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HIGH HOPES: As HIV becomes manageable through medication, infected people ironically stand to lose legal protection
Kenneth Rutman
October 1, 1999
Arts and Understanding - October 1999

Twin sisters from Spokane, Washington -- Karen Sutton and Kimberly Hinton -- hoped to become pilots for United Air Lines but were turned down because without their glasses, they are too nearsighted to fly. They looked to the judicial system for help. That was grounded when the U.S. Supreme Court rejected their claim in a 7-2 vote this past June.

Now why does this ruling matter at all to people living with HIV/AIDS? Well, in the next-to-last day of the 1998-1999 term, the federal justices decided three cases that made it clear that the national American With Disabilities Act's protections against workplace discrimination are unlikely to cover people with "correctable" disabilities -- such as the nearsighted sisters in Sutton v. United Air Lines, or the mechanic with high blood pressure in Murphy v. United Parcel Service, or the truck driver with vision in only one eye in Albertson's v. Kirkingburg.

In each case, the Supreme Court ruled that employers don't have to accommodate people whose correctable conditions (if they remain uncorrected) leave them unable to meet the employers' standards. Such people aren't likely to qualify as "disabled" under the ADA as long as their conditions are treatable through the use of eyeglasses, medication, or other means. Advocates and activists have pondered long on the Supreme Court's latest words in order to gauge the implications for the AIDS community. If the ADA doesn't protect a worker with high blood pressure because the condition can be controlled with drugs, what about someone who is HIV positive and whose illness can be regulated with combination therapy? It's an ironic scenario: When the virus becomes manageable through medicine, people who are infected stand to lose protections they'd otherwise receive under the law.

It's too soon to say, though, whether that will hold true. The Supreme Court said nothing directly about whether HIV is in the same category of "correctable" disability as myopia, high blood pressure, and monocular vision. We won't know until the lower courts try to apply the latest round of decisions to other employers in other situations. The only hint came when Justice David Souter contrasted the case of the vision-impaired trucker, whose disability was thought not to "cause a substantial limitation to a major life activity," to last year's Bragdon v. Abbott, involving an HIV positive patient who was illegally refused treatment by her dentist. Some disabilities, Souter implied, do impair "major life activities," and people with those disabilities do qualify for ADA protection. In Bragdon, the court concluded that for the dental patient, HIV infection limited a major life activity. Even so, as Souter noted, the Bragdon court refused to decide whether HIV infection is a "per se disability" for purposes of the statute.

What remains troubling about the Supreme Court's jurisprudence on the disabilities act is that the court has never flatly said that HIV and AIDS are presumptively covered. The reason the court gave for the ruling in favor of the patient in Bragdon was that her illness interfered with the major life activity of reproduction. But that rationale left a gaping hole: What about HIV-positive people for whom reproduction is not an issue, like children, postmenopausal women, and, arguably, many gay people? The court said nothing about whether the ADA means to protect them from discrimination.

Meanwhile, in this year's three cases, the employees tried to argue that their vision and blood pressure problems substantially limited a different "major life activity": the ability to work. Those arguments got them nowhere. The court said that just because potential employers found them unsuitable for the specific jobs they wanted, that didn't preclude them from a whole "class of employment," comparable jobs requiring similar skills or training. In other words, Sutton and Hinton can still fly short routes for regional airlines, as they'd been doing before, they just can't fly for United.

This suggests that HIV-positive employees, in making a workplace discrimination case under the ADA, had better not claim their condition limits the major life activity of working. A stronger argument, experts suggest in the recent July 26 issue of AIDS Policy and Law, is that HIV significantly affects other important life functions: the ability to care for oneself, the ability to be sexually intimate, and the ability to plan for the future.

Although the Supreme Court has narrowed the coverage of the Americans With Disabilities Act with these three decisions, one shouldn't conclude that the justices have sent a nasty message to employees with HIV/AIDS. There is still plenty of room for an effective case to be made that HIV infection has a more drastic impact on a worker's life than being nearsighted. At the same time it's worth noting that the approach taken in all three opinions leaned heavily toward restricting the number of people who can claim they have a covered "disability" -- despite the stated intent of Congress to give that term a broad meaning when it passed the law almost a decade ago. Little wonder, then, that the rulings got a gleeful reception from employers' groups and their lawyers.

Finally, a tangential point: The defendant whose arguments helped persuade the Supreme Court to close the courthouse doors to many people with ADA claims, United Airlines, is the same company that fought a vigorous, years-long battle -- which they lost -- to avoid complying with San Francisco's domestic partner benefits law. Keen observers will note that the courts ruled against UAL, after paying attention to equally vigorous protests from the public. Discerning travelers will take note of UAL's questionable legal track record.

------------ Kenneth Rutman, Managing Editor of the LA Daily Journal, is a lawyer and legal journalist based in Los Angeles.

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