Asymptomatic HIV as a disability under the Americans with Disabilities Act

Washington Law Review

Volumn 73, Issue 2, 1998, Pages 403-430

  Chambers, Elizabeth C ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

AMERICANS WITH DISABILITIES ACT 1990; ARTICLE; DISABLED PERSON; GOVERNMENT REGULATION; HEALTH CARE AND PUBLIC HEALTH; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; LAW; LEGAL APPROACH; LEGAL ASPECT; SOCIAL PSYCHOLOGY; UNITED STATES;

AMERICANS WITH DISABILITIES ACT 1990; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

DISABLED PERSONS; GOVERNMENT REGULATION; HIV INFECTIONS; HUMANS; LEGISLATION; PREJUDICE; UNITED STATES;

EID: 0032034388     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (185)

1. Centers for Disease Control and Prevention, U.S. Dep't of Health & Human Servs., 9 HIV/AIDS Surveillance Report, at 3 (Midyear ed. 1997).
2. 9 HIV/AIDS Surveillance Report, Id3 1997). (noting that as of June 1997, approximately 87,000 persons were infected with HIV, but not AIDS, in 29 states that conducted HIV case surveillance of adults, adolescents, and/or children, excluding persons who tested anonymously). As many as one million Americans may be infected with HIV. See Petition for Writ of Certiorari at 11, Abbott v. Bragdon, 107 F.3d 934 (1st Cir.) (No. 97-156), cert. granted, 118 S. Ct. 554 (1997).
3. Christine Gorman, Battling the AIDS Virus: There's Still No Cure, But Scientists and Survivors Make Striking Progress, Time, Feb. 12, 1996, at 62, 64;
4. see also Robert Steinbrook, Battling HIV on Many Fronts, 337 New Eng. J. Med. 779, 779 (1997) ("Of the estimated 650,000 to 900,000 HIV-infected people in the United States, many do not know that they are infected.") (citation omitted).
5. Steinbrook, supra note 3, at 780. According to a recent survey of 2000 adults, more than one in five Americans favor firing or restricting an HIV or AIDS-infected colleague, and more than 30% of workers believe their employers would fire, or place on disability, an infected colleague. Charlene Laino, AIDS a Big Concern in the Workplace (visited Feb. 28, 1998) 〈http://www.msnbc.com/ news/120025.asp〉.
6. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. §§ 12101-12213 (1994)).
7. Compare Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 167-74 (4th Cir. 1997) (finding asymptomatic HIV-positive plaintiff is not disabled within meaning of ADA), and Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995) (holding asymptomatic HIV-positive person does not suffer limitation in major life activity and is therefore not disabled), with Abbott v. Bragdon, 107 F.3d 934, 949 (1st Cir.) (concluding that plaintiff is disabled because asymptomatic HIV affects major life activity of reproduction), cert. granted, 118 S. Ct. 554 (1997), and Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994) (finding asymptomatic HIV-positive person disabled for purposes of Rehabilitation Act or ADA because HIV is contagious disease).
8. See 42 U.S.C. § 12101(a)(7).
9. 42 U.S.C. § 12102(2)(A)-(C). This Comment will explore the disability definition's first prong (a physical or mental impairment that substantially limits one or more of the major life activities of such individual) and third prong (being regarded as having such an impairment). Whether an individual has a "record of such an impairment," the second prong of the definition, is not as critical to this Comment because none of the fact scenarios examined by the courts present individuals with a record of HIV, Moreover, if an individual were discriminated against because of a record of having HIV, the most likely reason would be because of a fear or prejudice of the disease, therefore placing the individual in the "regarded as" portion of the definition. See discussion infra Part III.B.
10. See discussion infra Parts I.B-C.
11. See Wendy E. Parmet & Daniel J. Jackson, No Longer Disabled: The Legal Impact of the New Social Construction of HIV, 23 Am. J.L. & Med. 7, 16-17 (1997) (listing major federal and state cases that concluded HIV-positive individuals are handicapped for purposes of Rehabilitation Act). The ADA specifically acknowledges that cases decided under the Rehabilitation Act are appropriate precedent for ADA cases because the two statutes have identical disability definitions. 42 U.S.C. § 12201(a) (1994).
12. School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 n.7, 283 (1987) (declining to answer whether AIDS infection qualifies as disability, but stating that individuals qualify as handicapped under Rehabilitation Act if they are regarded as having impairment that substantially limits their ability to work).
13. See cases cited supra note 6.
14. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 169-72 (4th Cir. 1997); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995).
15. See, e.g., Abbott v. Bragdon, 107 F.3d 934, 949 (1st Cir.), cert. granted, 118 S. Ct. 554 (1997).
16. Abbott v. Bragdon, 118 S. Ct. 554 (1997). In addition, the Court will decide a third issue of whether a private health care provider under Title III must perform invasive procedures on an infectious patient in the provider's office, and whether courts should defer to the health care provider's professional judgment assuming it is reasonable in light of then-current medical knowledge. Id. This issue, however, is beyond the scope of this Comment.
17. A peculiarity of the "regarded as" prong of the disability definition is that an asymptomatic HIV-positive individual will not qualify as disabled until that individual is discriminated against This circularity is not specific to HIV-status, but is an idiosyncrasy of the statute's structure. See infra Part III.B (discussing "regarded as" prong generally).
18. Pub. L. No. 93-112, 87 Stat. 357 (1973) (codified as amended at 29 U.S.C. §§ 701-796 (1994)).
19. See Centers for Disease Control, supra note 1, at tbls. 16-18.
20. The Rehabilitation Act uses the term "handicap," 29 U.S.C. § 706(8)(B), whereas the ADA refers to "disability," 42 U.S.C. § 12102(2) (1994). Although these terms are legal equivalents, the ADA uses the word "disability" rather than "handicap" because it is the term that persons with disabilities currently prefer. See H.R. Rep. No. 101-485, pt. 2, at 50-51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332-33; H.R. Rep. No. 101-485, pt. 3, at 26-27 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 448-50. In deference to modern preferences, the term "disabled" is used in this Comment.
21. 29 U.S.C. § 701.
22. 29 U.S.C. § 706(8)(B).
23. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. §§ 12101-12213 (1994)). For a comparison of disability definitions, see 29 U.S.C. § 706(8)(B) and 42 U.S.C. § 12102(2)(A)-(C).
24. See 42 U.S.C. § 12101(a)-(b).
25. See 42 U.S.C. § 12101(a)(7).
26. Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1319 (E.D. Pa. 1994). But see Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 168-69 (4th Cir. 1997) (recognizing that HIV is not mentioned in statute itself, but finding that plain statutory language requires that asymptomatic HIV infection is not impairment under ADA).
27. See discussion infra Parts I.B-C.
28. 42 U.S.C. § 12102(2)(A)-(C). Although this Comment examines only the ADA's disability definition, an individual must satisfy other requirements as well to qualify for the ADA's protection. Individuals who can perform the essential functions of a job, with or without reasonable accommodation, are considered qualified. 42 U.S.C. § 12111(8). Under Title I of the ADA, employers must provide reasonable accommodation to disabled individuals who are otherwise qualified for the job, unless the accommodation would pose an undue hardship for the employer. 42 U.S.C. § 12112(b)(5)(A). Under Title II of the Act, which prohibits discrimination in public transportation provided by public entities, no qualified individual with a disability may be discriminated against by a public entity. 42 U.S.C. § 12132. Under Title III, disabled individuals may not be discriminated against in any place of public accommodation by any person who owns, leases, or operates the public accommodation. 42 U.S.C. § 12182. However, the ADA is not applicable to any public accommodation where the disabled individual in question poses a "direct threat," or significant risk, to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. 42 U.S.C. § 12182(b)(3).
29. 42 U.S.C. § 12201(a) (1994); see also Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir. 1995).
30. H.R. Rep. No. 101-485, pt. 2, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334.
31. S. Rep. No. 101-116, at 22 (1990).
32. "People with HIV disease are individuals who have any condition along the full spectrum of HIV infection - asymptomatic HIV infection, symptomatic HIV infection or full-blown AIDS. These individuals are covered under the first prong of the definition of disability in the ADA . . . ." 136 Cong. Rec. H4623 (daily ed. July 12, 1990) (statement of Rep. Owens); see also 136 Cong. Rec. H4626 (daily ed. July 12, 1990) (statement of Rep. Waxman) (noting that individuals who fall anywhere along HIV's broad continuum of stages are covered under first prong of ADA's definition of disability); 136 Cong. Rec. 11,453 (May 22, 1990) (statement of Rep. McDermott) (same); 135 Cong. Rec. 19,867 (Sept. 7, 1989) (statement of Sen. Kennedy) (concluding that individual is protected by legislation if that individual is asymptomatic and HIV positive).
33. 42 U.S.C. § 12116 (1994).
34. 42 U.S.C. § 12112 (1994).
35. 29 C.F.R. § 1630.1-16 (1997).
36. 42 U.S.C. § 12102(2)(A) (1994); 29 C.F.R. § 1630.2(g)(1).
37. 29 C.F.R. § 1630.2(h).
38. 29 C.F.R. app. § 1630.2(j).
39. 29 C.F.R. app. § 1630.2(j).
40. 29 C.F.R. § 1630.2(i).
41. 29 C.F.R. app. § 1630.2(i).
42. 42 U.S.C. § 12102(2)(C) (1994).
43. 29 C.F.R. § 1630.2(l).
44. 29 C.F.R. app. § 1630.2(l).
45. 42 U.S.C. §§ 12134(a), 12186(b) (1994).
46. Title II prohibits public entities from discriminating against qualified individuals with regard to services, programs, or any other activities. 42 U.S.C. § 12132 (1994). Title III prohibits owners, lessors, or operators of public accommodations from discriminating on the basis of disability with regard to the use of such accommodations. 42 U.S.C. § 12182 (1994).
47. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995). But see Abbott v. Bragdon, 107 F.3d 934 (1st Cir.) (examining whether asymptomatic HIV-infected patient qualifies as having disability under Title III), cert. granted, 118 S. Ct. 554 (1997).
48. See 42 U.S.C. § 12102(2)(A)-(C) (1994).
49. 28 C.F.R. § 35.104(1)(ii) (1997); 28 C.F.R. § 36.104(1)(iii) (1997).
50. 28 C.F.R. § 35.104(1)(ii); 28 C.F.R. § 36.104(1)(iii).
51. See Parmet & Jackson, supra note 10, at 16-17.
52. See infra Part II.B.
53. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 169-72 (4th Cir. 1997); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995).
54. See, e.g., Abbott v. Bragdon, 107 F.3d 934, 949 (1st Cir.), cert. granted, 118 S. Ct. 554 (1997).
55. Parmet & Jackson, supra note 10, at 16-17.
56. See, e.g., Ray v. School Dist. of Desoto County, 666 F. Supp. 1524, 1528-29 (M.D. Fla. 1987).
57. See, e.g., Martinez v. School Bd. of Hillsborough County, 675 F. Supp. 1574, 1575, 1583 (M.D. Fla. 1987) (reviewing whether under Rehabilitation Act plaintiff infected with AIDS has right to education in least restrictive environment without examining whether she was disabled under Act); Ray, 666 F. Supp. at 1536 (concluding as matter of law under Rehabilitation Act that plaintiff schoolchildren infected with HIV should be admitted to normal integrated classroom without questioning whether plaintiffs were actually disabled under Act).
58. Parmet & Jackson, supra note 10, at 22.
59. 480 U.S. 273, 282 (1987) (examining whether elementary school teacher, who was fired after her third relapse of tuberculosis within two years, was handicapped within meaning of Rehabilitation Act).
60. Id. at 282 n.7.
61. Id. at 284.
62. Id. at 281-85.
63. Id. at 283.
64. Id. at 284.
65. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 171-72 (4th Cir. 1997).
66. Memorandum to Arthur B. Culvahouse Jr., Counsel to the President, Justice Department Application of Rehabilitation Act's Section 504 to HIV-Infected Persons, Daily Lab. Rep. (BNA) D-1 (Oct. 7, 1988), available in Westlaw, BNA-DLR Database, 195 DLR D-1, 1988 [hereinafter Culvahouse Memorandum].
67. Id.
68. Id.
69. Id.
70. Id. This appears to constitute the first suggestion that procreation and sexual relations are major life activities under disability laws as applied to asymptomatic HIV-positive persons. This approach has been adopted by some courts to find asymptomatic HIV-positive individuals are disabled within the meaning of the ADA. See, e.g., Abbott v. Bragdon, 107 F.3d 934 (1st Cir.), cert. granted, 118 S. Ct. 554 (1997).
71. Culvahouse Memorandum, supra note 65.
72. Id.
73. Arline is not necessarily controlling because: (1) the Court specifically declined to answer whether a contagious disease such as AIDS is a disability; and (2) the Court's discussion of the "regarded as" portion of the disability definition was technically dicta and therefore not binding on lower courts. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 281-82 n.7 (1987). Therefore, while the lower courts sometimes acknowledge the discussion of this issue in Arline, they do not necessarily follow the U.S. Supreme Court's reasoning as applied to asymptomatic HIV-infected plaintiffs. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 173 (4th Cir. 1997) (finding no genuine issue of material fact concerning perception of plaintiff's HIV infection, but acknowledging Arline's conclusion that others' negative reactions could substantially limit ability to work).
74. A number of courts have concluded that reproduction is a major life activity. See, e.g., Abbott, 107 F.3d at 939; Bielicki v. City of Chicago, No. 97 C 1471, 1997 WL 260595, at *3 (N.D. Ill. May 8, 1997); Hernandez v. Prudential Ins. Co. of Am., 977 F. Supp. 1160, 1164 (M.D. Fla. 1997); Anderson v. Gus Mayer Boston Store of Del., 924 F. Supp. 763, 774-75 (E.D. Tex. 1996); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1404-05 (N.D. Ill. 1996); Erickson v. Board of Governors of State Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995); Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1318-20 (E.D. Pa. 1994); Doe v. District of Columbia, 796 F. Supp. 559, 568 (D.D.C. 1992); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440, 444-45 (N.D. Ill. 1988). Others courts have held that reproduction does not constitute a major life activity. See, e.g., Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996); Cortes v. McDonald's Corp., 955 F. Supp. 541, 547 (E.D.N.C. 1996); Farmer v. National City Corp., No. C-2-94-966, 1996 WL 887478, at *6 (S.D. Ohio Apr. 5, 1996); Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995), aff'd, 79 F.3d 1143 (5th Cir. 1996).
75. See supra text accompanying note 69.
76. Compare Abbott, 107 F.3d at 949 (holding that asymptomatic woman was disabled), Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994), Hernandez, 977 F. Supp. at 1163, United States v. Morvant, 898 F. Supp. 1157, 1161 (E.D. La. 1995), Kohn Nast & Graf, 862 F. Supp. 1310, 1321, and Howe v. Hull, 873 F. Supp. 72, 78 (N.D. Ohio 1994), with Runnebaum, 123 F.3d at 169-70 (finding that asymptomatic individuals infected with HIV are not disabled under ADA), Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59-60 (4th Cir. 1995), and Cortes, 955 F. Supp. at 547.
77. Gates, 39 F.3d at 1446.
78. Id. at 1444-45.
79. Id. at 1446 (noting that because Rehabilitation Act and ADA have identical disability definitions, ADA regulations are relevant for interpreting Rehabilitation Act); see 28 C.F.R. § 35.104(1)(ii) (1997); see also supra note 28 and accompanying text.
80. Gates, 39 F.3d at 1446. The court did not clarify which prong of the disability definition the plaintiff is covered by, and therefore did not discuss what major life activity may be affected by asymptomatic HIV, nor whether the plaintiff was regarded as impaired. The court did, however, note that HIV, whether symptomatic or asymptomatic, penetrates the chromosomes of human cells so that they cannot combat infections. Id. (citing Chalk v. United States Dist. Court, 840 F.2d 701, 706 (9th Cir. 1988)).
81. Abbott, 107 F.3d at 949.
82. Id. at 937.
83. Id. at 939.
84. Id. at 939-42.
85. Id. at 939, 941.
86. Id. at 941.
87. Id. at 940-41. The court did not address other problems with reproduction as a major life activity, see infra Part III.A.2, but did note that "the question is very close" of whether reproduction is a major life activity. Abbott, 107 F.3d at 941.
88. Abbott, 107 F.3d at 942.
89. Id. at 949.
90. Id.
91. Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 55 (4th Cir. 1995).
92. Id. at 57. The plaintiff relied on § 12112(b)(4) of the ADA, which prohibits employers from taking adverse employment actions "because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4) (1994).
93. Ennis, 53 F.3d at 60.
94. Id. Note, however, that for the purposes of the case, the court assumed that the boy was disabled because the record may not have been fully developed as to whether there were any limitations of the boy's major life activities or perceptions of any such limitation. Id.
95. Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 161 (4th Cir. 1997).
96. Id. at 163.
97. Id. at 167 (analyzing 42 U.S.C. § 12102(2)(A) (1994)).
98. Id. at 168-69 (citing Webster's Ninth New Collegiate Dictionary 603 (1986) (defining "impairment" as to "make worse by or as if by diminishing in some material respect")).
99. Id. at 168. The court also pointed out that the committee reports do not distinguish between asymptomatic HIV infection and symptomatic conditions, and therefore the committee reports' indication that HIV-infected individuals are covered by the ADA does not apply to asymptomatic HIV-infected persons. Id. at 169.
100. Id. at 171-72.
101. Id. at 172.
102. Id.
103. Id.
104. Id. (analyzing 42 U.S.C. § 12102(2)(C) (1994)).
105. Id.
106. Id.
107. Id. at 174.
108. Id. at 176 (Michael, J., dissenting) (contesting majority's rejection of case-by-case contemplation of whether individual is disabled).
109. Id. at 180 (Michael, J., dissenting).
110. Id. at 183 (Michael, J., dissenting).
111. Id. at 184 (Michael, J., dissenting).
112. Id. at 186, 188 (Michael, J., dissenting) (stressing fact that plaintiff presented evidence that created issue of material fact as to whether plaintiff was "regarded as" being disabled).
113. See Abbott v. Bragdon, 107 F.3d 934, 942 (1st Cir.), cert. granted, 118 S. Ct. 554 (1997).
114. See Runnebaum, 123 F.3d at 168, 172; Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995).
115. 42 U.S.C. § 12102(2)(A) (1994).
116. See 42 U.S.C. § 12102(2)(A).
117. 29 C.F.R. § 1630.2(h)(1) (1997); see also discussion supra Part I.C.1.
118. 28 C.F.R. § 35.104(1)(ii) (1997); see also discussion supra Part I.C.2.
119. Runnebaum, 123 F.3d at 180 (Michael, J., dissenting); see also Gorman, supra note 3, at 64; Christine Gorman, The Exorcists: Applying a Potent Combination of New Treatments, Medical Researchers Are Determined to Expel the Terrible Specter of AIDS as an Invincible Disease, Time, Fall 1996 (Special Edition), at 64, 65 ("The big fight occurs in the harder-to-study lymph nodes, where day after day, year after year the body battles the virus to a standstill before finally exhausting its immunological reserves.").
120. Culvahouse Memorandum, supra note 65 (citation omitted).
121. Id.; see also Gorman, supra note 3, at 63 ("[T]he body and the virus engage in mortal combat from the beginning.").
122. Runnebaum, 123 F.3d at 180 (Michael, J., dissenting).
123. Id. at 183 (Michael, J., dissenting).
124. Id. at 168; see also discussion supra Part II.C.2.
125. 29 C.F.R. § 1630.2(h) (1997).
126. See supra notes 118-22 and accompanying text.
127. Runnebaum, 123 F.3d at 168 (citing Webster's Ninth New Collegiate Dictionary 603 (1986)).
128. Id. at 180 (Michael, J., dissenting).
129. 29 C.F.R. app. § 1630.2(j).
130. 28 C.F.R. § 35.104(1)(ii) (1997); 28 C.F.R. § 36.104.(1)(iii) (1997).
131. Culvahouse Memorandum, supra note 65.
132. 42 U.S.C. § 12102(2)(A) (1994).
133. 29 C.F.R. § 1630.2(i).
134. See, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 170 (4th Cir. 1997) (reviewing argument by amici that procreation and sexual relations are major life activities); Abbott v. Bragdon, 107 F.3d 934, 939 (1st Cir.), cert. granted, 118 S. Ct. 554 (1997). In addition, early proponents for protecting asymptomatic HIV or AIDS-infected individuals under the Rehabilitation Act argued that persons with AIDS are handicapped within the statutory definition because the ability to fight infection and preserve health is logically a major life function that is substantially limited. See, e.g., Arthur S. Leonard, Employment Discrimination Against Persons with AIDS, 10 U. Dayton L. Rev. 681, 691 (1985). Despite its intuitive logic, this approach has not been seized upon by courts dealing with the issue, perhaps because neither health nor immunological functions are listed in the relevant regulations as major life activities. See 29 C.F.R. § 1630.2(i).
135. See supra note 73.
136. See generally Rhonda K. Jenkins, Case Note, 20 S. Ill. U. L.J. 637, 647-49 (1996) (arguing that in applying procreation as major life activity, ambiguity between statutory standard and lay perception is significant concern to HIV-infected individuals).
137. Parmet & Jackson, supra note 10, at 34-35.
138. 42 U.S.C. § 12101(a)(7) (1994).
139. An oddity of the "actual disability" prong of the disability definition, as applied to asymptomatic HIV-infected individuals, is that discrimination against infected individuals is more likely to be subjectively based on an irrational fear of the infection rather than on some irrelevant perception that the infected individual cannot, for example, have children. This discordance suggests that the "regarded as" prong of the disability definition may be a more appropriate approach for covering asymptomatic HIV-infected individuals under the ADA. See discussion infra Part III.B.
140. See 42 U.S.C. § 12101(a)(7).
141. 107 F.3d 934 (1st Cir. 1997), cert. granted, 118 S. Ct. 554 (1997).
142. Id. at 942.
143. Id. at 941-42, 949.
144. Id. at 941.
145. 42 U.S.C. § 12102(2)(A) (1994); see also Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 167 (4th Cir. 1997); Byrne v. Board of Educ., 979 F.2d 560, 564 (7th Cir. 1992); Forrisi v. Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986). Although the appendix to the regulations finds that impairments such as HIV infection are inherently substantially limiting, it does not distinguish between asymptomatic and symptomatic HIV infection. 29 C.F.R. app. § 1630.2(j) (1997). It makes sense that symptomatic HIV infection poses a significant restriction on one's life activities. This logic, however, loses its luster as applied to asymptomatic HIV-infected individuals because the infection at this stage does not yet place any outward constraints on major life activities, much less significant limitations.
146. Centers for Disease Control and Prevention, CDC AIDS Information, Prevention of HIV Infection (visited Feb. 7, 1998) 〈http://www.cdc.gov/nchstp/hiv_aids/hivinfo/vfax/260040.htm〉.
147. See Catherine M. Wilfert, Beginning to Make Progress Against HIV, 335 New Eng. J. Med. 1678, 1678 (1996) (noting that research on mother-to-child transmission of HIV has advanced to where prevention of larger percentage of neonatal infection is now realistic possibility).
148. Katherine Luzuriaga et al., Combination Treatment with Zidovudine, Didanosine, and Nevirapine in Infants with Human Immunodeficiency Virus Type 1 Infection, 336 New Eng. J. Med. 1343 (1997).
149. See Abbott, 107 F.3d at 949.
150. Runnebaum, 123 F.3d at 172.
151. Id.; see also Culvahouse Memorandum, supra note 65. Note, however, that there may be a 25% risk of passing HIV on to one's children without AZT therapy and an 8% risk with such therapy. See Abbott, 107 F.3d at 942.
152. Runnebaum, 123 F.3d at 172.
153. 42 U.S.C. § 12102(2)(A) (1994).
154. See discussion supra Part I.B.
155. H.R. Rep. No. 101-485, pt. 2, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334; S. Rep. No. 101-116, at 22 (1990).
156. See supra note 31.
157. See H.R. Rep. No. 101-485, pt. 2, at 52, reprinted in 1990 U.S.C.C.A.N. at 334 (noting that HIV-infected persons are covered under "actual disability" prong because of substantial limitation to procreation and intimate sexual relationships); S. Rep. No. 101-116, at 22 (same); see also supra note 31.
158. See H.R. Rep. No. 101-485, pt. 2, at 52, reprinted in 1990 U.S.C.C.A.N. at 334; S. Rep. No. 101-116, at 22.
159. See discussion supra Part III.A.2. This disjunction does not alter the operation of the statute, because in theory an individual could still bring a claim under the "actual disability" prong of the ADA. 42 U.S.C. § 12102(2)(A) (1994). This construction seems ineffective, however, because it is not aligned with the most likely subjective reasons for a person to discriminate against an asymptomatic HIV-positive individual. See infra notes 180-81 and accompanying text.
160. See supra note 31.
161. Culvahouse Memorandum, supra note 65.
162. See 42 U.S.C. § 12101(a)(7) (1994).
163. See supra notes 29-31 and accompanying text.
164. 29 C.F.R. § 1630.2(l)(2) (1997); see also Arline v. School Bd. of Nassau County, 480 US. 273, 283 nn.9-10 (1987) (discussing Rehabilitation Act regulations).
165. Arline, 480 U.S. at 283 n.10.
166. Id.; see also 29 C.F.R. app. § 1630.2(l) ("[I]f an employer discriminates against such an individual because of the negative reactions of customers [to the cosmetic disfigurement], the employer would be regarding the individual as disabled and acting on the basis of that perceived disability.").
167. 29 C.F.R. § 1630.2(l)(2).
168. 29 C.F.R. app. § 1630.2(l).
169. Arline, 480 U.S. at 283.
170. Id. at 279 (citing Southeastern Community College v. Davis, 442 U.S. 397, 405-06 n.6 (1979)).
171. Id. at 284.
172. It has been suggested that Justice Brennan was thinking of HIV when he wrote this portion of the opinion, despite his disclaimer to the contrary. Parmet & Jackson, supra note 10, at 15.
173. Culvahouse Memorandum, supra note 65.
174. Arline, 480 U.S. at 284.
175. 42 U.S.C. § 12102(2)(C) (1994).
176. Compare, e.g., Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 172-74 (4th Cir. 1997) (finding that to qualify under "regarded as" prong, plaintiff must be regarded as having impairment that substantially limits major life activity), with 29 C.F.R. § 1630.2(l) (defining "regarded as" prong in three ways, including impairment that limits major life activities only as result of others' attitudes).
177. Runnebaum, 123 F.3d at 172.
178. Id.
179. Arline, 480 U.S. at 282-83 (interpreting identical Rehabilitation Act language).
180. 29 C.F.R. § 1630.2(l)(2).
181. See, e.g., Arline, 480 U.S. at 284.
182. See, e.g., Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995).
183. Parmet & Jackson, supra note 10, at 10-11, 42.
184. Id.
185. Id.