Rulings issued by the U.S. Supreme Court in June severely limited the scope of the Americans with Disabilities Act (ADA). The Court explicitly conceded that the rulings would place tens of millions of Americans with health conditions, including severe hypertension and diabetes, outside of the protections of the ADA.
Although none of the cases directly involved HIV/AIDS, the rulings could be applied to drastically curtail the ADA's prohibition of HIV-discrimination. The rulings raise questions about the ADA's continued coverage of people with HIV disease who are responding to medications or who are state employees. Coming just one year after Bragdon v. Abbott, in which the Court ruled that people with HIV/AIDS were covered by the ADA, the cases reveal the Court's general lack of sympathy with and understanding of disability rights.
In separate cases, the Supreme Court considered whether "corrective measures," such as medications, treatments or medical devices, should be taken into consideration when evaluating whether a person meets the ADA's definition of disability. The Supreme Court ruled that a plaintiff's impairment must be considered in its "corrected" state.
In Sutton v. United Airlines Inc., the Court held that twin sisters who applied to be global airline pilots were not disabled because eyeglasses could correct their vision problems. United Airlines denied the sisters jobs because they both had severe myopia. The Court dismissed their ADA claims by holding they were not disabled because, with eyeglasses, they both had 20/20 vision.
In Murphy v. United States, the Court considered a case brought by a mechanic who was fired by his employer because his severe hypertension caused his blood pressure to exceed the federal Department of Transportation's requirements for drivers of commercial vehicles. The Court held the mechanic was not disabled because, when medicated, his high blood pressure does not substantially limit his ability to work.
In Albertsons Inc. v. Kirkingburg, the Court ruled that an employer could fire a truck driver whose vision did not meet the Department of Transportation's minimum vision requirements. The Court held that although the truck driver was blind in one eye, he was not disabled because his brain was able to compensate for his blindness and enable him to see "normally" out of his functioning eye.
These rulings may mean that people with HIV disease who are responding to medications do not meet the ADA's disability definition. For example, a court could conclude that a person who was on disability benefits but has improved because of drug therapy would not be protected from HIV discrimination during the hiring process or on a new job. Perversely, the ADA would provide no protection for many of those who are able and attempting to return to work, while still providing protection to those who could not.
Due to the reasoning applied by the Supreme Court last year in Bragdon v. Abbott, however, these rulings may not undermine the rights of people with HIV. To be disabled under the ADA, a person must have "a physical or mental impairment that substantially limits a major life activity." The Supreme Court's recent decisions all considered arguments based on the major life activity of working. In Bragdon, the Court ruled that a woman with HIV disease met the ADA's definition of disability because she was substantially limited in the major life activity of procreation. The Court reached this conclusion due to the risk of infection to the woman's sexual partners and to her potential children.
Using Bragdon's reasoning, in considering whether a person with HIV who was responding to medications was disabled, the Court should not evaluate the person's general health or ability to work, but whether the HIV medications reduced the risk of transmission of the virus to sexual partners or to potential children.
The Court could still overturn Bragdon based on advancements in the prevention of HIV transmission from mother to child due to drug treatments, and the ability to procreate through means other than sex. Consequently, continued protection of people with HIV disease under the ADA may depend on courts finding sexual relations in general, and not just procreation, a "major life activity." Lower courts have reached this decision already.
The Court did make one point in its decisions that may protect some people with HIV disease who are responding to drug therapy. The Court ruled that it will consider all the effects of corrective measures -- positive and negative. This means that courts should take into account the side effects of HIV medications, and could decide that a person is disabled because of those side effects.
"Regarded as" disabled
In Sutton and Murphy, the Supreme Court decided another issue that will restrict the scope of the ADA's coverage. Under the ADA, people are disabled not only if they actually have an impairment that substantially limits a major life activity, but also if they are "regarded as" having such an impairment. This provision is designed, in part, to prohibit discrimination based on an employer's mistaken belief that an employee's actual impairment substantially limits their abilities, when in fact the impairment does not.
In the context of HIV/AIDS, the "regarded as" prong would prohibit an employer from firing an HIV-negative person because the employer mistakenly thought the employee was HIV-positive. It would also prohibit an employer from firing an HIV-positive person who was asymptomatic because the employer mistakenly thought that all people with HIV disease were too ill to work. Since HIV discrimination is usually based on unfounded myths and stereotypes about the risk of infection in the workplace and the employee's likelihood of imminent illness and death, advocates have always assumed that HIV disease fits comfortably within the "regarded as" prong of the ADA's disability definition.
The Court's cramped interpretation in Sutton and Murphy, however, renders the "regarded as" prong all but meaningless. The Court held that for an employee to be "regarded as" substantially limited in the major life activity of working, he or she must be regarded as unable to do a "broad class of jobs" rather than the single type of job he or she has or is applying for.
In order to meet the Court's standard, an employee will have to prove that when an employer fires him or her, the employer was not just thinking that the employee was unqualified for his or her position, but that the employee was unqualified for a broad class of positions. Proving so specifically what is going on in the mind of a discriminating employer will be difficult. It seems likely that most employers are only considering an employee's suitability for his or her job, not contemplating the employee's ability to do a broad class of jobs.
Once employers become educated about the rulings in Sutton and Murphy, it will be easy for them to phrase the grounds for termination in such to avoid liability under the "regarded as" prong of the ADA's disability definition. An employer may be able to avoid liability by writing a termination letter that states: "We feel that HIV-disease makes you unqualified to be a pediatric oncology nurse. We have not considered, and or decision in no way reflects upon, how HIV-disease impacts your ability to perform other nursing or health care jobs." Having received this termination letter, proving that an employer regarded an employee as unable to work in a "broad class of job" would be difficult.
The Supreme Court also issued an opinion that may strip state employees of ADA protection. In Alden v. Maine, the Court held that employees of the state of Maine could not sue the state for violations of the Fair Labor Standards Act, which sets the national minimum wage and provides for overtime pay. The Court held that because of states' "sovereign immunity," they could not be sued without their consent by private citizens in state court for violation of a federal law. Since the Supreme Court has already held that private citizens could not sue in federal court for violations of the FLSA, the decision, in effect, means that state employees have no rights under the FLSA.
The Court's reasoning in Alden could apply to all federal employment and civil rights law. It could mean that employees of state and local government bodies could not sue their employer for a violation of the ADA. Fortunately, California's disability rights laws are as extensive as the ADA so that state employees won't be stripped of all legal recourse for disability and HIV discrimination.
Brad Sears is director of the HIV Legal Checkup Project.