AIDS & Public Policy Journal 5, no. 4 (Winter 1990): 167-72

In School Board of Nassau County, Florida v. Arline, the U.S. Supreme Court held that a school teacher with tuberculosis was a handicapped individual within the meaning of Section 504 of the Vocational Rehabilitation Act of 1973. Because the condition had required hospitalization, Arline had established that one or more of her major life activities was substantially limited by her impairment, thereby satisfying clause (i) of Section 706(8)(B). In addition, the Court found that the teacher's earlier hospitalization for tuberculosis sufficed to establish a record of impairment within the meaning of the Rehabilitation Act. The Arline Court made it clear that the case did "not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act. Thus, although the Court's analysis suggests that it would consider AIDS or AIDS-related complex (ARC) to be handicaps under the Act in certain circumstances, the Act's coverage of asymptomatic carriers of human immunodeficiency virus (HIV) remains an open and unresolved question, the significance of which is discussed below as it pertains to employment matters. In part I, I discuss the statutory and regulatory framework of the Act and its definitions of handicap, impairment, and major life activities. In part II, I offer a brief discussion of pertinent case law involving asymptomatic carriers. Part III contains a review of the opposite conclusions reached by Justice Department officials on the question of whether asymptomatic HIV carriers are protected by Section 504.