The ADA in the Courts
The Americans with Disabilities Act is a landmark piece of legislation that protects the disabled against discrimination in public places. It prohibits restaurants, health clubs, theatres, and medical facilities from turning the disabled away and requires all such facilities to make "reasonable accommodations" for the disabled. The ADA has transformed the lives of many disabled people, witness the wheelchair ramps now installed across the country.
Whether asymptomatic HIV infection was covered by the ADA became an issue in 1998 when Sidney Abbott, who is HIV-positive, sued her dentist, Randon Bragdon, for refusing to fill a cavity in his office. (That people with full-blown AIDS were covered by the ADA was never in dispute.) Abbott argued that HIV is a disability and, since the ADA defines "public accommodation" to include the "professional office of a health care provider," the dentist was illegally discriminating against her. The case eventually reached the U.S. Supreme Court.
In a much-publicized decision, the Supreme Court ruled in June 1998 that asymptomatic HIV infection does qualify as a physical impairment "from the moment of infection" due to "the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease" and because HIV has "a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection." Advocates for people with HIV were elated.
One year later in June 1999, however, four other court rulings clouded the picture for people with HIV. The first decision by the U.S. 7th Circuit Court of Appeals, Doe and Smith v. Mutual of Omaha Insurance Co., concerns "AIDS caps" in insurance policies. At issue in the case was whether the content of insurance policies is covered by the ADA. The plaintiffs, who sued under the pseudonyms John Doe and Richard Smith, argued Mutual of Omaha Company discriminated against them by selling them insurance policies with lifetime caps on AIDS-related expenditures. John Doe's policy had a lifetime AIDS cap of $100,000 and Richard Smith's policy had a cap of $25,000. Other health insurance policies sold by the company had lifetime caps for other diseases of $1 million.
In a divided ruling, the 7th Circuit Court found AIDS caps do not violate the ADA. The court argued Doe and Smith were not discriminated against because the company did offer them an insurance policy. The ADA would only prohibit Mutual of Omaha from singling out disabled people and refusing to sell them insurance. The court ruled the ADA did not prohibit the company from offering the disabled insurance policies with different terms and conditions from other people. The court argued the plaintiffs were not denied a policy because they had AIDS but rather were denied coverage for certain AIDS treatments.
In June 1999, the U.S. Supreme Court ruled on three other cases -- Sutton v. United Air Lines Inc., Murphy v. United Parcel Service, Inc., and Albertson's Inc. v. Kirkingburg -- involving the ADA. In all three cases, the Court ruled that the claimants were not entitled to protection under the ADA because their conditions (visual impairments in two cases and hypertension in the other) were correctable either through artificial means (corrective lenses in Sutton and medication in Murphy) or the body's own systems (self-correction of monocular vision in Albertson's).
The key decision was Sutton. In this case, twin sisters with severe myopia were denied jobs as global airline pilots because they did not meet the requirement of having uncorrected vision of 20/100 or better. Yet, with the aid of corrective lenses, their vision is 20/20 or better. The question the Court focused on was whether disability should be determined with respect to corrective measures or not. The Court ruled that in determining whether a person is disabled under the ADA, the effects of corrective measures -- both positive and negative -- must be considered. Three lines of reasoning, considered together, led the Court to this decision. First, the ADA requires that a disability "substantially limits" an individual in at least one major life activity. Because the wording is in the present indicative tense, the Court decided that a corrected impairment does not (presently) substantially limit a major life activity.
Second, disability is defined with respect to an individual, not a group. Thus, it was not a question of whether people with poor vision have a disability but whether the twin's correctable poor vision was a disability. To use an example given by the Court, a diabetic who is not on medication and one who is: the former is most likely disabled, but the latter is not, if the controlled diabetes does not substantially limit any major life activities. Similarly, if mitigating factors were not taken into account, then courts and employers could not consider severe side effects resulting from corrective measures, and this would also ignore individual aspects of the case.
Third, the Court placed a significant amount of weight on the Congressional finding that 43 million Americans have physical or mental disabilities. The majority argued that if mitigating factors were not taken into account, that number would be much higher, so Congress intended courts to consider corrective measures. Importantly, however, the Court noted that the use (or nonuse) of corrective measures does not automatically determine one's disability status. For example, people who have artificial limbs or who are in wheelchairs may be mobile and capable of functioning in society but still be disabled because of a substantial limitation on their ability to walk or run. The same may be true of individuals who take medicine to lessen symptoms of an impairment so that they can function but nevertheless remain substantially limited.
Moreover, the ADA counts someone as disabled if they are "regarded as" disabled, so someone whose disability is corrected can still be disabled according to the ADA if they are still considered disabled.
In Sutton the Court found that myopia did not substantially limit a major life activity (in this case, the ability to work) of the women, because they were only barred from one type of job -- global airline pilot -- not a class of job or many jobs across different classes. For example, the Court said, the women could work as regional pilots or flight instructors. Finally, United Air Lines did not regard them as disabled, and the creation of physical criteria for a job does not, in itself, violated the ADA. In Murphy the Court was not asked to determine whether the petitioner, who had high blood pressure that was controlled by medication, was disabled, but only asked whether mitigating factors should be taken into account; and this question was answered in Sutton. The most relevant difference in Albertson's is that the petitioner's condition (monocular vision) was not corrected artificially, but rather through subconscious compensation on behalf of the brain. The Court held that natural compensation was just as relevant as artificial corrections in determining disability under the ADA.
Implications for People with HIV/AIDS
Given the rulings of last June, an obvious question is: What are the implications for people with HIV or AIDS? The AIDS cap decision has the most immediate impact in the jurisdiction of the 7th Circuit, where AIDS caps can remain in insurance policies, although an appeal is likely. But what about the impact of the Sutton decision on people with HIV who are on a successful antiretroviral regimen? Does Sutton conflict with Abbott? Are they still protected by the ADA? In the popular press, the decisions were often described as major setbacks for people with correctable disabilities, including people with HIV. But while the implications are not entirely clear, the situation is more complex and probably not so dire.
To begin, the recent rulings will have little effect on the disability status of many people with HIV simply, and unfortunately, because drug regimens are not available to them or are not effective for them. However, there are reasons to think that even those on the most successful drug regimens will still be protected by the ADA, at least in many cases (it should be recalled that disability is defined on a case by case basis). While anti-retroviral drugs can suppress the replication of HIV to undetectable levels and lead to a partial increase in the number of CD4 cells, this does not mean that the person is no longer infected or that viral replication has completely stopped. In addition, effective drug therapy does not necessarily prevent opportunistic infections. For these reasons, it is likely that the courts would still consider people with undetectable viral loads to have a physical impairment, just as the Supreme Court determined that those with asymptomatic HIV have a physical impairment.
However, being physically impaired is only one part of the definition of being disabled. There are still the questions of (a) whether the impairment substantially limits one or more of the major life activities of the individual, (b) whether there is a record of such impairment, or (c) whether the impairment is regarded as having substantial limits on major life activities. On condition (b) it would be reasonable to think that people who have AIDS or who have developed serious but non-AIDS defining opportunistic infections have a record of a substantially limiting impairment and are, therefore, disabled according to the ADA even if they do not currently have any opportunistic infections. In addition, given the fears, biases, and misunderstandings surrounding HIV, it could be argued that a person with an undetectable viral load still qualifies as disabled under condition (c).
Since disability is determined on an individual basis, there is no definitive answer to whether those on a successful anti-retroviral therapy will count as disabled on condition (a). However, depending on the individual case, there are several potential arguments, some recognized by the Supreme Court in Bragdon, that could be used to show that those with an undetectable viral load and no symptoms are disabled under the ADA. For example, as the Court noted in Sutton, negative effects of corrective measures should be taken into account when determining disability status. Therefore, if taking anti-retroviral medication substantially limits a major life activity, that fact is relevant. Since drug therapy can involve serious side effects, can limit a person's mobility, can damage the liver, etc., it could be argued that the corrective measure itself substantially limits major life activities.
In addition, it is presumed that those on a successful drug regimen can still infect others with HIV, possibly drug resistant strains of HIV. Thus, despite treatment, HIV could substantially limit intimate relations. Moreover, it could still be argued that managed HIV limits the major life activity of reproduction for the reasons cited in Sutton.
Finally, those with asymptomatic HIV, whether controlled by drugs or not, could arguably face substantial limits on their ability to care for themselves, plan for the future, engage in human intimacy or personal interaction, get access to medical care, or travel abroad. For these reasons, it is likely that many people with HIV would be able to establish that they are disabled and entitled to the protections offered by the ADA.
This article was provided by Gay Men's Health Crisis. It is a part of the publication GMHC Treatment Issues. Visit GMHC's website to find out more about their activities, publications and services.