American Journal of Law & Medicine

How judicial myopia is jeopardizing the protection of people with HIV/AIDS under the ADA. (Americans with Disabilities Act)

I. INTRODUCTION

The Americans with Disabilities Act of 1990(1) promised to be a "second-generation" civil rights statute, comparable in importance and scope to the Civil Rights Act of 1964.(2) The breadth of the act reflected congressional and disability activists' desire to change society in order to enable the disabled to achieve economic autonomy and social equality.(3) Historically, disabled individuals were characterized by their inability to normally function in society, either due to physical obstacles or social myths and stereotypes.(4) Up until 1990, the federal government had taken baby steps to address these issues. Indeed, most federal activity was limited to assisting disabled people in overcoming physical barriers to employment. However, the government did little to change the structure of those barriers, and most certainly did not address the widespread social prejudice against the disabled.(5) Section 504 of the Rehabilitation Act of 1973 was the first move in this direction by prohibiting entities that receive federal funds from discriminating "solely on the basis of handicap."(6)

The Congress and President Bush took a giant leap forward by enacting the ADA which prohibits discrimination against disabled persons by private employers,(7) state and local governments,(8) and private providers of public accommodations.(9) The ADA then goes one step further by requiring these entities to change their environments and make "reasonable accommodations" for disabled people.(10) By prohibiting discrimination and placing affirmative accommodation requirements on entities, the ADA reversed the historical approach of treating the disabled as needing rehabilitation and instead forced society to rehabilitate its physical structure and mental biases against the people with disabilities.(11)

Given that the ADA was not intended to solely address the ability of the disabled to work but also to function free of social prejudice,(12) the act conceived of disability in a broad way. The ADA's definition of disability encompasses impairments which not only affect the individual's ability to work but also other important life activities.(13) In fact, the ADA almost copied the definition of disability from the Rehabilitation Act specifically because courts had consistently interpreted it to include a large number of physical and mental conditions, including AIDS and HIV infection.(14) Most courts did not engage in detailed textualist parsing of the statute, and instead significantly relied on legislative history, administrative interpretations and the principle that civil rights statutes should be interpreted broadly to achieve their purpose.(15)

However, with the passage of time and the rise of "new textualism,"(16) the protection of many disabilities, including HIV/AIDS, is becoming less certain than originally intended or hoped for by the ADA architects. Significant public and judicial backlash has cast the ADA as imposing overly burdensome requirements on business and as a vehicle for many frivolous lawsuits.(17) As a result, the ADA has begun to receive a more restrictive reading by the judiciary,(18) Unfortunately, the Supreme Court has joined in this trend, as demonstrated in Sutton v. United,(19) Murphy v. UPS(20) and Albertsons, Inc. v. Kirkingburg,(21) all decided at the end of the 1999 term. In these cases, the Court held that plaintiffs' health conditions must be viewed in their mitigated state, meaning with the use of medication or medical devices, for determining whether they fall within the statutory definition of disability.(22) These decisions contradict the long-established agency and judicial interpretation of the ADA as well as much of the ADA's legislative history.(23)

The Court's Sutton decisions(24) have the potential to unsettle disability jurisprudence by now requiring plaintiffs to prove that they are disabled under the ADA in their medically treated state. Thus, treatable or controllable medical conditions formerly thought qualified for disability status may no longer qualify as ADA disabilities.(25) Conditions widely considered ADA disabilities by the ADA drafters,(26) such as diabetes and epilepsy, are now in danger of losing their ADA protections.(27) Since the history of HIV/AIDS protection is short and controversial,(28) it also faces peril in a judicial environment influenced by Sutton. As effective drags are developed to treat HIV infection and AIDS rendering many individuals asymptomatic and sometimes resulting in the virus being undetectable,(29) the protective status of HIV/AIDS could face erosion in light of Sutton.

Further, the changing social construction of HIV infection and AIDS poses another threat to continued disability protection.(30) The judicial reaction to HIV/AIDS has largely mirrored the social construction imposed on the disease.(31) At first, the popular discourse concerning HIV infection and AIDS was couched in terms of social panic and mass vulnerability.(32) As such, judicial language in early HIV cases tracked this sentiment.(33) However, with improved medical treatments, HIV is becoming considered a chronic disease and not a death sentence.(34) With this "second" construction follows the danger that the protections against discrimination of HIV/AIDS could be reduced.(35)

Part II of this Note examines how the language, legislative history, regulations and political history of the ADA show that HIV was viewed by Congress and the ADA drafters as a disability. Part III discusses the changing social constructions of HIV and how the Bragdon v. Abbott decision was influenced by this change. Part III also details the analytical framework used by the Bragdon Court to evaluate HIV as a disability and identifies issues the Court neglected that may cause future HIV/AIDS plaintiffs problems. Part IV examines the Sutton decisions, their fallout in lower courts and how these developments could threaten the ADA's protection of HIV/AIDS.

This Note concludes in Part V that the Supreme Court's Sutton decisions not only misinterpret the congressional intent of the ADA and damage its ability to protect the disabled generally, but also threaten the protection of HIV/AIDS specifically. Since remedying this situation by judicial means is unlikely, major statutory changes should be made by Congress to solidify HIV/AIDS protection.

II. THE ADA AND HIV

A. STATUTORY LANGUAGE

The ADA definition of disability is practically identical to that of the Rehabilitation Act of 1973.(36) Both define disability(37) as a (A) physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.(38) In order to ensure that courts followed the Rehabilitation Act jurisprudence construing the meaning of this definition, Congress expressly directed courts to not apply a lower standard than was applied under the Rehabilitation Act.(39)

Interestingly, the ADA does not treat disability the same as race or gender are treated in the Civil Rights Act of 1964.(40) Title VII prohibits discrimination on the basis of certain categories: race, gender, national origin, religion, without any modifiers.(41) These categories apply to everyone equally--there is no race or gender that is outside the protected class of Title VII.(42) The statute's net stretches beyond the groups Congress was thinking about protecting when it passed this law, such as Blacks, women and Jews, to also include Whites, men, and Christians.(43) The focus of a Title VII dispute is whether the action taken against the person was because of the person's embodiment of those protected characteristics.(44) However, ADA drafters rejected an early version of the ADA that would have similarly treated disability as a category and prohibited discrimination "because of a physical or mental impairment, perceived impairment or record of impairment."(45)

This rejection was explained by Feldblum as necessitated by political considerations and a calculated legal judgment that, based on Rehabilitation Act precedent, this definition was functionally equivalent to Title VII.(46) Politically, it was easier to persuade members of Congress to jump on board the ADA because it was not making radical changes in the law, but simply extending a tried-and-tree fifteen year-old statutory definition to the private sector.(47) Since the ADA was subjecting private businesses to entirely new and potentially costly accommodation requirements, it is quite understandable why disability activists, faced with an increasingly conservative political environment, favored the Rehabilitation Act definition.

Also, Feldblum explains that most ADA drafters were comfortable with the judicial opinions construing the Rehabilitation Act.(48) Most courts did not engage in extensive parsing of the definitional words, but rather treated the question of plaintiff's inclusion in the Rehabilitation Act protected class as almost a non-issue.(49) Courts instead conducted a Title VII-like inquiry and focused on whether the adverse action was taken against the plaintiff because of his or her disability.(50) Of course, there were a few outlier cases, but they were thought to be aberrations or cases with particularly bad facts.(51) Indeed, the Supreme Court's 7-2 Arline(52) opinion gave an expansive reading to the Rehabilitation Act's protected class, finding that hospitalization for an impairment was enough to render the impairment a disability and to give the plaintiff a record of a disability.(53)

In the age of "new textualism," however, the question of the plaintiff's inclusion in the ADA's conditional protected class has increasingly become a convenient vehicle for courts to dispose of ADA cases.(54) But, even though the ADA adopted the individualized definition of disability rather than the category-based definition, the findings and purposes listed in the ADA show Congress understood it was enacting a statute that protected an expansive number of people.(55) In its findings section, Congress articulated its intent to address conditions that not only impaired people physically from participating fully in economic and social life, but also conditions that engendered social fear, stereotyping, and resulted in segregation and exclusion from participation in society.(56) The statutory purposes show the breadth of Congress' vision for the ADA to be the vehicle to eliminate these problems.(57)

Congress rejected listing conditions and diseases as per se disabilities due to the difficulty of ensuring comprehensiveness and to leave open coverage for future diseases or conditions.(58) However, Congress' attempt at inclusivity has allowed courts to restrictively interpret the definition of disability, as done in Sutton,(59) to the point now where ADA jurisprudence looks much different than that of the Rehabilitation Act despite a statutory direction otherwise. This highly textual approach to the ADA is worrisome because much of the evidence that states HIV/AIDS, as well as other disabilities, were intended to receive ADA protection is outside the bare words of the statute and therefore could be ignored by courts.

B. LEGISLATIVE HISTORY

There are numerous statements within the Senate and House reports from both supporters and opponents of the ADA that show both sides understood that HIV infection and AIDS are disabilities under the ADA. Both the official House and Senate reports agreed with the Department of Justice's memoranda that "a person infected with [HIV] is covered under the first prong of the definition of the term disability because of a substantial limitation to procreation and intimate sexual relationships."(60) Both House Committees created a representative list of disorders and conditions constituting disabilities, which included HIV.(61)

Both houses of Congress also discussed the societal discrimination against HIV-positive individuals and the public health threat that discrimination posed as another reason for the ADA's enactment.(62) The House and Senate reports cite the testimony of Admiral James Watkins, the former Chairperson of the President's Commission on the Human Immunodeficiency Virus Epidemic.(63) He urged Congress to pass a "strong national policy with rapid and effective remedies" because discrimination against individuals with HIV infection was widespread and had serious repercussions for both the individual who experiences it and the Nation's efforts to control the epidemic.(64) Senator Jesse Helms (R-N.C.), one of the ADA's chief opponents, stated on the Senate floor that he strongly believed the ADA would provide protection against discrimination to asymptomatic HIV-positive people.(65)

C. AGENCY REGULATION

Congress recognized and agreed with the Departments of Health, Education and Welfare (HEW) (now known as the Dept. of Health and Human Services (HHS)) and Housing and Urban Development (HUD) regulations that consistently stated HIV was a disability.(66) In fact, Congress incorporated the HEW definitions of "physical or mental impairment"(67) and "major life activity"(68) in its legislative history.(69) The Equal Employment Opportunity Commission (EEOC) and the DOJ used the definitions of "physical or mental impairment,"(70) and "major life activity"(71) from the ADA congressional record and HEW regulations. The EEOC declined to include a representative list of physical or mental impairments for similar reasons Congress chose not to,(72) although the EEOC did state that "HIV infection [is] inherently substantially limiting."(73)

D. POLITICAL HISTORY

A variety of political and social forces came together to bring HIV/AIDS prominence on the national agenda. The AIDS epidemic was born in the early 1980s and became a true public health crisis.(74) The U.S. Centers for Disease Control estimated that by 1990 1,000,000 persons were infected with HIV, with more than 132,500 AIDS cases and nearly 81,000 AIDS-related deaths that had been reported to CDC.(75) By the late 1980s, a series of court decisions established that HIV, whether symptomatic or asymptomatic, was a disability under the Rehabilitation Act of 1973.(76)

The Supreme Court's Arline(77) decision, although not dealing with HIV/AIDS directly, was thought by many disability activists to resolve the debate about whether a contagious disease could be considered a handicap.(78) The plaintiff in Arline had tuberculosis and was discharged from her elementary teaching position after her third relapse within two years.(79) The case presented two related questions to the Court: could a contagious disease qualify as a handicap under the Rehabilitation Act, and if so, was the plaintiff "otherwise qualified" for her teaching position.(80)

The Court answered the first question with a resounding yes, providing multiple rationales for finding that individuals with contagious diseases come within the protected class. The Court, in an opinion by Justice Brennan, began by finding that plaintiff's tuberculosis was a physical impairment that substantially affected her respiratory system because "this impairment was sufficient enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited."(81) This seems to state that plaintiff met the first prong of the "handicap" definition.(82) Interestingly, Justice Brennan followed this conclusion by holding that plaintiff's hospitalization proved that she had a record of a handicap, the second prong of the definition, and therefore was protected by the Rehabilitation Act.(83) The Court may have framed its holding in this way to emphasize that a contagious disease creates a handicap from the moment it is first diagnosed, which for Arline was over twenty years ago, and is not dependent upon whether it presently substantially affects major life activities. This enlarged view of contagious diseases is supported by the Court's statements stressing that the expansiveness of the handicap definition reflected Congress' concern with protecting the disabled from not only "simple prejudice, but also from archaic attitudes and laws and from ... the effects of erroneous but nevertheless prevalent perceptions about the handicapped."(84)

Justice Brennan then discussed the third prong of the handicap definition as an alternative ground for finding for Arline: that she was regarded as handicapped by the school district. …

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