The Americans with Disabilities Act protects individuals with a "disability" from discrimination in employment, education and public accommodations. In its first-ever review of the definition of "disability" since passage of the ADA in 1990, the United States Supreme Court has issued a decision which, although arising in a non-employment-related context, will have far-reaching consequences for employers. In Bragdon v. Abbott, No. 97-156, ___ U.S. ____, 1998 U.S. Dist. LEXIS 4212 (June 25, 1998), the Court ruled that Sidney Abbott's HIV infection was a "disability" even though she had no symptoms of the disease. The facts of this case are simple. The implications are enormous.
Facts
Abbott, infected with the human immunodeficiency virus ("HIV"), disclosed her HIV status on a patient registration form during a routine dental visit. Randon Bragdon, the dentist, discovered a cavity but, because Abbott is HIV positive, refused to fill the cavity at his office. Instead, Bragdon offered to treat Abbott at a local hospital at no extra charge, though Abbott would be forced to incur the cost for using the hospital's facilities.
Rather than accept the offer, Abbott brought suit in the United States District Court for the District of Maine, alleging that Bragdon unlawfully discriminated against her in violation of Title III of the Americans with Disabilities Act (the public accommodation provision), as well as state law. At the close of discovery, both sides moved for summary judgment and the District Court granted Abbott's motion. The First Circuit Court of Appeals affirmed. The Supreme Court granted certiorari, inter alia, to determine whether HIV is a disability under the ADA even when the disease has not progressed to a "symptomatic" stage.
Court Holds That Abbott's HIV Infection Is A Disability Under The ADA
Under the ADA, "disability" is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment. 42 U.S.C. ' 12102(2).
Without addressing the applicability of subsections (B) or (C), the Supreme Court concluded that Abbott's HIV infection constituted a disability under subsection (A), i.e. that it was a physical impairment that substantially limited a major life activity.At the outset, the Court determined that HIV is a "physical impairment" under the ADA. Abbott persuaded the Court that based on "the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease," HIV "is an impairment from the moment of infection." Thus, the Court concluded that "HIV . . . satisfies the statutory and regulatory definition of physical impairment during every stage of the disease."
Having met the first hurdle in determining whether an individual falls within the protected class, Abbott next argued that she was substantially limited in the major life activity of reproduction. Specifically, Abbott claimed that since learning she was HIV positive, she had decided not to have children, and that her HIV infection therefore limited a major life activity. The Court agreed, noting that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself." The Court also commented that "[g]iven the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant." Furthermore, the Court reasoned that "the word 'major' denotes comparative importance," thus leaving open the possibility that what is a "major life activity" to one, may not, in fact, be "major" to another.
Addressing the last hurdle of proving an ADA violation, the Court recognized that the statute is not operative, and the definition of "disabled" not satisfied, unless Abbott's physical impairment "substantially limited" reproduction. In an act that clearly exemplifies the adage "bad facts make bad law," the Supreme Court took a broad leap and found that Abbott's decision to refrain from bearing children was a substantial limitation of a major life activity. Faced with complicated scientific evidence, the Court concluded that a 20% risk of transmitting HIV to a partner and a 25% risk of infecting an unborn child constitute a "substantial limitation" on reproduction. Justifying its ruling, the Court explained:
The Act addresses substantial limitations on major life activities, not utter inabilities. Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health. This meets the definition of a substantial limitation.
In response to Abbott's scientific evidence, Bragdon argued that the risk of transmitting HIV to an unborn fetus could be reduced to 8% with drug therapy. The Solicitor General, on Abbott's behalf, argued that the Court should not consider "mitigating measures," such as drugs, when determining whether a physical impairment substantially limits a major life activity. Without resolving the issue of "mitigating measures," the Court stated that:
It cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction.
Accordingly, the Court held that Abbott had a "disability" as defined by the ADA.
Implications For Employment Matters
Though not an employment discrimination case, the Court's decision in Bragdon could have a profound impact on employers as it may be easier for individuals with certain asymptomatic diseases to establish that they are disabled under the ADA. For example, the decision raises the possibility that carriers of genetic diseases, who themselves are entirely asymptomatic, but who nevertheless bear some numerical risk of passing the diseases on to their children, will fall within the ADA's definition of disabled.
Further, the Supreme Court appears to have redefined the term "substantial limitation" to mean something far less than "substantial." The decision notes that "[w]hen significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." Not only does the decision change "substantial" to "significant," but it appears that an 8% risk satisfies the definition. As a result, courts may more readily conclude, as a matter of law, that a condition's impact on a major life activity is "substantial."
Finally, though given the opportunity to resolve a split among lower courts, the Supreme Court explicitly declined to rule on whether "mitigating measures" should be considered when determining whether an impairment substantially limits a major life activity. Instead, the Court conveniently side-stepped the issue by deciding that even if it considered the effects of drug therapy, the risk of transmitting HIV to an unborn fetus would still be substantially limiting. It is likely that the Court will be forced to confront this issue as medical cures and scientific developments advance.
While significant, the Court's holding in Bragdon should not discourage employers faced with an ADA claim. The decision affects only whether a plaintiff falls within the "protected class," i.e., a qualified individual with a disability. To defeat summary judgment and/or prevail at trial, however, applicants or employees will still be required to prove that their employer had knowledge of the alleged disability and that they were capable of performing the essential functions of the position sought or held, with or without reasonable accommodation. Moreover, nothing in Bragdon v. Abbott affects an employer's ability to defend against an ADA claim by presenting legitimate, non-discriminatory reasons for its actions.
*article courtesy of Littler Mendelson.