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Suing Your Employer for HIV-Related Discrimination Under the ADA
How Disabled Is Too Disabled?

By Catherine Hanssens, Esq.

Fall, 1995

Those of you who are old enough may recall a long-running commercial from years ago, in which the marketing angle for a laxative focused on the less-predictable property of prunes in achieving the desired result. The supposed superiority of the laxative was illustrated by the dilemma urgently posed by the "irregular" woman contemplating the prune solution: "Are three enough? Are seven too many?"

The commercial comes to mind after reading a couple of recent cases grappling with the question of how a fired employee satisfies the requirement of being a "qualified person with a disability" in order to be protected under the Americans with Disabilities Act (ADA) when they are fired for being, or associating with, a person with HIV.

In the previous issue of POZ, we discussed a case, Ennis v. National Association of Business and Educational Radio, Inc., in which the judge questioned whether an individual with asymptomatic HIV infection was sufficiently "disabled" for protection from employment discrimination under the ADA. This past June, a federal trial court in Pennsylvania asked and answered the opposite, "seven-prune" question: Is a PWA who applies for disability benefits claiming "total and permanent disability" too disabled to sue for job discrimination as a "qualified person with a disability?" The court answered yes in this case, McNemar v. The Disney Stores, widening a split among courts as to whether filing for disability benefits disqualifies a fired worker from bringing a discrimination lawsuit under the ADA.

Clearly, there are situations in which a former employee's disability would preclude continued employment. It is quite another matter to say, as the McNemar court did, that a person's benefits application claiming total or permanent disability automatically bars an ADA discrimination suit against a former employer. After all, even a person unable to work at the time of applying for benefits may recover sufficiently to be "qualified" to work at a later date.

McNemar, an assistant manager of a Disney retail store in New Jersey's Cherry Hill Mall, was diagnosed with AIDS in October, 1993 and was briefly hospitalized. When he returned to work the following month, the district manager confronted McNemar with questions about whether he had AIDS. McNemar denied his condition, although he had confided it to the store manager at the time of his diagnosis.

About a week later, McNemar took $2 from a cash register and gave it to an employee to buy him a pack of cigarettes because his wallet was in an employee locker as store policy required. Another well-known policy warned employees that thefts of any size would be cause for firing, and offered $100 for employee-reported theft; the employee who ran for the cigarettes promptly reported McNemar's action. Disney supervisors confronted, then fired, McNemar. Following his discharge, but prior to suing Disney for disability discrimination, McNemar certified in an application for disability benefits that he was "totally and permanently disabled."

Dismissing the case prior to trial, the federal judge ruled that McNemar's sworn statement in his application for disability benefits prevented him from claiming in court that he is a "qualified person with a disability," i.e., a person with a disability able to do the essential tasks of the job at issue, as required under the ADA.

The curious thing about this decision is the court's concern that a plaintiff might be "double-dipping" -- collecting disability benefits while pursuing damages or reinstatement to a job one claims the ability to perform. Rather than considering eligibility for disability benefits as some evidence of the plaintiff's ability to work, the court treats it as the last word on the issue.

The McNemar court avoided any individual assessment of the plaintiff's actual ability to work and quickly concluded that he is too disabled to qualify for the ADA's job protection. The judge also failed to recognize that the Social Security Administration (SSA) has long acknowledged that disabled persons may be able to perform some work. In fact, the SSA has established work incentive plans to encourage persons receiving disability benefits to return to work.

The McNemar decision can present a genuine dilemma for people with disability discrimination claims. Suing one's employer is neither quick nor cheap, and a fired employee with AIDS may be able to work but unable to find another job during the years a lawsuit is pending. An employer who fires such a person "for cause," as happened to McNemar, may be denied unemployment and health benefits and consequently have no alternative but to file a disability claim, if eligible. McNemar says that you can apply for disability benefits or you can sue your employer, but you can't do both.

While a couple of cases support the McNemar reasoning, a handful of cases do not. Last year, an Illinois federal court rejected the argument that a former employee with AIDS who received disability benefits after his employer fired him was prevented from recovering under the ADA. This case relied on a appeals court decision that the SSA's award of disability benefits can't be read as a final judgment that the plaintiff in a disability discrimination case is unable to work. The appeals court recognized that an applicant may meet the criteria for a listed disability and receive benefits without consideration of an overall ability to work. The issue in a discrimination case is whether there is sufficient evidence for a jury to determine whether a plaintiff could perform the essential functions of the job with or without reasonable accommodation. At least four other federal trial courts have come to similar conclusions.

The pending appeal of the McNemar case may help settle the dispute. The conclusion the appeals court reaches will make a real difference to a significant number of PWAs who continue to unfairly lose their jobs.

Catherine Hanssens is the AIDS Project Director at Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.

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