On August 15, 1997, the federal Fourth Circuit Court (in the federal system, the circuit courts rank only below the United States Supreme Court, and as a practical matter are courts of last resort as a result of the extremely limited jurisdiction of the higher court) issued the devastating opinion of Runnebaum vs. NationsBank.

Employee Runnebaum had sought relief in the courts, believing that he had been terminated from his job as a result of his HIV-positive status. Through this opinion, Mr. Runnebaum was effectively barred from even getting a chance to prove up his allegations in court, and the ruling has been widely attacked as a horrendous example of conservative judicial activism.

Six members of the twelve member court essentially held that the Americans with Disabilities Act ("the ADA") provides no legal protection to people with asymptomatic HIV infection. Although the opinion is at least thus far isolated in its holding, its timing is horrendous considering the ever- increasing number of people with HIV without symptoms contemplating a return to work but desperately needing some form of protection from the discrimination still abundant in today's society.

A person is considered disabled under the ADA if they

• have a mental or physical handicap which substantially limits one or more major life activities;

• have a record of such impairment; or

• are regarded as having such an impairment.

In Runnebaum, despite clear and abundant legislative history noting that people with HIV, whether symptomatic or not, require legal protections, and court decisions confirming that conclusion, the court went out of its way to refute each element of the above ADA criteria.

To this writer, as a person living with HIV, the truly troubling thing about the court's analysis is its transparent desire that HIV "just go away," and its gutting of the law's clear intent to reach its nasty result. We can only hope that the decisions, in time, will be proven to be an aberration. But for now, it only reinforces the idea that it can be an ugly world out there, and that caution may be required as a matter of survival.

Conclusion

These are definitely "interesting times," and we cannot afford to get lazy and pretend the epidemic today is the same as ten years ago, or even one year. Please: protect yourselves!

The author gratefully acknowledges the assistance and input of Per Larson, financial advisor, New York; Mark Scherzer, attorney, New York, and Thomas McCormack, author and benefits expert, Washington, DC.

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