v. Bragdon, 912 F. Supp. 580, 596 (D. Me. 1995) (concluding that

defendant's conduct violated the ADA, 42 U.S.C. § 12,182(b)(2)(A)(i) and the Maine Human

Rights Act, ME. Rev. Stat. Ann. tit. 5, § 4592(1)), afd, 107 F.3d 934 (1st Cir. 1997), andrev'd

in part, 524 U.S. 624 (1998).

437. See id at 584-85 (construing 42 U.S.C. § 12,182(2)).

438. See id at 585 (constniing 42 U.S.C. § 12, 182(b)(3)).

439. See id

440. See id at 585 n. 1 (citing 28 C.F.R. § 36. 104 (1996)).

441. See id at 5S5.

442. See id.

443. See id.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 841

asymptomatic HIV infection does constitute an impairment within the meaning
of the ADA based on (1) the interpretative guidelines provided by the agency
designated by statute, i.e., the Department ofJustice,'^'* and (2) a significant body

of judicial opinions that had reached the conclusion that HIV infection
constitutes a physical impairment.^^ The court did not find it necessary to make
an independent inquiry into the physical effects of HIV infection during the
asymptomatic stage nor to consider the medical side effects ofasymptomatic HIV
infection treatment.

However, the district court refused to follow other courts that assumed that
since the interpretative guidelines, promulgated by the D.O.J., included HIV
among physical or mental impairments, the plaintiff was disabled for purposes
of the ADA."*"*^ Instead the court felt constrained to inquire whether the

plaintiffs asymptomatic HIV infection substantially limited one or more of her
major life activities.*^^ The district court accepted the plaintiffs claim that her
asymptomatic HIV infection substantially limited her reproductive activity
because ofpotential infection ofan offspring, and because ofdetrimental health

consequences to her from carrying out any pregnancy."*^* The court found
reproduction to be among the most fundamental ofhuman activities.'*^^ Although
the court recognized that the relevant agency guidelines were "somewhat murky"
on what was a major life activity,*^® the court concluded that the language ofthe
ADA employing the term "major life activity,'"*^' and the weight of judicial
authority that had considered the issue recognizing reproduction as constituting

a major life activity,'*^^ persuaded the court that "reproduction constitutes a major

life activity for the purposes of the ADA.'"*^^

The court specifically rejected a number ofcounter arguments. Specifically
the court rejected the argument that asymptomatic HIV infection did not
physically prevent reproduction the way that infertility would.^^* Citing the
language of the statute requiring an impairment that "substantially" limits a

444. See id. (citing 28 C.F.R. § 36. 104).

445. See id.

446. See id. at 585 n.2 (citing United States v. Morvant, 898 F. Supp. 11 57, 1161 (E.D. La.

1995); D.B. v. Bloom, 896 F. Supp. 166, 170 (D.N.J. 1995)).

447. See id.

448. See id. at 585-86.

449. See id. at 586.

450. Id. (citing 28 C.F.R. § 36.104 (1996); noting Zatarain v. WDSU-Television, Inc., 881

F. Supp. 240, 243 (E.D. La. 1995) (finding reproduction does not constitute a major life activity

for the purposes of the ADA, reasoning that one does not engage in reproduction with the same

frequency as walking, seeing, speaking, hearing, learning and working)).

451. Id (citing Doe v. Kohn Nast & Graf, P.C, 862 F. Supp. 1310, 1320 (E.D. Pa. 1994)).
452. Se^ id. (citing Erickson v. Northeastern 111. Univ., 911 F. Supp. 316, 321 (N.D. 111.

1995); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1404-05 (N.D. III. 1994); Kohn Nast &
Graf. P.C, 862 F. Supp. at 1320-21; Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990)).

453. Id

454. See id at 586-87.



842 INDIANA LAW REVIEW [Vol. 33:783

major life activity, the court concluded that "the statute does not contemplate a

complete inability of that individual to engage in a particular major life

activity.""*^^ The court found three features of human reproduction that were
limited by the fact a woman is HIV infected including: (1) further danger to a
mother's immune system resulting from pregnancy; (2) risk of infecting a child
during pregnancy, through child birth, or through breast feeding; (3) or fear of

being unable to care for the child beyond the act of conception and period of
gestation/^^

While the issue ofother major life activities was raised, including limitations
on the intimate sex life of an asymptomatic HIV-infected individual, the court
declined to consider this issue because no evidence was presented on the matter,
and because, in the court's view, the statutory language ofthe ADA requires "an
individual determination of substantial limitation.'"*^^ This view, of course,

leaves uncertain the extent ofprotection provided by the ADA to asymptomatic
HIV-infected persons, an issue that remains even after the issuance of the

Supreme Court's opinion in the case.

Concluding that Abbott was disabled for purposes of Title III of the ADA,
the district court undertook the determination of whether treating Abbott in the

dentist's office posed a direct threat to the health and safety of others."*^* The
plaintiff provided the testimony of an expert witness to establish that

implementation of Centers for Disease Control (CDC) recommended
precautionary measures eliminated any significant risk that in-office treatment

would otherwise pose."*^' The defendant maintained that significant risk was
established by: (1) the obviousness of risk in filling a cavity through the use of

a needle to inject anesthetic creates risk of transmission through percutaneous

needle stick injury, and drilling ofthe decayed cavity creates risk oftransmission

through spattering and misting of blood and blood saliva;"*^ (2) by the report of

forty-two documented cases of health care workers who have suffered
occupational transmission of HIV and a report that six percent of all infected
health care workers (as compared to four percent of the general public) do not

have identified risk factors for infection;"*^' and (3) by a line ofcase law in which

courts have held the suspension or termination of infected health care workers

does not constitute discrimination under Title III."*^^

Nevertheless, the court found the defendant's arguments unconvincing,

reasoning that they either involved speculation, or relied on case law that was

455. Id. at 587 (construing 42 U.S.C. § 12,102(2)(A) (1994)); see also id at 587 n.5.

456. See id. (citing plaintiffs deposition).

457. Id at 586 n.4.

458. See id at 587 (constniing 42 U.S.C. § 1 2, 1 82(b)(3)).

459. See id. at 587-88 (citing CDC, RECOMMENDED INFECTION—CONTROL PRACTICES FOR
Dentistry (1993)).

460. See id. at 588.

461. See id.

462. See id at 589-90.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 843

inapposite."*^^ The court concluded that the defendant did not meet the
requirements for summaryjudgment by providing evidence orjudicial authority
that supported the conclusion that treatment of the plaintiff in his office

constituted a direct threat to the health and safety of others/^ The court
concluded that the plaintiffhad refuted defendant' s speculative evidence with the

testimony of a reasonable medical official, in this case an employee ofthe CDC
whose testimony supported the claim that treatment could be rendered to Abbott

in the dentist's office without any direct threat to the health or safety ofBragdon

and others."*" The district court granted summaryjudgment for the plaintiff and
enjoined the defendant from refusing to provide treatment in his office to

individuals infected with HIV solely on the basis of their HIV positive status/^^

The United States Court ofAppeals for the First Circuit affirmed the district

court's grant of summaryjudgment on Abbott's claim ofviolation ofthe public
accommodation title ofthe ADA based on the defendant dentist's refusal to treat
her because she was HIV positive/^^ The court of appeals agreed that Abbott
was a disabled individual within the purview ofthe ADA, and that providing her
care would not have posed a direct threat to the health or safety of others."*^*

While the court ofappeals recognized the ADA was intended to send "a clear
message to those who operate places of public accommodation [that] you may
not discriminate against individuals in the full and equal enjoyment of services

on the basis ofa disability,'"*^^ the court recognized that it was constrained by the
terms of the statute to first determine those who are qualified for protection
against discrimination with reference to the criteria of "disability." The court
made it clear that the "question is first and foremost a question of statutory
construction.'"*^^

Following the traditional approach to statutory interpretation the court began

"with the words ofthe statute."*^' Citing the three-prong definition ofdisability

in the ADA, the court determined that it was required to determine whether
Abbott had a disability by finding whether she has (1) a physical or mental

impairment; (2) whether the impairment adversely affected a major life activity;

and (3) whether the impairment substantially limited her ability to engage in the

particular activity
.^^^

The court ofappeals easily found the existence ofan impairment, concluding

463. See id.

464. See id. 2X59\.

465. See id.

466. See id. at 596.

467. 5ee Abbott V. Bragdon, 107 F.3d 934, 934-37 (1st Cir. 1997), rev '^mp^r/, 524 U.S.

624(1998).

468. See id at 937.

469. Id k 938 (citing 42 U.S.C. § 12,182(2) (1994)).
470. Id. (citing Strickland v. Commissioner, Me. Dep't of Human Serv., 96 F.3d 542, 545

(1st Cir. 1996)).

471. Id (citing United States v. Gibbens, 25 F.3d 28, 33 (1st Cir. 1994)).

472. ^ee/fif. at 938-39.



844 INDIANA LAW REVIEW [Vol. 33 :783

that implementing the relevant agency regulations and the existing body of
judicial authority established that "HIV-positive status, simpliciter, whether
symptomatic or asymptomatic, comprises a physical impairment under the

ADA."*'^

The court of appeals found the issue of "major life activity" more
problematic. It was noted that the statute does not define the terms at issue, and
the existing case law was divergent on exactly what constitutes a major life
activity

.'*^* While viewing the question as "very close," the court of appeals
concluded that "[r]eproduction (and the bundle ofactivities that it encompasses)

constitutes a major life activity because of its singular importance to those who
engage in it, both in terms of its significance in their lives and in terms of its

relation to their day-to-day existence."*^^ While the court repeatedly spoke in
terms of reproductive activity, the court took the view that reproduction is a
muhifaceted activity including the "ability to engage in intimate sexual activity,

gestation, giving birth, childrearing, and nurturing familial relations."'*^^

Unlike the Fourth Circuit in Runnebaum II, which took a plain meaning
approach to statutory instruction, the First Circuit approached the process of

construing the meaning of the terms "major life activities" in the context ofthe

statute with reference to prior use of the terms by Congress, and by examining

the construction given by implementing agencies. The court approached the
process as a sophisticated multi-step process. The first step taken by the court
involved consideration of the ordinary meaning of the term:

(1) Because the term "major life activities" is not defined in the

enactment, we are obliged to construe it in accordance with its
natural (that is, ordinary) meaning. The Court has looked to
familiar dictionary definitions in similar situations. Following

that model here lends support to the classification of
reproduction as a major life activity. The plain meaning ofthe
word "major" denotes comparative importance. These
definitions strongly suggest that the touchstone for determining

an activity's inclusion under the statutory rubric is its

significance—^and reproduction, which is both the source ofall
life and one of life's most important activities, easily qualifies

473. Id at 939 (citing 28 C.F.R. § 36.104 (1996)). The court mistakenly attributed these

regulations to the EEOC; however, these regulations were promulgated by the delegated agency

under Title III., the DOJ and Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994).
474. See Abbott, 107 F.3d at 939 (comparing Pacourek v. Inland Steel Co., 916 F. Supp. 797,

804 (N.D. 111. 1996) (fmding that reproduction is a major life activity); Erickson v. Board of

Governors of State Colleges, 91 1 F. Supp. 316, 323 (N.D. 111. 1995); Cain v. Hyatt, 734 F. Supp.

671, 679 (E.D. Pa. 1990) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir.

1996) (holding that reproduction is not a major life activity); Zatarin v. WDSU-Television, Inc.,

881 F. Supp. 240, 243 (E.D. La. 1995)).

475. Mat 941.
476. Id at 939.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 845

under that criterion
477

Second, the court looked to past Congressional usage and the context within

which Congress chose the terms being construed:

(2) Congress lifted the term "major life activities" from the

Rehabilitation Act of 1 973 , which used it in defining an "individual

with handicaps." In that milieu the term was accorded "a broad
definition, one not limited to so called 'traditional handicaps.'" In

transplanting this combination of words from the soil of the

Rehabilitation Act to that of the ADA, Congress specifically
directed retention ofthe original meaning. Had Congress sought to
confine the definition of disability narrowly, it surely would have
written new, more restrictive language instead of borrowing a
descriptive phrase notable for its breadth. It would be wholly

inconsistent with this history to hold that Congress did not envision

reproduction as a major life activity
."^^^

Third, the court of appeals considered highly relevant the regulations and

interpretive guidance provided by the administrative agency that was delegated
authority by Congress to promulgate such regulations:

(3) [W]e are guided by the regulations, which define "major life
activities" to mean . . . functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. As the regulation itself clearly
indicates, this enumeration is not meant to be exclusive, and
reproduction—one of the most natural of endeavors—fits
comfortably within this sweep. Furthermore, the portion of the ,

regulations which defines physical impairments to include

physiological disorders affecting the reproductive system, militates

in favor of the same outcome. From the scope of the latter
regulation, we deduce that its drafters considered reproduction to be
a major life activity—otherwise, including reproductive disorders
among the regulation's roster of physical impairments would not
have made much sense.'^^^

Fourth, the court of appeals undertook an effort to determine the intent of

Congress when it enacted the ADA using the statutory language at issue:

(4) [0]ur mission in cases of statutory construction is to discern the

477. Id. at 939-40 (citations omitted). Among the authorities cited are two dictionaries, The

American Heritage Dictionary of the English Language, 1084 (3d ed. 1992) (defining

"major" as "greater than others in importance or rank"), and Webster's NinthNew Collegiate
Dictionary, 718 (1989) (defining "major" as "greater in dignity, rank, importance, or interest").

478. Abbott, 107 F.3d at 940 (citations omitted).

479. Id. (citing 28 C.F.R. § 36.104 (1996); 45 C.F.R. § 84.3(j)(2)(ii) (a regulation

implementing the Rehabilitation Act of 1973)).



846 INDIANA LAW REVIEW [Vol. 33:783

legislature's intent. The result that we reach here comports with
evidence in the legislative archives that Congress deemed HIV-
infected individuals to be disabled under the ADA. Moreover, the
ADA'S precursor, the Rehabilitation Act, had been construed by the
Department of Justice (DOJ) to protect persons infected with HIV
from discrimination; in enacting the ADA, Congress endorsed the
DOJ's view, noting that "a person infected with [HIV] is covered
under the first prong ofthe definition ofthe term 'disability' because

of a substantial limitation to procreation and intimate sexual

relations.'"*^

This approach to statutory language cannot be faulted for failure to give due

deference to the actual wording of the statute. Nevertheless, rather than
assuming that words have meaning in the abstract, the court ofappeals approach

considers ordinary usage as establishing the parameters for meaning, but not

sufficient for establishing the actual meaning. The context in which the use of
the words occurs is stressed, along with the interpretive guidance provided by the

agency delegated authority to promulgate supporting regulations. This approach

is certainly more likely to reach an understanding ofthe language of a statute as
intended by the drafters of the legislation, than one that assumes words have
some meaning without reference to context or usage.

The court of appeals considered and rejected a number of arguments that
would militate against recognition of reproduction as a major life activity
including: (1) the assertion that reproduction represents a lifestyle choice, and

an activity in which many choose not to engage;'**' and (2) the claim that
"reproduction" is to be distinguished from such activities as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working based on the frequency ofperformance.**^ The court ofappeals, on
the contrary, finds "[t]here is no evidence that Congress intended either

frequency or universality to operate as a restriction on the definition of 'major

life activities.'"**^ Similarly, the court noted that the assertion that reproduction

is a life style choice is without merit because voluntary restraint in no way denies
a life activity its significance. As the court notes "[s]peaking is undoubtedly a
major life activity, but there are those (say, monks who have taken vows of
silence) who choose to eschew it."***

While the court of appeals does not reach a dispositive position, it does
consider whether it is necessary for a particular individual with an impairment

to show that he or she would otherwise engage in the major life activity that is

480. Id. at 942-43 (citing H.R. Rep. No. 101-485, at 28 n.l8 (1990), reprinted in 1990

U.S.C.C.A.N. § 445).

481. Seeid.?X9A0.

482. Id

483. /(/.at 941.

484. Id



2000] AIDS FEDERAL CIVIL RIGHTS LAW 847

substantially limited by the impairment.'*^^ The court ofappeals suggests that the
individualized finding that the impairment substantially limits a major life

activity is not a particularized determination/*^ According to the court of

appeals, "[t]he need for this case-by-case analysis of disability does not

necessarily require a corresponding case-by-case inquiry into the connection

between the plaintiffand the major life activity.'"**^ The court suggests "it might

be enough for a court to consider only whether a given impairment substantially

limits a particular plaintiff without considering whether the activity is of

particular import to her."^** Since the instant case took the form of a grant of

summaryjudgment, the court ofappeals assumed arguments that Abbott needed
to establish a nexus between her impairment and a major life activity in which

she would otherwise engage/*^ The court of appeals concluded that the record
sufficiently established that Abbott's HIV infection materially affected her
decision not to engage in reproductive activity/^

Finally, the court rejected the argument that Abbott faced a relatively small

chance of infecting any child she bore because of anti-viral therapy.'*^'

According to the defendant, an HIV-infected mother faced a twenty-five percent

risk of transmitting HIV to her child if she were not treated with an anti-viral
therapy. However, with anti-viral therapy employing AZT, the risk of
transmission can be reduced to as low as eight percent/^^ The court, however,
rejected the argument that the reduction of risk oftransmission meant that HIV-
infection provided no impediment to reproductive activity. Instead the court

concluded that an eight percent risk ofpassing HIV to an offspring continued to
provide a substantial barrier to reproductive activity by HIV-infected mothers/^^

The conclusion that Abbott's HIV positive status constituted a physical
impairment that substantially interfered with her major life activity of

reproduction resulted in a finding that she was disabled within the meaning ofthe

ADA,*^^ the court of appeals then turned its attention to the question ofwhether

Abbott posed a "direct threat" if she were to be treated in a dentist's office/^^

The answer to this question, according to the court, must be based on current
medical knowledge or the best available medical evidence.^^ The court found
the district court's reliance on expert testimony insufficient as the basis for its

determination that Abbott's HIV infection did not pose a direct threat to others

485. See id.

486. See id.

487. Id

488. Id

489. See id dX9AUA2.

490. See id.

491. See id. at 942.

492. See Sid.

493. See id.

494. See id. at 948.

495. Id at 943.

496. See id at 944 (citing 28 C.F.R. § 36.208(c) (1996)),



848 INDIANA LAW REVIEW [Vol. 33:783

if she were to receive dental treatment in Bragdon's office/^^ Instead, the court

found the CDC recommendation for "universal precautions" and the
recommendations ofthe American Dental Association for safe dental procedures

provided a sufficient basis for determining that Abbott could be treated in the

dentist's office without providing a direct threat to the health or safety of

others/^* The court indicated a sensitivity to the safety concerns of health care
workers like Dr. Bragdon/'^ suggesting a need for courts to continue to carefully

examine the evidence with regard to the danger posed by a contagious or
infectious disease such as HIV. The court concluded "[w]e also recognize that
cases of this kind are necessarily fact-sensitive; had the patient required more
invasive treatment or had the dentist proffered stronger evidence ofdirect threat,

the result may well have differed."^^** The court came to the principled position
that discrimination cannot be justified on the mere existence of HIV infection;
instead, disparate treatment of those infected with HIV must be based on
scientific and medical evidence that establishes that the HIV-infected person

poses a direct threat to the health or safety of others under Title III of the ADA
(and presumably may not be discriminated against in employment if otherwise
qualified under Title I of the ADA).^^*

In Bragdon v. Abbott, the United States Supreme Court in a 5-4 decision
affirmed the court of appeals finding that a person with asymptomatic HIV
infection is a disabled person within the purview of the ADA, but by an
effectively unanimous agreement the Court vacated and remanded thejudgment

ofthe issue ofwhether Abbott's HIV-infection posed a direct threat to the health

and safety of others in the context of routine treatment in a dentist's office.^^^

Writing for the majority. Justice Kennedy applied a three-step process to
determine whether Abbott's infection constituted a disability under the ADA:
(1) whether asymptomatic HIV infection constitutes a physical impairment; (2)
whether reproduction and child bearing constitute major life activities; and (3)
whether asymptomatic HIV infection substantially limits the activities of
reproduction and child bearing.^^^

Eschewing a plain language analysis, in an effort to determine the facial

meaning of the ADA, the Court's approach to statutory construction placed
heavy reliance on the interpretation's given by the DOJ, and by the prior
interpretation of previously enacted statutes to which Congress referred in

enacting the ADA, most significantly the Rehabilitation Act of 1973.^^ The

497. See id. at 945.

498. Id. at 945-46 (citing CDC, supra note 459; AMERICAN Dental Association, Policy

ON AIDS, HIV Infection and the Practice of Dentistry ( 1 99 1 )).
499. See id. at 949.

500. Id

501. See id.

502. See Bragdon v. Abbott, 524 U.S. 624 (1998).

503. See id at 631 (applying 42 U.S.C. § 12,102(2)(A) (1994)).

504. See id. (citing the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B) (1994) and the Fair

Housing Amendments Act of 1988, 42 U.S.C. § 3602(h)(1) (1989)).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 849

majority noted the fact that the actual language ofthe ADA was drawn from the
Rehabilitation Act. According to the Court, this gave rise to an implication that

the terms were to be construed in accordance with the pre-existing

interpretations.^^^ Moreover, the majority noted the explicit direction of

Congress to courts that, except as otherwise provided in the Americans with

Disabilities Act, the statute is not to "be construed to apply a lesser standard than

the standards applied under title V of the Rehabilitation Act of 1973 or the
regulations issued by Federal agencies pursuant to such title."^^

The majority determined that the first regulations addressing the question of
what constitutes a "physical impairment" were issued in 1977 by the Department

of Health, Education and Welfare (HEW).^^^ HEW was the designated agency
responsible for coordinating the implementation and enforcement ofsection 504

ofthe Rehabilitation Act.^°^ The HEW regulations defined "physical or mental
impairment" to include "any physiological disorder . . . affecting one or more of
the following body systems [including] . . . hemic [blood] and lymphatic

"^^

The majority noted that FffiW did not provide a list of specific disorders
constituting a physical or mental impairment because ofconcern that any specific

enumeration of disease conditions might not be comprehensive.^'^ The Court
also noted that HIV could not be included in a list of specific disorders
constituting physical impairments under section 504 since the causal agent of

AIDS was not discovered until 1983.^" In 1980, responsibility for
implementation and enforcement of section 504 was transferred to the DOJ.^^^
The agency "adopted verbatim the HEW definition of physical impairment" in
its regulations that remain in force today

.^^^

Unlike the district court or the First Circuit Court ofAppeals in their earlier

consideration of the case, the majority undertook an extensive analysis of the

medical and scientific understanding of HIV infection as part of its analysis to
determine whether HIV infection constitutes a physical impairment under the
ADA. The majority adopted the view that HIV infection is not a series of
discrete conditions, but it is a disease following a set course of development.^^"*

The Court noted that at the initial or primary stage ofHIV infection, the so-called
"acute" stage, the virus concentrates in the blood and immediately attacks the

505. See id. (citing FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 434-38 (1986);

Commissioner v. Estate of Noel, 380 U.S. 678, 681-82 (1965); ICC v. Parker, 326 U.S. 60, 65

(1945)).

506. Id. at 631-32 (quoting 42 U.S.C. § 12,201(a)).

507. Id at 632.

508. See id (citing Exec. Order No. 1 1914, 3 C.F.R. § 117 (1980)).

509. M (quoting 45 C.F.R. §84.3(j)(2)(i)( 1997)).
510. See id. at 633 (citing 42 Fed. Reg. 22,685, reprinted in 45 C.F.R. § at 84, App. A., p.

334). V

511. See id.

512. See id (citing Exec. Order No. 12250, 3 C.F.R. § 298 (1981)).

513. Id (citing 28 C.F.R. § 41.31(b)(1) (1997)).

514. See id. ("The diseases follows a predictable and, as oftoday, an unattenable course.").



850 INDIANA LAW REVIEW [Vol. 33:783

person's immune system.^'^ Primary HIV infection produces a significant
decline in white blood cells or CD4+ cells.^^^ The Court emphasized that HIV
infection does not involve a latency or incubation period. With infection, the
individual often experiences "[m]ononucleosis-like symptoms, often . . .
accompanied by fever, headache, enlargement of the lymph nodes
(lymphodenopathy), muscle pain (myalgia), rash, lethargy, gastrointestinal

disorders, and neurological disorders."^ '^ These symptoms abate in two to three
weeks.^** HIV antibodies can be detected in the blood stream within three weeks,
and the virus can be detected in the blood stream within ten weeks.^*^

When the initial symptoms subside, the person is diagnosed as being in the
"asymptomatic" phase. The majority made clear, however, its opinion that there
are significant effects of HIV infection that are manifest in the infected
individual.^^° The Court was emphatic in its understanding of the persistent
physiological effects of HIV infection. According to the Court "[a]fter the
symptoms associated with the initial state subside, the disease enters what is
referred to sometimes as its asymptomatic phase. The term is a misnomer, in
some respects, for clinical features persist throughout, including
lymphadenopathy, dermatological disorders, oral lesions, and bacterial

infections.""' The Court notes that a person passing through the so-called
asymptomatic phase may appear to have reduced observable physical
manifestations ofinfection as a result ofincreased viral migration throughout the

circulatory system and an increased viral concentration in the lymph nodes with
corresponding decrease CD4+ count.^^^

The Court notes that a person is diagnosed with AIDS when the CD4+ count
drops below 200 cells/mm3 of blood or when CD4+ cells comprises less than
fourteen percent of the body's total lymphocytes."^ It is at this stage that the
HIV-infected person is likely to contract various opportunistic infections and

diseases such as Pneumocystis carinii pneumonic, Karposi's sarcoma, and non-

Hodgkin's lymphoma."*

515. Id.

516. 5ee /£/. at 634-35.

517. M at 635 (citations omitted).
518. See id.

519. See id.

520. See id

521. Id

522. See id. at 636.

523. See id. (citing HHS/CDC, 1993 Revised Classification System for HIV Infection and

ExpandedSurveillance Case DefinitionforAIDSAmongAdolescents andAdults^ 4 1 MMWR, Rep.
No.RR-17(Dec. 18, 1972); OSMOND, AIDS KNOWLEDGE BASE 1.1-2 (P. Cohen etal.eds., 2d cd.

1994); Saag, supra note 1 1, at 207; Ward et al.. Current Trends in the Epidemiology ofHIV/AIDS

in The Medical Management of AIDS 3 (Merle A. Sande & Paul A. Volberding eds., 5th ed.
1997)).

524. See id. (citing P. Cohen & P. Volberding, Clinical Spectrum ofHIVDisease, in AIDS
Knowledge Base 4.1-7 (1994); Saag, supra note 1 1, at 207-09.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 85

1

On the basis of the statutory criteria for an ADA impairment, the majority
concluded asymptomatic HIV infection qualifies as a statutory impairment.
According to the majority, "[i]n light of the immediacy with which the virus

begins to damage the infected person's white blood cells and the severity of the
disease, we hold it is an impairment from the moment of its infection."^^^ The
majority reasoned that HIV infection is a disability under the ADA because HIV
infection results in "immediate abnormalities" in the composition of an

individual's blood and significantly depreciates a person's white cell count and

dramatically affects the persons lymph nodes.^^^ Further, the majority

determined that HIV infection must be considered a physiological disorder
because of its "constant and detrimental effect on the infected person's hemic

[blood] and lymphatic systems.""^ The majority's holding results in a finding

that HIV infection, whether asymptomatic or symptomatic, is a per se impairment
within the terms ofthe ADA.

Of course, a finding of a per se impairment does not necessarily lead to the
conclusion that a person with asymptomatic HIV infection is disabled. A
showing must be made that the impairment substantially limits a major life
activity of the infected individual.^^* It is important to note that although the

Court undertakes an analysis of whether reproduction and child bearing

constitute major life activities, the majority makes clear that there are likely a
wide range of other significant major life activities whose exercise is
compromised by HIV infection. The Court nevertheless limited its discussion to
those activities that were in the record of the case before the Court. The Court
stated unequivocally:

Given the pervasive, and invariably fatal, course ofthe disease, its effect

on major life activities of many sorts might have been relevant to our
inquiry. Respondent and a number of amici make arguments about
HIV's profound impact on almost ever phase of the infected person's
life. In light ofthese submissions, it may seem legalistic to circumscribe
our discussion to the activity ofreproduction. We have little doubt that
had different parties brought the suit they would have maintained that an

HIV infection imposes substantial limitations on other major life
activities.^^'

This observation becomes important if subsequent litigation results in judicial
authority requiring an individualized determination of whether the impairment

of HIV infection results in a substantial limitation on the litigant's ability to
engage in the activity of procreation. Gay men, menopausal women, men who
have had a vasectomy, women who have had a hysterectomy, persons who are
otherwise sterile, or children may be all faced with the need to identify other

525. M at 637.
526. Id.

527. Id.

528. See id

529. Id. (citing brief of respondents and amici).



852 INDIANA LAW REVIEW [Vol. 33:783

major life activity in order to establish that they are disabled within the terms of

the ADA.
In determining whether reproduction constitutes a major life activity, the

majority cited the Court of Appeals' discussion of the term "major"^^° and

concluded that human reproduction, and the closely related activities of child
rearing, constitute major life activities in those who undertake them because
"[r]eproduction and the sexual dynamics surrounding it are central to the life

process itself.""* The majority found nothing in the statute to support the
petitioner's argument that Congress intended the ADA only to cover aspects of
a person's life which have "a public, economic, or daily character."^^^ Instead,
the Court found that the regulations promulgated to implement the ADA and its
predecessor suggest the contrary."^

Similarly, the Court found no merit to the claim that HIV infection does not
substantially impede a woman from engaging in reproductive activity. The Court
cited a number of aspects ofHIV infection that significantly interfered with an
HIV-infected individual's ability to engage in reproductive activity including:

( 1

)

a significant risk ofinfecting a sexual partner (sexual transmission ofHIV);"^

(2) a significant risk of infecting a child during gestation or childbirth (perinatal

transmission);^^^ (3) added costs of long term health care for the child that must

be examined and perhaps treated for HIV infection;"^ and (4) possible violation
of state statutes forbidding persons with HIV infection from having sex with
others, regardless of consent."^

The Court rejected the assertion that an HIV-infected woman could reduce
the likelihood of giving birth to an infected infant from twenty-five percent to

eight percent by the use of anti-retroviral therapy, therefore reducing any

limitation on their reproductive activity resulting from their HIV infection. The

530. Id. at 638 (citing Abbott v. Bragdon, 107 F.3d 934, 939, 940 (1997)).

531. Id.

532. Id.

533. See id at 638-39.

534. See id. at 639-40 (citing Osmond & Padian, Sexual Transmission of HIV, in AIDS
Knowledge Base 1.9-8, 2nd tbl. 2 (P. Cohen et al. eds., 2d ed. 1994) (20% of male partners of

women with HIV becomes HIV-positive themselves); Haverkos & Battjes, Femaie-to-Male
Transmission ofHIV, 268 JAMA 1855-56, tbl. (1992) (25% risk of female to male transmission)).

535. See id. at 640 (citing Strapans & Feinberg, MEDICAL MANAGEMENT OF AIDS 32
(studio reps 13% to 45% risk of infection, with average of approximately 25%); Connor et al.,
supra note 364, at 1 173-76 (placing risk at 25.5%); Report ofa Consumer Workshop, Maternal

Factors Involved in Mother-to-Child Transmission ofHIV-I, 5 J. ACQUIRED IMMUNE DEFICIENCY

Syndrome, 1019-20 (1992) (collecting 13 studies placing risk between 14% and 40% with most

Studies falling within the 25% to 30%)).
536. See id. at 641.

537. See id (citing lowA CODE § 139.1 (1997); Md. CODE ANN., Health-Gen. I § 18-

601. 1(2) (1994); Mont.CodeAnn. §§ 50-18-1 12 (1997); N.D. Cent. Code § 12.1-20-17(1997);

Utah Code Ann. § 26-6-3.5(3) (Supp. 1997); § 26-6-5 (1995); WASH. REV. CODE §
9A.36.011(l)(b)(Supp. 1998)).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 853

Court found that even an eight percent possibility of transmitting HIV to an
offspring is to be regarded as significant.^^* It is clear that the statistical other

concerns identified by the Court were a significant basis for its decision;

however, from the respondent's revelation that her HIV infection controlled her
decision not to have a child was "unchallenged.""'

Just as the Court found support for its view ofthe meaning of"impairment"
in the legislative history, implementing regulations of the ADA, and
Rehabilitation Act of 1973, the Court found similar support for its view that the

disability provision of the ADA was meant to include individuals with
asymptomatic HIV infection.^"*" The Court first looked to interpretations of the
Rehabilitation Act of 1973 that extended coverage to those with HIV infection.
The Court began by citing the 1988 Memorandum opinion issued by the Office
of Legal Counsel of the DOJ concluding that the Rehabilitation Act "protects
symptomatic and asymptomatic HIV-infected individuals against discrimination

in any covered program."^"*' The Court also noted that every agency that
addressed the problem before enactment ofthe ADA reached the conclusion that
those with HIV infection were handicapped^'*^ and that existing agencies
addressing the issue since enactment ofthe ADA have adhered to the conclusion
that HIV infection constitutes a handicap or disability.^*^ Further the Court
observed that every court that had addressed the issue of coverage under the

Rehabilitation Act before the ADA was enacted in 1990 concluded that
asymptomatic HIV infection satisfied the Rehabilitation Act's definition of
handicap.^^

538. See id

539. Id. (citations omitted).

540. Id at 642.

541. Id {quoting Application of Section 504 of the Rehabilitation Act to HIV-infected

Individuals, 12 Op. Off. Legal Counsel 264, 264-65 (Sept. 27, 1998)).

542. See id. at 643 (citing FEDERAL CONTRACT COMPLIANCE MANUAL App. 6D, 8 FEP

Manual 405.352 (Dec. 23, 1998); In re David Ritter, No. 03890089, 1989 WL 609697, *10
(EEOCDec.8, 1989)).

543. See id. (citations omitted).

544. See id at 644 (citing Doe v. Garrett, 903 F.2d 1455, 1457 (1 1th Cir. 1990); Baxter v.

Belleville, 720 F. Supp. 671, 679 (E.D. Pa. 1990) (Pennsylvania Human Relations Act)); Ray v.

Sch. Dist. of DeSoto County, 666 F. Supp. 1524, 1536 (M.D. Fla, 1987); Thomas v. Atascadero

Unified Sch. Dist., 662 F. Supp. 376, 381 (CD. Cal. 1987); District 27 Community Sch. Bd. v.

Board ofEd. ofNew York, 502 N.Y.S.2d 325, 335-37 (Sup. Ct. Queens Cty. 1986); see also cases
finding HIV to be a handicap without distinguishing between symptomatic and asymptomatic:

Robertson v. Granite City Community Unit School District No. 9, 684 F. Supp. 1002, 1006-07

(S.D. 111. 1998); Association ofRelations andFriends ofAIDSPatients v. Regulations andPermits

Administration, 740 F. Supp. 95, 103 (P.R. 1990) (Fair Housing Amendments Act); Martinez ex

rel. Martinez v. School Board ofHillsborough City, 86 1 F.2d 1 502-06 ( 1 1 th Cir. 1 988); Chalk v.

United States District Court, 840 F.2d 701, 701-06 (9th Cir. 1988) Doe v. Dalton Elementary

School District No. 148, 694 F. Supp. 440, 445-45 (N.D. 111. 1988); Local 1813, AFOEv. United

States Department ofState, 662 F. Supp. 50, 54 (D.C. 1987).



854 INDIANA LAW REVIEW [Vol. 33:783

The Court adopts a traditional maxim of statutory interpretation ignored by
the Fourth Circuit in Runnebaum II, and not adequately stated by the First Circuit
in its opinion in Abbott v. Bragdon, that needs to be emphasized in face of

demands for plain language analysis which remains sensitive to legislative
history. The Court clearly states "[w]hen administrative and judicial
interpretations have settled the meaning of an existing statutory provision,

repetition ofthe same language in a new statute indicates, as a general matter, the
intent to incorporate its administrative and judicial interpretations as well."^"*^

The majority maintains that ifCongress had done nothing more than integrate the
existing language ofthe Rehabilitation Act into the ADA, given the interpretation
that language had been given, it would be evidence that Congress intended the
ADA'S disability provision to include asymptomatic HIV infection.^"^^ The
majority points out that Congress was well aware ofthe 1 988 DOJ Memorandum
opinion and, moreover, specifically endorsed the analysis and conclusions ofthe

DOJ Memorandum in the House and Senate reports accompanying the ADA.^"*^
The Court also found significant that Congress had incorporated the same
definition into its earlier enactment of the Fair Housing Act Amendments of
1988.^"^^ Moreover, it is noteworthy that the regulations promulgated in 1989 by

the Department ofHousing and Urban Development construed the Fair Housing

Act as providing protection for persons with HIV infection.^"*^
The Court also found persuasive the regulations promulgated by the DOJ, as

the agency directed by Congress to issue implementing regulations for Title 111,^^°

including "HIV infection (symptomatic and asymptomatic)" in the list of
disorders constituting a physical impairment.^^* Moreover, the Court noted that

the DOJ in its Title III TechnicalAssistance Manual, concludes that persons with
asymptomatic HIV infection fall within the ADA's definition of disability.^"
The Court found similar authority in the regulations and guidance from other

agencies involved in administration and enforcement ofthe ADA, including the
EEOC and the Department of Transportation.^^^

545. Abbott, 524 U.S. at 645 (citing Loriliard v. Pons, 434 U.S. 575, 580-87 (1978)).

546. See id at 644-45.

547. See id at 645 (citing H.R. Rep. 101-485, pt. 2, p. 52 (1990); H.R. REP. No. 101-485, p.

2 at 28 n.l8; S. Rep. No. 101-116, pp. 21-22 (1989) (ail endorsing the conclusion of the DOJ

Memorandum that HIV infection, whether symptomatic or asymptomatic, qualified as a handicap

under the Rehabilitation Act of 1973)).

548. See id (citing 42 U.S.C. § 3602(h)(1) (1994)).

549. See id (citing 54 Fed. Reg. 3232, 3245 (1989) (codified at 24 C.F.R. § 100.201 (1997)).

550. See id at 646 (citing 42 U.S.C. § 12, 186(B) & (O) (1994 & Supp. Ill 1997)).
551. Id (citing 28 C.F.R. § 36.104(l)(ii)).

552. See id. (citing U.S. DEP'T OF JUSTICE, CIVIL RIGHTS DIVISION, THE AMERICANS WITH

Disabilities Act; Title III Technical Assistance Manual 9 (Nov. 1992)).
553. Seeid at 647 (citing 42 U.S.C. § 12,1 16 (1994) (authorizing EEOC to issue regulations

under Title I); 42 U.S.C. § 12,134(2) (authorizing DOJ to issue regulations implementing public

service provision of Title II, subtitle A); 42 U.S.C. §§ 12,149, 12,164, 12,186, 12,206(C) (1994

& Supp. Ill 1997) (authorizing Sec. of Trans. To issue regulations relevant provisions of Title II



2000] AIDS FEDERAL CIVIL RIGHTS LAW 855

Although Abbott was found to have a disability under the ADA, the Court
recognized that she could be refused treatment in a dentist's office if her HIV
infection "pose[d] a direct threat to the health and safety ofothers" that could not

be "eliminated by a modification of policies, practices, or procedures or by the

provision of auxiliary aids or services [in the dentist's office].""* The Court
assessed the possible risks from the point of view of providers of service,

stressing that "the risk assessment must be based on medical or other objective

evidence.""^ The Court recognized that a provider of services "belief that a
significant risk existed, even if maintained in good faith, would not relieve him
from liability.""'

While the Court recognized that the views ofpublic health authorities, such

as the United States Public Health Services, CDC, and the National Institute of
Health deserve special weight and authority, the Court maintained that the views

ofthese agencies are not conclusive."' The majority concluded that the court of
appeals was right to have rejected the trial court's total reliance on the affidavit
of a CDC official,^^* but the majority also faulted the court of appeals for its
reliance on the 1993 CDC Dentistry Guidelines and the 1991 American Dental
Association Policy on HIV."^ The Court first faulted the Fourth Circuit for not
recognizing the limited importance of the CDC guidelines, for in the Court's
view "the Guidelines do not necessarily contain implicit assumptions conclusive
ofthe point to be decided. The Guidelines set out CDC's recommendations that
the universal precautions are the best way to combat the risk of HIV
transmission. They do not assess the level of risk."^'° Similarly, the majority
faulted the Fourth Circuit on its reliance on the Dental Association policy

statement. The majority concluded it is not clear whether the Dental Association
policy was based on an assessment ofthe dentist's ethical and professional duties
rather than a scientific assessment of the risk faced by the dentist, which is the

basis of the ADA's statutory concems.^^' According to the Court "[e]fforts to
clarify dentists' ethical obligations and to encourage dentists to treat patients

with HIV infection with compassion may be commendable, but the question
under the statute is one of statistical likelihood, not professional

responsibility."^'^ Neither did the Court find the deposition the petitioner placed

and III)). These agencies concluded HIV infection is an ADA physical impairment under the ADA.
See 28 C.F.R. § 35.104 (l)(iii) (1997); 49 C.F.R. § 37.3, 38.3 (1977); 56 Fed. Reg. 13,858 (1991).

554. Abbott, 524 U.S. at 648-49 (applying 42 U.S.C. § 12,182(B)(3) (1994). Cf. 42 U.S.C.

§§12,111(3), 12,1 13(B)).

555. Id at 649 (citing School Bd. Of Nassau City v. Arline, 480 U.S. 273, 288 (1987); 28

C.F.R. § 36.208(e) (1997)).

556. Id.

557. See id at 650 (citing Arline, 480 U.S. at 288; 28 C.F.R. p. 36, App. B, p.626 (1977)).

558. Se^ id (citing Abbott v. Bragdon, 107 F.3d 934, 945 n.7 (1997)).

559. See id at 65 1 (citing Abbott, 1 07 F.3d at 945-46).

560. /c?. at 651-52.

561. See id at 652.

562. Id



856 INDIANA LAW REVIEW [Vol. 33:783

into the trial court record determinative evidence on the extent ofthe danger of

airborne transmission ofHIV in the setting ofdental treatment using high-speed
drills, nor were the reports of dental workers who had possible occupational
transmission ofHIV sufficient to establish the kind of risk showing required by
the statute.^" The Court found itselfconstrained on the question of risk by what
it felt was an inadequate record. The Court pointed out that "we have not had
briefs and arguments directed to the entire record."^^ The Court remanded the
question of risk to the Court ofAppeals to determine whether the petitioner had

presented sufficient evidence to raise a triable issue of fact on the question of
risk.^^'

Justice Stevens,joined by Justice Breyer, concurred with the majority stating
that there was no doubt that the asymptomatic HIV infection ofAbbott placed her
within the category of ADA disability.^^ However, Justice Stevens expressed
a preference for outright affirmance, without remand on the dire ofthreat because
the respondent had failed to raise a triable issue offact on the direct threat issue,

and because the court of appeals' decision was based on the record.^^^
Justice Ginsberg filed a concurring opinion agreeing that the case should be

remanded on the direct threat issue because it is wise to "[err] ifat all, on the side
of caution."^^* However, Justice Ginsberg indicated that she would have found
Abbott disabled both under the actual disability prong ofthe ADA definition, and
the "regarded as" standard.^^^ Justice Ginsberg's opinion also suggested other

major life activities might be cited by HIV infected individuals.^^^ Justice
Ginsberg observed "[t]he disease inevitably pervades life's choices: education,

employment, family and financial undertakings. It affects the needs for and, as

this case shows, the ability to obtain health care because ofthe reaction ofothers

to the impairment."^^'

Justice O'Connor, concurring in the judgment and dissenting, in part,

maintained that Abbott did not establish that her HIV infection substantially
limited a major life activity.^^^ Justice O'Connor found reproductive activity to
be different in kind from the representative life activities set out in the applicable

regulation that includes "caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working."^^^ Moreover,

Justice O'Connor concluded that the First Circuit failed to adequately determine

563. See id. at 652-53.

564. Id. at 654.

565. See id. at 655.

566. See id. (Stevens, J., concurring).

567. See id.

568. Id. at 656 (Ginsberg, J., concurring).

569. Id

570. See id.

571. Id

572. See id. at 664 (0*Connor, J., concurring in part and dissenting in part).

573. Id at 665.



2000] AIDS FEDERAL CIVIL RIGHTS LAW 857

whether Abbott's HIV infection posed a direct threat.^^^
Chief Justice Rehnquist filed a two part dissent, joined in the first part by

Justices Scalia and Thomas, andjoined in the second part by Justice O'Connor.^'^
In the first part of his dissent the Chief Justice stressed the need for an

"individualized" inquiry to determine whether an individual has a disability

under the ADA since the disability determination must be made "with respect to
an individual" and because the "major life activities" must be those "of such
individual."'''

The Chief Justice accepted for the sake of analysis that Abbott's

asymptomatic HIV infection constituted an ADA impairment since it was not
disputed by Bragdon.'^' However, on the issue of whether reproduction

constituted a major life activity, the ChiefJustice maintained the fact that being

"important in a person's life" is not dispositive.^'* Rather, the Chief Justice

maintained that the major life activities recognized in the relevant agency

regulations required a certain regularity engagement."^ According to the Chief

Justice "[t]he common thread is rather that the activities are repetitively
performed and essential in the day-to-day existence of a normally functioning

individual. They are thus quite different from the series of activities leading to
thebirthofachild.'"*^

The Chief Justice extended his argument that, even assuming reproduction
was a major life activity, asymptomatic HIV infection would not substantially
limit engagement in reproduction.'*^ According to the ChiefJustice "[t]he record

before us leaves no doubt that those so infected are still entirely able to engage

in sexual intercourse, give birth to a child ifthey become pregnant, and perform
the manual tasks necessary to rear a child to maturity."'*^ From the Chief
Justice's point ofview, asymptomatic HIV infection may give an infected person
reasons for not engaging in reproduction, but HIV infection does not "physically"
substantially lessen the ability of a person to engage in reproduction.'*^

According to the Chief Justice, "[w]hile individuals infected with HIV may
choose not to engage in these activities, there is no support in language, logic, or

our case law for the proposition that such voluntary choices constitute a 'limit'

on one's own life activities."'*"* Nor did the ChiefJustice find the invocation of
the statutory terms "substantially lessen" significant, since in his view there is no

evidence that because ofHIV infection Abbott has any less ability than others to

574. See id.

575. See id. at 657 (Rehnquist, C.J., dissenting).

576. Id (applying 42 U.S.C. §§ 12,102(2) and 12,102(3)(A) (1994)).

577. See id. at 658.

578. Id at 660.

579. See id

580. Id V

581. 5ee/^. at660-6I.

582. Id

583. Id

584. /^. at 661.



858 INDIANA LAW REVIEW [Vol. 33:783

engage in reproductive activity "as a matter of mere physical ability."^*^ The
Chief Justice also did not look kindly on the assertion that Abbott's HIV
infection would not permit her to complete the process of child rearing because
of his reading ofthe word "limits" (which is limited to the present tense) and his
view that child rearing necessarily looked to the future.^^^

The ChiefJustice also found it significant that there was no evidence in the
record that, prior to becoming infected with HIV, Abbott's major life activities

included reproduction. According to the ChiefJustice *'[t]here is absolutely no

evidence, that absent the HIV, respondent would have had or was even
considering having children."^*' The Chief Justice concluded that given this
evidence, Abbott does not meet the ADA's definition of "disability" because it
requires that the major life activity at issue be "of such individual."^** It should

be recalled that even the Runnebaum //majority suggested it was not necessary
to determine that the particular individual would otherwise engage in the major
life activity which the ADA impairment substantially limited.^*' Also, it is
important to note that the majority in Bragdon specifically concluded
"[t]estimony from the respondent that her HIV infection controlled her decision
not to have a child is unchallenged."^^ The spectre thus remains that it may be
necessary for an asymptomatic HIV infected individual claiming disability
protection under the ADA to establish that there is a particular recognized major
life activity in which they would otherwise engage, but for his or her HIV
infection.

Part II of the dissent established agreement with the majority's decision to

remand the case on the issue of "direct threat" but expressed disagreement with
the majority's grant ofspecial weight and authority to the views ofpublic health

authorities such as the United States Public Health Service, CDC, and the
National Institute of Health.^^' According to the Chief Justice "[i]n litigation

between private parties originating in the federal courts, I am aware of no
provision of law or judicial practice that would require or permit courts to give
some scientific views more credence than others simply because they have been
endorsed by a politically appointed public health authority (such as the Surgeon

General)."^^^ In the Chief Justice's view, expert opinions, including that of

officials ofthe public health authority, "must stand on their own."^^^ The Chief

585. Id.

586. Id. (citing 42 U.S.C. § 12,102(2)(h) (1994) ("limits" (present tense) a major life

activity)).

587. /flf. at659.

588. Id

589. See Runnebaum v. NationsBank of Md., 1 23 F.3d 1 56, 1 70 (4th Cir. 1 997) (en banc).

590. Abbott, 524 U.S. at 641 (citing Abbott v. Bragdon, 912 F. Supp. 580, 587 (D. Me.

1 995); Abbott v. Bragdon, 1 07 F.3d 934, 942 ( 1 997) ("Testimony from the respondent that herHIV

infection controlled her decision not to have a child is unchallenged.")).

591. Id at 661-63 (Rehnquist, C.J., dissenting).

592. /^. at 663.

593. Id



2000] AIDS FEDERAL CIVIL RIGHTS LAW 859

Justice concluded that the petitioner presented more than enough evidence to
avoid summary judgment on the direct threat question.

On remand in an opinion issued on December 20, 1998, the First Circuit
Court of Appeals reaffirmed its conclusion that Bragdon violated the ADA by
refusing to treat an HIV-positive dental patient in his office.^^* The three-judge
panel concluded that Bragdon produced no legitimate medical or scientific

evidence to show that providing routine, in-office dental care to an HIV-infected
patient would subject him or others to any significant direct threat ofcontracting
HIV infection.^'^ The court maintained that Bragdon's claims regarding the risks
of HIV transmission from patient to dentist, where there was compliance with
CDC "universal precautions," were "too speculative" and "too tangential" to
create a genuine issue ofmaterial fact.^^ The court ofappeals panel viewed the
1993 CDC guidelines as "competent evidence" by a recognized public health
authority that the provision of routine dental care of the type at issue in the

litigation before the court could be provided without threat of infection to the

dentist or assisting health care worker.^^' Moreover, the court noted that the brief

submitted by the dental association confirmed that the organization's 1 99 1 policy

statement on the treatments of HIV-positive patients originated with the
association's committee for scientific affairs, not its committee on ethics.^^*

Nevertheless, the court issued a caveat recognizing that future medical or

scientific evidence might provide a basis for a different conclusion on the issue

of direct threat.^^ According to the court "[t]he state of scientific knowledge

concerning this disease is evolving, and we caution future courts to consider
carefully whether future litigants have been able, through scientific advances,

more complete research, or special circumstances, to present facts and arguments
warranting a different decision."^^ The consequence of this ruling is a final
affirmation of the grant of summary judgment by the district court in 199^5
enjoining Bragdon from refusing to provide in-office care to patients based solely

on their HIV infection.

Conclusion: Some Remaining Issues

The issue of "direct threat" under Title III^' and the issue of "otherwise
qualified under Title I"^^ are fact specific and provide the basis for continuing

litigation under the ADA, even with the effective ruling of the United States
Supreme Court that HIV-infection is an ADA per se impairment.

594. ^ee Abbott V. Bragdon, 163F.3d87(lstCir. 1998), cert, flfemet/, 526 U.S. 1131(1999).

595. See id. at 90.

596. Id

597. Id.

598. See id.

599. See id.

600. Id

601. 42 U.S.C. § I2,182(b)(3) (1994).

602. M§ 12,112(8).



860 INDIANA LAW REVIEW [Vol. 33 :783

The Court shed little light on what actually constitutes a direct threat to the
health or safety of others. While the Court indicated that significant weight

should be given to the policies and statements of the public health authorities

such as the United States Public Health Services, the CDC and the National
Institute of Health,^^ the Court provided no guidance for determining what
constitutes a significant risk to others.

The question of what constitutes a "major life activity" will also likely
continue to be litigated. Because of reference to "intimate sexual relations" in

the 1988 DOJ Memorandum,^ it is possible that a court considering the matter
would reach the conclusion that "intimate sexual relations" constitutes a major

life activity under the ADA. The similarity to the importance of "reproductive
activity" and the fact that it seems to be in the same class of, ifnot often a related
activity. One can anticipate similar arguments relating to "substantially limits"
in terms of concern with the possibility of infecting a sexual partner and the

possibility of violation of statute laws prohibiting certain sexual relations by

HIV-infected persons.

An issue may also arise as to whether an HIV-infected individual remains
disabled ifdrug therapies become available that may halt the reproduction ofthe
virus, restore CD4+ count, or even neutralize HIV. This matter gains
significance when one recalls that the majority began its discussion of HIV-
infection with the sentence "[tjhe disease follows a predictable and, as oftoday,

an unalterable course."^^ The EEOC view is that the determination ofdisability
should be made without regard to the ameliorative effects ofmedication.^^ Some
courts, however, have found that when medication improves an individual's
physical condition there is no disability.^^ The Court in Bragdon limited its
consideration to the impact of medication in reducing perinatal transmission of

HIV.

Another area that needs to be resolved is that of HIV infected health care
workers and whether they are otherwise qualified. The existing case law permits
restriction, reassignment ortermination ofHIV-infected health care workers who
are engaged in what has been characterized as exposure-prone procedures.

^°'

This body ofjudicial opinion has held that such treatment ofHIV-infected health
care workers does not constitute discrimination under Title I of the ADA^°' or

603. See Bragdon v. Abbott, 524 U.S. 624, 650 (1998).

604. DOJ Memorandum II, supra note 87.
605. Abbott, 524 U.S. at 633.

606. See EEOC COMPLIANCE MAhRJAL (CCH) § 902.5 (Mar. 1 4, 1 995).
607. See Gaddy v. Four B Corp., 953 F. Supp. 331, 337 (D. Kan. 1997).

608. See Abbott, 524 U.S. at 653-54.

609. 5ee Doe V. University ofMd. Med. Sys. Corp., 50 F.3d 1261, (4th Cir. 1995) (upholding

the dismissal ofa neurosurgery resident who tested HIV-positive); Mauro v. Bogess Med. Ctr., 886

F. Supp. 1349 (W.D. Mich. 1995) (upholding dismissal of a surgical student after report of his

HIV-infection), afTd, 137 F.3d 398 (6th Cir. 1998); Doe v. Washington Univ., 780 F. Supp. 628

(E.D. Mo. 1991) (disenroUment of HIV-positive dental student).



2000] AIDS FEDERAL CIVIL RIGHTS LAW 861

under section 504 ofthe Rehabilitation Act of 1 973^'^ because such HIV-infected

health care workers are not "otherwise qualified." Such adverse employment
decisions have been legally sanctioned even though there is authority in the

medical literature for the view that the risk of transmission from an infected

patient to a health care worker is much greater than the risk oftransmission from
an infected health care worker to a patient. The case law, however, has
distinguished the physician-patient relationship as placing a special duty on the

physician "to do no harm" to the patient, with this special duty being cited in the
opinions finding the HIV-infected physician "not otherwise qualified."^* • Such

a distinction has no basis in the statutory language ofthe ADA. While this issue
was raised by Bragdon in his arguments related to "direct threat," the Supreme
Court chose not to address the issue. It is likely that future litigation will involve

the matter ofreconciling the direct threat analysis developed under Title III with

the "otherwise qualified" analysis under Title I of the ADA and section 504 of
the Rehabilitation Act.

The Supreme Court's opinion, standing alone, does not provide assurance of
ADA protection for HIV infected persons who cannot show that they would
otherwise engage in reproductive activity, but for their HIV infection. The
elderly, post-menopausal women, homosexuals, males with vasectomies, females
with hysterectomies, other persons who are sterile, children, and those who have
chosen to be celibate might all fail to qualify under such a disability standard

unless other major life activities are recognized in which these individuals would

engage but for their HIV infection. Ofcourse, the majority opinion hints that it
is likely that in a properly argued case, the Supreme Court would take a broad
view ofmajor life activities impacted by HIV infection. Nevertheless, although
the majority in Bragdon clearly held that HIV-infection, whether symptomatic
or asymptomatic, is always an impairment under the ADA, the Court declined to
decide that a person with HIV infection always is a person with a disability.

610. 42 U.S.C § 12,1 13(b) (1994).

611. Id. § 12,182(b)(3).