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AIDS Project Director's Report
Status of the ADA for People With HIV: Not Dead Yet

By Catherine A. Hanssens

October 1, 1999

In June, the U.S. Supreme Court delivered a heavy blow to people with disabilities. Three decisions -- Sutton v. United Airlines, Murphy v. UPS, and Albertsons v. Kirkingberg -- may have closed court room doors to many whose impairments are the reason they lose, or fail to get, a job.

Rejecting the position of all federal agencies and most appeals courts, the Supreme Court ruled that individuals who largely eliminate the impact of their impairments through "mitigating measures," like eyeglasses, or hypertension medications, are not "disabled" enough to get the ADA's protection, even when an employer fires that individual on the basis of the impairment. The Court also ruled that employers may prefer certain physical characteristics over others, under a narrow view of what constitutes "disability discrimination," even if the preferred characteristic is not a business necessity or job-related. Thus, a person who is deaf may not be discriminated against in a job that does not require hearing, but an employer can prefer not to hire a person who hears perfectly with hearing aids for the same job.

The negative reach of the decision took most advocates by surprise. After all, the Court's initial ADA rulings over the past year were good ones. Prior to this summer, the Court had ruled that a dental patient's HIV was a disability under the ADA, and that ADA protections apply within prison walls. Most recently, in Cleveland v. PMSC, the Supreme Court adopted arguments which Lambda has been advancing in federal courts for several years: that individuals who apply for disability benefits after being fired from a job are still entitled to pursue ADA employment discrimination claims.

In this recent set of decisions, however, an understanding of the ADA's essential purpose seemed to elude the Court. It missed a central point: that discrimination in these and in most cases is due to an employer's refusal to focus on the abilities of an individual who has compensated for a serious impairment rather than on that person's underlying condition. This is precisely what Congress intended to end.

What do these cases mean for people with HIV?

For several reasons, these decisions may create fewer problems for people with HIV than for those with other disabilities. The decisions and oral arguments that preceded them strongly suggest that a disease like HIV, with its documented history of stigma-associated discrimination and misunderstanding, is likely to fit even within the Court's crabbed definition of disability. First, the reach of the Court's rulings might be limited to the unique facts of these cases, two of which involved federal guidelines that withhold licenses based on physical criteria the employers used. We also believe that there is still room to advance our cases under the ADA's "regarded as" provision, which protects individuals from discrimination when they can show that an employer viewed them as having a substantially limited impairment, regardless of whether it's true. In our experience, the root of discrimination against people with HIV is the fact that many employers regard them as substantially limited in their ability to interact effectively and safely with others. Lambda will continue filing cases and briefs to ensure that the ADA provides the greatest amount of protection possible.

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