Amicus Curiae Brief — School Bd. of Nassau Cty. v. Arline
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No. 85-1277
IN THI
Supreme Court of the United States
OCTOBER TERM, 1985
-
SCHOOL BOARD OF NASSAU COUNTY, FLORIDA, et al..
Petitioners.
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUII
MOTION FOR PERMISSION TO FILE BRIEF AMICI
CURIAE AND BRIEF FOR THE AMERICAN PUBLIC
HEALTH ASSOCIATION, AMERICAN CIVIL LIBERTIES
UNION, AMERICAN NURSES ASSOCIATION, AND
NATIONAL ASSOCIATION OF PROTECTION AND
ADVOCACY SYSTEMS AS AMICI CURIAE
NAN D. HUNTER*
132 West 43rd Street
New York, N.Y. 10036
(212) 944-9800
HERBERT SEMMEI
36 West 44th Street
New York, N.Y. 10036
(212) 575-5138
Attorneys for Amici Curiae
*Counsel of Record
September, 1986
TABLE OF CONTENTS
TABLE OF CONTENT Sc cccccccccccccccccccccececs i
TABLE OF AUTHORITIES. cccccccccccccccccceccs Lii
MOTION FOR PERMISSION TO
FILE BRIEF AMICI CURIAE.... cece eee cc cves x
INTERESTS OF AMICI CURIAE........eeeeeeee e Xil
SUMMARY OF ARGUMENT .cccccccccccccccccccccces 1
ARGUMENT .cccccccccccccccccecceceesesescecens »
1. TUBERCULOSIS IS A DISEASE WHOSE
INFECTIOUSNESS ENDS PROMPTLY
WITH TREATMENT AND FOR WHICH A
TEST EXISTS TO DETERMINE
NON-INFECTIOUSNESS TO A
MEDICAL CERTAINTY .cccccccccccccccccccces >
2. COMMUNICABLE DISEASES ARE NOT
PER SE EXCLUDED FROM COVERAGE
PEE BUG E ROM DOR ec ccccccsccscececccccece 19
3. DISCRIMINATION BASED ON AN
INHERENT CHARACTERISTIC OF A
HANDICAP -- SUCH AS
COMMUNICABILITY -- IS
DISCRIMINATION BASED ON A
BANDECAP ccc ccccccccccccceseecccceccces 26
4. DURING PERIODS WHEN THEIR
TUBERCULOSIS IS
NON-COMMUNICABLE, PERSONS SUCH
AS RESPONDENT REMAIN
"HANDICAPPED" BECAUSE OF THEIR
HISTORY WITH THE THE DISEASE
AND THE PERCEPTION THAT THEY
ARE LMPALRED. cccccccccccccccccccceccces 35
A PERSON HANDICAPPED BY A
COMMUNICABLE DISEASE MAY BE
"OTHERWISE QUALIFIED" UNDER
SECTION 504 IF THERE IS NO
SIGNIFICANT RISK OF
TRANSMISSION OF THE DISEASE.....-+--
BECAUSE THE RECORD IS UNCLEAR
AS TO WHETHER THERE WAS
SUFFICIENT JUSTIFICATION FOR
TERMINATING RESPONDENT RATHER
THAN SUSPENDING HER DURING HER
CONTAGIOUS PERIOD, THE COURT OF
APPEALS CORRECTLY REMANDED FOR
A HEARING... cc cece eecrrereseseeeees
PROTECTION UNDER SECTION 504
AGAINST PERMANENT EXLUSION FROM
EMPLOYMENT OR OTHER FEDERALLY
FUNDED PROGRAMS OF PERSONS WHO
HAVE HAD A CONTAGIOUS DISEASE
WILL NOT INTERFERE WITH THE
ENFORCEMENT OF PUBLIC HEALTH
LAWS .ccccccccecesescsseeseeeeeeeeeee
ofia
TABLE OF AUTHORITIES
CASES
Alexander v. Choate, ~ U.S. - ,
SS Le EG.26-661 (19865). ccccccccccccccccces 24
Allen v. Heckler, 780 F.2d 64
i Ee eee eco cee seececcecéocoece 53
Arline v. School Board of Nassau
County, 772 F.2d 759
ES . ) e 20 ,42 ,53,58
Bentivegna v. U.S. Department
of Labor, 694 F.2d 619
tt TUE Sees eeseedsecceccccccces std, 40
Bogart v. White, No. 86-1444,
(Cir. Ct. Ind. April 10, 1986)............ 34
Consolidated Rail Corp. v. Darrone,
i ie Me CUED es cceccccceccecccccse 24,26
Costanzo v. Tillinghast,
I EEE 25
Doe v. Region 13 Mental Health-Mental
Retardation Commission,
704 F.2d 1402 (5th Cir.), reh'g
denied 709 F.2d 712
i occ ccc ce eacccce 35,49 ,61 ,62
Doe v. New York University,
666 F.2d 761
Se SUES Da ccccccccccecs 29 ,40 ,44 ,49 61 ,62
Guardian's Association v. Civil Service
Comm'n, 463 U.S. 582 (1983)... ..ccccccccceldd
-ili-
In re District 27 Community School
Board v. Board of Education of City
of New York, 130 Misc. 2d 398
(N.Y. Sup.Ct. 1986). ccccccccccccccsscccces 34
Jacobson v. Massachusetts,
197 U.Be 19 CUPOS) ccccccccccvcccsccscscseses 61
Kampmeier v. Nyquist,
553 F.2d 296 (2d Cir. 197] )wcccccccceveees 49
Mantolete v. Bolger, 76/7 F.2d
1416 (9th Cir. 1985) wccccccee 25,45,46,61 ,62
New York Assn. for Retarded
Children v. Carey, 612 F.2d
Bee tae Ges TErerse6 664 seee on 25,43 ,44,47 ,58
Pushkin v. Regents of the University
of Colorado, 658 F.2d 1392
(TOGh Cir. 19S1 pi cccccccccccccesceccscecs 25,30
Southeastern Community College v.
Davis, 442 U.S. 397 (1979). ccccccces 40,49 61
Strathie v. Department of
Transportation, 716 F.2d 22/7
(36 Cir. 1963) ccocccecceccecess 31,46 ,58,61 ,62
Stutts v. Freeman, 694 F.2d 666
(TTth Cir. 19S) ceccccccevcccccescvcooces 25
Sure-Tan v. NLRB, 467 U.S. 883 (1984)..... 25
Taggart v. Weinaker's, Inc.,
TOF BU.B. FAD CUPFedeccocccccecececeseceséos 42
Treadwell v. Alexander,
702 F.2d 973 Clith Cir. 19S3)cccccecccaces 25
U.S. v. Rutherford,
42 U.8. BOO CUFF cccccecccccccececoceceos 25
-iv-
Wainwright v. City of New Orleans,
See ee ee: Ce 6 666 6600640864664 6 eke OR 42
Zemel v. Rusk, 381 U.S. 1 (1965)... cece 7
STATUTES AND REGULATIONS
BEGGRG SESE. FIGS co se cee Gl dccccecéiccesece 59
Fla. Stat. Ann. §231.39 (West 1986)....... 53
Mit tedciddsadaseacewed 53
Po ae ee 1
a 60
- 6 Le | er 60
POE U ec csscctheuseeeend 60
N.Y.Comp. Codes R. & Regs tit. 10
oF 6.) a ee 17
ee er eee re 17
N.Y. Pub. Health Law §§2101-2105.......... 17
jo ne! eee 60
a Be ere 60
a a ee ee 60
© GebeGc BE reece? CMe éoccéekeckéuesar 10
8) ene 45
Oo a ne 19,2444
Par Ce ie 6 6'canesessieueeseens 36
og! 4 ay eee 37
29 U.S.C. §794....1,3,4,22,27,28,29, 30,31 39
42 U.S.C $254 dd) ccccccccccccsccccccceces 10,59
Es 4 6'h 66466669066 660600600068 10
ce Gel otts. Orne 666.606 ob kb6ee end ooueees 10
Ses 666060666 0600806 6888688 10
Des PLES 6660 66066668060008008 61
sc 6660060066%66060006060060088 17
- SR Te) LS > Peas 22,41
S Oh SS SER NENG Rid cckcsaecsesses 40
See GChmm, BP CIPS P lc ccescoocecone 23
MEDICAL AND MISCELLANEOUS AUTHORITIE
American Thoracic Society and
Centers for Disease Control,
Guidelines for Work for Patients with
Tuberculosis, 108 Am. Rev. Respiratory
DESGGSS 160 WIGLY, WEI erccccceceses 14,18,19,
American Thoracic Society, and
Centers for Disease Control,
Control of Tuberculosis,
128 Am. Rev. Respiratory Disease
SPD CRMs THES) cc cecceseeccsesecececocens 8.14
Burris, S., Fear Itself: AIDS, Herpes
and Public Health Decisions,
3 Yale Law and Policy Rev. 479 (1985)..... 61
-vVi-
Centers for Disease Control,
Guidelines for Prevention of TB
Transmission in Hospitels, HHS
Publication No. (CDC) 82-8371 (1982)...... 14
Centers for Disease Control,
34 Morbidity and Mortality Weekly Report
TGS GRR, Fe VHP cecccecseccseseccceeoose 34
Centers for Disease Control,
Public Health Considerations of
Infectious Diseases in Child Day
Care Centers, 105 J. Pediatrics 683
(BOW. Weep cceccscees ceeanens 660eeeeoe* 18,19
Centers for Disease Control,
"Recommendations for Preventing
Transmission of Infection with Human
T-Lymphotropic Virus Type III
Lymphandenopathy-Associated Virus in the
Workplace," 34 Morbidity and Mortality Weekly
Report 681 (Nov. 15, 19ES)ccccccccccccess 51
Comstock, Livesay & Woolpert, The
Prognosis of a Positive Tuberculin
Reaction in Childhood and Adolescence,
99 Am. J. Epidemiology 131. ..cccccccccccece 9
Control of Communicable Diseases in Man
(BERGROGR, Gls. [FSP lccccceasesseessescoeceos 32
Dinman, The Loyalty of the Occupational
Physician, 54 Bull. N.Y. Acad. Med.
169 (197B) ccccccccccccccccccvcccceeccecees 50
Eckholm, "Genital Herpes is More
Common but the Alarm is Diminishing,"
New York Times, July 8, 1986 at C-1l....... 33
Farer, The Modern Approach to
Tuberculosis Management, J.
Respiratory Diseases 92 (Jan. 1980)....... 13
-vii-
Guinan, et al, Epidemiology of Genital Herpes
Simplex Virus Infection, 7 Epidemiology Rev.
TOD CUPS Dcccccccesesccesocenecceceeosoens 33
Glassroth, Robins & Snyder,
Tuberculosis in the 1980s, 302
New Engl. J. Med. 1441
Se i. Cah bs cendeuésueceoeencedes 8.9.13
Kovarsky and Hauck, Arbitration and the
Epileptic, Lab. L.J. 597
SP, SOT T Po 60 060666660600060600n008 50
Leff & Geppert, Public Health and
Preventive Aspects of Pulmonary
Tuberculosis, 139 Arch Intern
eR og ee ee 6,9,16
Lester, Treatment of Tuberculosis
in Pulmonary Diseases and
co RR ee 8
Nat'l Center for Health Statistics,
Tuberculin Skin Test Reaction Among Adults
25-74 Years, DHEW Publication No. (HRA)
pee ee ee SOS Pe deccabeseseved bev ewes 5
Pear, "U.S. Apologizes to AIDS
Researcher," New York Times,
Re Pe TT Te eee Te Tee 51
Perlez, "6 AIDS Children to Attend
Schools, City Officials Say," New York
Tames, Aus. 20, 1966 GC Be Belecccscccccer 35
Riley, The Changing Scene in
Tuberculosis, in Pulmonary Diseases
CE BDaOeee Clee) 6 obs ees ecec se cscese 72.3
-viii-
Senate Committee on Labor and Public
Welfare, Rehabilitation Acts Amendments
of 1974, Sen. Re. No. 93-1297, 93rd
Cong. 2d Sess., reprinted in 4 U.S.
Code & Administrative News
OSE CIP TE) ccccceccceesocececececceseoes 36 ,40
Summary of Report of Senate Comm. on
Labor and Public Welfare, 120 Cong. Rec.
30540 (Sept. 10, 197G) wc cccccccccccccccceecs 39
Tabershaw, "Whose Agent is the
Occupational Physician,” 30 Archives
Bnve"h Beeith 412 CiS7a)ccccccecccccceccse 50
Tuberculosis, United States Public
Health Service, Centers for
Disease Control, undated ........ Palatal lata
U.S. Justice Dept., Office of Legal
Counsel, Memorandum for Ronald E.
Robertson, General Counsel, Department
of Health and Human Services: Re:
Application of Section 504 of the
Rehabilitation Act to Persons with
AIDS, AIDS-related Complex, or
Infection with the AIDS Virus.......... PL
-~ix-
No. 85-1277
IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1985
SCHOOL BOARD OF NASSAU COUNTY, FLORIDA,
et al.
Petitioners
Vv.
GENE H. ARLINE,
Respondent.
On Writ Of Certiorari To The United States
Court Of Appeals for the Eleventh Circuit
MOTION FOR PERMISSION TO FILE BRIEF AMICI
CURIAE
The American Public Health Association,
the American Civil Liberties Union, the
American Nurses Association and the National
Association of Protection and Advocacy
Systems respectfully move this Court for
permission to file the accompanying brief
amici curiae in support of Respondent.
Consent was granted by both parties to the
filing of a brief by the ACLU. In a
subsequent request to add other parties,
Respondent consented but no response was
received from Petitioner. Leave of this
Court therefore is requested under Rule 36 of
this Court.
The interests of the amici are set forth
below. The accompanying brief addresses
issues of fact and law concerning both the
public health and the civil rights
ramifications of this case. Amici have
reason to believe that their brief will
supplement rather than reiterate the
arguments made by Respondent.
("APHA"),
The
largest
+
L
arr
pro
_+
+
ive
o
he
world W
r
APHA
reader
m1¢ »S
tists
erTs
INTERESTS
OF AMICI CURIAE
American Public
professional
fessionals
founded
Health Association
in 1872, is the oldest and
public health society in
, with a combined national an,
e membership of over 50,000 health
. The largest single component
members are officials and employees
11, state and ] il public health
, APHA members include physicians,
, nurses, social workers, health
, admi strators, and other health
oe
tr ss to advance and protect the
f the nerican people by promoting
e measures, including restrict
inicable diseases,
the i1ilability of health
l i safe ind he althf
environment, launching public health
education programs, and publishing numerous
materials reflecting developments in public
health. APHA publishes the definitive
compendium "Control of Communicable Diseases
in Man" (14th Ed. 1985, A.S. Benenson, Ed.).
,
American Civil Liberties Union
The American Civil Liberties Union
(ACLU) is a nation-wide, non-partisan
organization of more than 200,000 members
dedicated to defending the principles
embodied in the Bill of Rights. Since its
founding in 1920, it has participated in
thousands of cases involving questions of
constitutional and statutory law.
American Nurses Association,
The American Nurses Ass
ional oranization of profs
constituent state and territorial nurses
associations. Through its federation
members, ANA has a membership of 188,000
registered nurses.
One unique purpose of ANA is to shape
public policy about health care consonant
with the goals of nursing and public
health. The association is committed to the
protection of both the public health and the
individual rights of patients and nurses
within the health care system.
Nurses are the largest single group of
health care providers. They provide health
care for patients with communicable diseases
and other life-threatening ailments.
Accordingly, many nurses have been exposed to
and have contracted such infectious diseases
as tuberculosis, hepatitis and measles.
Nurses and the ANA thus have a vital interest
in an approach to Section 504 which
appropriately protects the public and
-xlv-
individuals in accordance with established
guidelines of the Centers for Disease Control
and professional organizations.
National Association of Protection and
Advocacy Systems
The National Association of Protection
and Advocacy Systems represents Governor-
designated Protection and Advocacy Systems
established pursuant to Section 113 of the
Developmentally Disabled Assistance and Bill
of Rights Act, 42 U.S.C. §6042, and Governor-
designated Client Assistant Projects
established pursuant to Section 112 of the
Rehabilitation Act of 1973, as amended, 29
U.S.C. $732. These agencies have the
statutory mandate to protect and advocate the
rights of developmentally disabled persons
and other handicapped persons. Both types of
agencies protect the rights of persons under
section 504 of the Rehabilitation Act,
including persons with common, communicable
diseases.
Respectfully submitted,
NAN D. HUNTER*
American Civil
Liberties Union
132 West 43rd Street
New York, N.Y. 10036
(212) 944-9800
HERBERT SEMMEL
$6 West 44th Street
New York, N.Y. 10036
(212) 575-5138
* Counsel of record
-XV1-
No. 85-1277
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1986
SCHOOL BOARD OF NASSAU COUNTY, FLORIDA,
et al.
Petitioners
Vv.
GENE H. ARLINE,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
BRIEF OF
THE AMERICAN PUBLIC HEALTH ASSOCIATION,
AMERICAN CIVIL LIBERTIES UNION,
AMERICAN NURSES ASSOCIATION,
AND
NATIONAL ASSOCIATION OF PROTECTION AND
ADVOCACY SYSTEMS
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
SUMM RY OF ARGUMENT
In Section 504 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. $794, Congress
prohibited employment discrimination by
federally funded agencies against handicapped
persons who were otherwise qualified to do
the job in question. When a court is
confronted by a case, such as this one, in
which the employer alleges that a firing is
justified because plaintiff's handicapping
condition is or has been or is thought to be
communicable, the proper inquiry is whether a
significant risk exists of endangerment to
others by transmission of the disease. To be
accurate and meaningful, this inquiry must be
tailored to each individual, his or her
specific condition, and the particular work
Situation. The structure of the analysis is
no different than when courts analyze whether
some other aspect of a handicap - such as a
lesser ability to see or hear or operate
equipment - poses a risk of danger to other
persons. Reliance on this standard protects
both public health and the rights of millions
of Americans who otherwise could be barred
from federal jobs and programs.
The medical facts about the condition at
issue in this case, tuberculosis, show that
its actively infectious period is short.
Widely available medical tests can easily and
accurately indicate when that period is
over. Medical authorities are unanimous that
once the risk of transmission has ended, the
tuberculosis patient can and should return to
work.
Thus there is no public health need for
the trial court's ruling excluding
communicable diseases per se from the scope
of Section 504, a ruling which has no basis
in statutory language, legislative history or
case law. Nor is the position advanced by
Petitioner and the Department of Justice
tenable, that firing Ms. Arline based on fear
of contagion was not a firing based on a
handicap. Communicability is an inherent
(although often dormant) characteristic of
tuberculosis and many other diseases. It
comprises an inseparable part of the
impairment, real or perceived, which flows
from having the handicap, and cannot be
equated to coincidental characteristics such
as height or weight. The Justice
Department's theory that nothing more than a
fear of contagion, however irrational, can
preclude action under Section 504 is a
flagrant misreading of the Act and a
violation of its core purpose -- to prohibit
medically unjustified discrimination against
handicapped persons.
Promotion of public health concerns is
aided, not impeded, by an individualized
determination of whether persons with
communicable conditions are qualified to
work. Protecting affected workers from loss
of employment encourages immediate reporting
of symptoms and quick treatment, the most
effective method of preventing transmission
of tuberculosis. Section 504, properly
interpreted, poses no threat to public health
systems based on reporting cases of disease
and isolating patients when medically
necessary.
ARGUMENT
1. TUBERCULOSIS IS A DISEASE WHOSE
INFECTIOUSNESS ENDS PROMPTLY WITH
TREATMENT AND FOR WHICH A TEST
EXISTS TO DETERMINE NON-
INFECTIOUSNESS TO A MEDICAL
CERTAINTY.
In the United States an estimated 15
million people have been infected by the germ
which causes tuberculosis._/
All of these people have the potential for
having the infection progress to disease and
1/ Tuberculosis (United States Public Health
Service, Centers for Disease Control, undated) at 2
The Health Examination Survey of the National Center
for Health Statisics found the prevelence of infected
adults (positive skin tests) was between 16.1% and
21.5% of persons aged 25-74. Nat'l Center for Health
Statistics, Tuberculin Skin Test Reaction Among Adults
25-74 Years, DHEW Publication No. (HRA) 77-1649 at 5-6
(1977). Applying these percentages, the numbers of
infected American adults range from 38 ,640,00 to
51,600,000.
thereby become communicable, but the actual
occurrence of the disease and its
transmission is low. Leff & Geppert, Public
Health and Preventive Aspects of Pulmonary
Tuberculosis, 139 Arch Intern Med 1405 (Dec.
1979). In 1978, there were 28,521 reported
cases of tuberculosis; unpublished data of
the Centers for Disease Control (CDC) of the
United States Public Health Service show a
decline to 22,201 reported cases in 1985.
CDC offers the following summary of
tuberculosis:
A person with tuberculosis coughs or
sneezes into the air thousands of tiny,
moist droplets which may contain one or
two tubercle bacilli. These droplets dry
out and become small flecks, called
“droplet nuclei," which are light enough
to remain floating in the air.
The typical setting for infection is
a closed room with poor ventilation. If
the germs float out into the sunlight,
they are quickly killed. In a closed
room, another person can breathe in these
tiny droplet nuclei. But the body has
many natural traps which catch such
foreign elements. To infect a person, a
droplet nucleus must ride the air deep
into the lungs without being stopped.
There it becomes imbedded and the germ
begins to multiply very slowly.
Germs such as those causing
tonsillitis multiply in a matter of
minutes. The TB germ takes about 18 to
24 hours to reproduce itself just once.
But a tonsillitis infection lasts only a
few days, whereas tuberculosis infection
can last for the remainder of a person's
life.
Though tubercle bacilli begin to
muliply and spread, the body sets up a
defense. Usually the defense is
sufficient to stop the growth of the
germs and further progression of the
disease is halted for the rest of the
person's life. This is possible because
the germ will hibernate without ever
causing disease, and the damage done
seldom has any effect on the person's
physical well-being.
Sometimes, though, disease develops
soon after a person becomes infected.
This does not occur often, so the
greatest danger is the long-term threat
of tuberculosis infection. Infection
from years earlier may progress to
disease during periods of stress caused
by other illnesses or physical or
emotional hardship, but often for no
apparent reason. When the disease
develops, the infection can be spread to
others.
Tuberculosis, supra, n. 1 at 2-3.
Symptoms of tuberculosis which usually
appear first are loss of weight and strength,
fatigue, irregular appetite and low-grade
fever. As the disease progresses and becomes
communicable, cough, thick mucus brought up
from the lungs or blood-streaked sputum may
develop, and chest pains and breathing
difficulties may cccur. Id. Untreated, the
disease may become debilitating, but with
treatment, over ninety percent of patients
are relieved from symptoms and become non-
communicable within days or weeks. American
Thoracic Society, and Centers for Disease
Control, Control of Tuberculosis, 128 Am.
Rev. Respiratory Disease, 336, 340 (Aug.
1983); Lester, Treatment of Tuberculosis, in
Pulmonary Diseases and Disorders, 1306-07
(1980). Eight-and-one-half percent of
persons with the disease are drug resistant
to some degree, although varying the
components of the chemotherapy often results
in cure. Glassroth, Robins & Snyder,
Tuberculosis in the 1980s, 302 New Engl. J.
Med. 1441 1445 (June 26, 1980).
Approximately 3000 people died from
tuberculosis in the United States in 19/7/.
Id. at 1441.
Tuberculosis is not a highly infectious
disease and transmission usually requires
fairly close, frequent or prolonged
exposure. Leff & Geppert, supra, at 140)5-
06. The best method to break the chain of
transmission is decontamination through
proper ventilation, often an open window.
Although infants are more susceptible to
tuberculosis, among children 5 to 13 years
old the incidence of the disease is no
greater than the population as a whole.
of a Positive Tuberculin Reaction in
Childhood and Adolescence, 99 Am. J.
ALIC nea
es ¢ press] Ire
t wee l Lé€ A
Stage r 1 GLISEease
+2 oe . $2504 WNn1C
seneral to isolate
States “reasonably
with a communicable disease in a communicable
steeae.” 42 §.8.¢C.
> cam
5 oa £
: +
A 4 ¢€ wt e l
. . " .* mY
. : A c . iS A
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y ro - +
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§2
64(d). emphasis
added) The regulations of the Surgeon
General are to like
§§1240.40, 1240.50.
Immigration and Naturalization Act
e
szect. 2: CoP R.
Similarly, the
ic
for exclusion of aliens "who are affected
with any "dangerous contagious disease.,'
U.S.C. $1182(a) (6).
The Public Health
’
= The only physician whose testimony is in the
record appeared to believe that elementary school
children are more susceptible to tuberculosis than
older children and adults, a position not supported by
the medical research.
10
provides
8
Service regulations applicable
immigration laws define "dangerous,
ntagious disease’ as including
iberculosis, active." 42 C.F.R. $344.
References to public health measures in
riefs supporting Petitioner fail to make the
jistinction between infection and a disease
in a communicable stage. All fifteen million
or more "infected" Americans are potential
future communicators but cannot communicate
tuberculosis until they are actually
afflicted with the disease itself, that is,
develop active illness. As the CDC states,
"lwlhen disease develops, the infection can
‘
be spread to others." Tuberculosis, supra n.
—_—— SE
at 3. The disease and its infectiousness
are inseparable; the basic medical facts thus
reject the attempt of Petitioner and the
Department of Justice to separate them. See
The advent of effective drug therapy in
the 1940s and 1950s has dramatically
shortened the length of the active tubercular
disease and hence its period of
communication. A leading text notes:
The clinical course of tuberculosis
has been transformed from that of a
lingering disease, often pursuing a
downhill course, to that of a curable
disease whose symptoms rapidly
disappear. With the decline in
infectiousness for others, isolation
procedures can be eased. So dominant is
the chemotherapeutic effect that bed rest
can be dispensed with and, in many cases,
full activity resumed in a few weeks.
For the tuberculosis patient, the change
from prolonged isolation in a sanitarium
with guarded prognosis to relatively
normal life with good prognosis is
nothing short of miraculous.
Riley, The Changing Scene in Tuberculosis, in
Pulmonary Diseases and Disorders, 1229
(1980).
In fact, TB sanitariums have virtually
disappeared. As the CDC concludes,
“[p]lersons with TB disease can live and work
productively and can be cured by taking their
medicine as prescribed." Tuberculosis, supra
2.1 at 3.
The other major factor with respect to
control of contagiousness of tuberculosis is
the development of two tests which can
determine when a patient is no longer
infectious -- the sputum smear and the sputum
culture.
Microscopic examination of a sputum
smear is regularly used to determine
infectiousness. Glassroth et al., supra, at
1443. The sputum smear can be examined
immediately so that no delay is necessary.
Id.; Farer, The Modern Approach to
Tuberculosis Management, in J. Respiratory
Diseases 92 (Jan. 1980). The American
Thoracic Society, the professional medical
society for pulmonary disease, and CDC have
established criteria for when an otherwise
healthy patient with tuberculosis may return
to usual activities such as work or school.
These criteria provide that a return is
appropriate when "adequate treatment has been
initiated and the sputum is free of bacilli
-
or the number of bacilli present in sputum
smears is declining.” American Thoracic
Society and Centers for Disease Control,
Guidelines for Work for Patients with
Tuberculosis, 108 Am. Rev. Respiratory
Disease 160 (July 1973). CDC standards
provide that when three consecutive [smear]
specimens are negative, the patient may be
considered a “non-transmitter."” Centers for
Disease Control, Guidelines for Prevention of
TB Transmission in Hospitals, HHS Publication
No. (CDC) 82-8371 at 5 (1982).
The other test which definitively
determines non-infectiousness is based on a
culture study of specimens of the patient's
sputum; a negative culture indicates the
absence of active disease and hence the
patient is non-communicable. Ninety percent
of patients are culture negative within
ninety days of treatment. Amer. Thoracic
Society, Control of Tuberculosis, supra at
340; Lester, supra, at 1306-07.2/ A culture
test may require four to six weeks before
results are available so that complete
verification of non-communicablity entails a
waiting period. However, it has long been
recognized "that patients on effective
chemotherapy lose their infectiousness for
others long before the sputum culture is
negative." Riley, supra.
What emerges from an understanding of
the contagiousness of tuberculosis is that
the true danger lies in the person who has
not received treatment, and is not isolated
(where necessary) for the short period of
time before the disease responds to
chemotherapy and is no longer contagious.
Studies have demonstrated that once treatment
begins, there is no difference in the rate of
3/ Respondent tested positive on a culture in 19/79
and was negative in 1981. J.A. 19-20. The Joint
Appendix does not indicate whether there were any
tests in between these two or the results.
15
infection of family members of tuberculosis
patients treated at home as compared to those
treated in a hospital. Leff & Geppert,
supra, at 1406. "It was concluded that
tuberculosis infection was acquired prior to
the initiation of therapy in the index cases
and that once therapy was initiated there was
no appreciable risk of new contacts acquiring
infection from the index case even during the
first few days of therapy." Id.
The dangerous carrier is someone who has
the symptoms, conceals them and delays
seeking medical care because of the fear of
adverse consquences, such as a loss of
employment. Once medical care is sought, the
danger of infection is removed by the
provision of chemotherapy (and a short period
of isolation, in a minority of cases, if
necessary). Removing the fear of permanent
16
job loss encourages prompt treatment .4/
Thus, protection of the long range employment
rights of tuberculosis patients decreases the
possibility of infecting others and advances
public health protection.
Medical opinion is unanimous that the
public is protected from transmission of
tuberculosis by treatment of the patient,
and that isolation is necessary only in
limited cases, usually for short time
periods. The Guidelines for Work for
Patients with Tuberculesis of the American
Thoracic Society and CDC provide that
patients with all forms of tuberculosis
should be encouraged to continue with or to
tuberculosis, a patient cannot seek treatment without
his/her condition becoming known to public
authorities, who are usually charged with the
responsiblity for taking action to prevent
communication. See e.g., Fla. Stat. Amn. $381.23
(1986); 10 NYCRR §§2.6(c), 2.17, and N.Y. Public
Health Law §§2101-2105.
1 7
return to their previous activities as soon
as they are physically able." American
Thoracic Society, etc., Guidelines, supra, at
160. "Criteria for return to work should
always be individualized." Id. The
strongest evidence that tuberculosis does not
warrant the permanent exclusion of teachers
from employment in schools is found in the
report of the Child Day Care Infectious
Disease Study Group of the Centers for
Disease Control. Public Health
Considerations of Infectious Diseases in
Child Day Care Centers, 105 J. Pediatrics 683
(Nov. 1984). Even though the pre-school
population of day care centers is the most
susceptible to the disease, persons with
active tuberculosis may resume activities at
these centers when health officials state
that the patient is no longer contagious.
Id. at 693. Even persons who test positive
for tuberculosis infection in routine
18
screening tests may continue to be employed
in a day care center, although preventive
chemotherapy may be appropriate. Id.; see
also American Thoracic Society, etc.,
Guidelines, supra at 160.
The medical facts about tuberculosis
thus demonstrate that public health concerns
are best served by early detection,
appropriate treatment and follow-up testing
to ascertain when the stage of infectivity
has passed. Typical cases require that the
patient be excluded from normal interactive
situations such as work cr school for only
brief periods of time.
2. COMMUNICABLE DISEASES ARE NOT PER
SE EXCLUDED FROM COVERAGE UNDER ©
SECTION 504.
The threshold legal question in this
case is whether a disabling condition which
would otherwise fall within the statutory
definition in 29 U.S.C. $/706(/7)(B) (Supp. V
1982) must be excluded per se from the scope
of the Act if that condition is ever
communicable. The District Court concluded
that Respondent suffers a handicap but,
based solely on speculation, held that
contagious diseases are not handicaps within
. - _ . . q » _
the meaning of Section 504.= The Court f
le - - ses - eg = A A 1 2 C A) 7
Appeals correctly reversed. Ariine Ve. SCNOOL
= - ; ¢ a7 - nas Q see . 7 2 } > ) 7 7
Board of Nassau County, J2 F.2d 759, 764
(11th Cir. 1985). Although this Court
accepted review of the first question
- «4... 2
x Ruling from the bench, the trial court stated:
,
[T]he Court hereby finds that [Ms. Arline] is
not such a handicapped person. No question
that she suffers a handicap and it is most
unfortunate that she suffers or did suffer
from this particular infectious tuberculosis,
but it's difficult for this Court to conceive
that Congress intended contagious diseases to
be included within the definition of a
handicapped person as that act has been
implemented and decided by the various
courts. I'm aware that the courts have held
that alcoholism, cancer, blindness, various
other things, have been determined to be
handicapped persons, but it’s just the
Court's opinion that an infectious disease
such as the plaintiff in this case had, in my
opinion, does not fall within that
handicapped definition.
Petition for Certiorari, App. C-2.
presented both Petitioner and amicus the
Department of Justice have abandoned defense
f the per se exclusion of communicable
basis of the District
urt s opinion.— However, this Court
or te certiorari nm that question and it
Y ¢ 1i1NsS r the Ise
Petitioners abandoned the District
urt s rationale for good reason. Nothing
in the language or legislative history of the
Act suggests that communicability alone
negates its applicability. Questions about
possible risk to others which are raised by
the nature of the disability are properly
resolved, not by a tortured interpretation of
the Act's definition, but by a reasoned
j
"An individual who is disabled with an infectious,
contagious disease surely may be a ‘handicapped
individual’ within the meaning of the Rehabilitation
Act." Brief of Department of Justice. Petitioner now
argues not that the definition be interpreted to
exclude all those with contagious conditions, but only
"carrier[s] of a contagious disease who demonstrate[s]
no external manifestations of a physical or mental
impairment." Brief of Petitioner at 26.
fo
analysis of its "otherwise qualified"
provision. The object is to determine
whether the employment of someone with a
handicap such as Ms. Arline's creates an
appreciable risk to herself or others which
renders her unqualified to perform the
designated task. See infra at 42-58.
In 1977, the then Department of Health
Education and Welfare promulgated the major
contemporaneous regulations which construed
the definition of handicap in Section 504 to
include diseases as well as loss of limb or
function.l/ The Department specifically
aad The regulations provide:
"Physical or mental impairment" means (A) any
physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more of the following body systems: Neurological;
musculoskeletal; special sense organs;
respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-
urinary; hemic and lymphatic; skin; and endocrine;
o: (B) any mental or psychological disorder, such
as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning
disabilit’es." 45 CFR §84.3(j)(2).
Additionally, the Department's analysis of
the regulation stated:
(cont'd next page)
rejected suggestions received during the
public comment period to narrow the reach of
the definition of "handicapped person,”
stating:
The most common recommendation was
that only 'traditional’ handicaps be
covered. The Department continues to
believe, however, that it has no
flexibility within the statutory
definition to limit the term to persons
who have those severe, permanent, or
progressive conditions that are most
commonly regarded as handicapped.
45 C.F.R. 84 App. A at 310 (1985)
These agency regulations are, of course,
entitled to special deference in determining
the scope of coverage intended by Congress.
Congress amended the Act again in 1978; and,
as this court has noted, except for what was
"The definition does not set forth a list of
specific diseases and conditions that constitute
physical or mental impairments because of the
difficulty of ensuring the comprehensiveness of
any such list. The term includes, however, such
diseases and conditions as orthopedic, visual,
speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental
retardation, emotional illness, and... dmg
addiction and alcoholism." 45 C.F.R 84 App. A. at
310 (1985) (emphasis added).
23
specificaliy changed, these "1978 Amendments
to the Act were intended to codify the
regulations enforcing §504." Alexander v.
Choate, 0.8. , 83 L.Ed.2d 661 at 674
n. 24 (1985), citing Consolidated Rail Corp.
v. Darrone, 465 U.S. 624, 634 (1984). The
1978 amendments are particularly significant
with respect to arguments urging a limited
conception of the meaning of handicap.
Focussing carefully on the expansive approach
in the regulations, Congress specifically
altered the Act's definition to limit
coverage in cases involving alcoholism and
drug abuse. 29 U.S.C. §706 (7)(B)(Supp. V
1982). Congress could have, but specifically
did not, exclude diseases or categories of
diseases when it revised the definition in
1978,8/
87 Congress's failure to alter an administrative
agency's interpretation of a statute, particularly in
the face of a longstanding agency interpretation,
(cont'd next page)
Moreover, the agency's construction has
been validated by what amounts to a consensus
among the federal courts that diseases
properly fall within the scope of the Act.
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir.
1985) (epilepsy); Stutts v. Freeman, 694 F.2d
666 (11th Cir. 1983) (dyslexia); Treadwell v.
Alexander, 702 F.2d 973 (li1ith Cir. 1983)
(heart disease); Bentivegna v. U.S.
Department of Labor, 694 F.2d 619 (9th Cir.
1982) (diabetes); Pushkin v. Regents of the
University of Colorado, 658 F.2d 1392 (10th
Cir. 1981) (multiple sclerosis); and New York
Assn. for Retarded Children v. Carey, 612
r.2d 644 (2d Cir. 1979) (retarded children
with hepatitis-B viral infection). The
a a ee eee
creates a strong presumption in favor of the agency's
interpretation. Guardians Association v. Civil
Service Comm'n, 463 U.S. 582 (1983); Zemel v. Rusk,
381 U.S. 1 (1965); U.S. v. Rutherford, 442 U.S. 544
(1979); Costanzo v. Tillinghast, 287 U.S. 341
(1932). This presumption is further strengthened when
Congress has taken other action to amend the
statute. Sure-Tan v. NLRB, 467 U.S. 883 (1984).
diseases analyzed by the courts in these
cases include ones which ere communicable
(hepatitis-B virus) and degenerative
(multiple sclerosis).
Nothing in the legislative history
Supports the argument that Congress intended
a distinction among kinds of diseases --
whether based on communicability or any other
factors -- to silently alter the
definition. Cf. Consolidated Rail Corp v.
Dorrance, 465 U.S. 624, 631-4 (1984). Having
rewritten the definition to extend its reach,
having known of the enforcement agency
regulations, and then having carved out a
small exception to that scope, Congress
indicated with the greatest possible clarity
its endorsement of a broadly-defined
protected class.
Je DISCRIMINATION BASED ON AN INHERENT
CHARACTERISTIC OF A HANDICAP -- SUCH
AS COMMUNICABILITY -- IS
DISCRIMINATION BASED ON A HANDICAP.
Having abandoned the per se exclusion
26
argument, Petitioners and the Department of
Justice now seek instead to block the
applicability of Section 504 to certain
conditions by declaring one element of some
diseases, the possibility of communicability,
to be a separate characteristic for which
discriminatton is never unlawful.2/
They construct this theory by arguing that
if an employer shows fear of contagiousness
-- whether rational or irrational -- to be
the reason for exclusion, there can be no
claim of discrimination under Section 504.
Contagiousness, however, is an inherent
(although often dormant) characteristic of
Ed The fullest statement, and apparent origin, of
this position is found in the Justice Department's
policy opinion on the applicability of Section 504 to
AIDS and related conditions. U.S. Justice Department,
Office of Legal Counsel, Memorandum for Ronald E.
Robertson, General Counsel, Department of Health and
Human Services, Re: Application of Section 504 of the
Rehabilitation Act to Persons wth AIDS, AIDS-related
Complex, or Infection with the AIDS Virus, cited as
Justice Department AIDS Opinion. A copy has been
lodged with the Court by Petitioner.
tuberculosis and many other diseases. It is
therefore not only a semantic trick to try to
distinguish an inherent characteristic from
the disease of which it is a part but a clear
contravention of Congressional intent as
well.
The correct approach to Section 504 is
to recognize that Ms. Arline is a handicapped
person within the meaning of the Act and then
to inquire into the risks to others arising
from her handicap as part of the
determination whether she meets the
“otherwise qualified" requirement of the
Act. As shown below, such an analysis
avoids an all or nothing determination in
favor of a balanced approach which protects
the public from danger and the individual
from discrimination arising from baseless
fears and prejudices.
The inherent characteristics of a
disease comprise part of the impairment,
28
actual or perceived, associated with the
disease. If a condition satisfies the
statutory criteria for a handicap, the
application of Section 504 cannot be negated
by treating the disease's intrinsic elements
as coincidental physical descriptors, like
height or weight or eye color.
The courts which have interpreted
Section 504 have recognized that the inherent
characteristics of a physical or mental
condition are not separable from the
condition for the purpose of defining
"handicapped person." Such cases have
included situations in which some elements of
a handicap posed a threat of harm to
others. Both the Second Circuit and the
Fifth Circuit have held that plaintiffs met
the threshold burden of establishing handicap
when a mental illness rendered them incapable
of handling stressful situations, involving a
risk to co-workers and clientele. Doe v. New
York University, 666 F.2d 761, 775 (2d Cir.
1981); Doe v. Region 13 Mental Health-Mental
Retardation Commission, 704 F.2d 1402, 1408
rehearing en banc denied, 709 F.2d 712 (5th
Cir. 1983). Finding that a handicap existed
did not prevent these courts from examining
individual facts and concluding that the
persons were appropriately excluded because
the risk they posed to others was
significant. Compare Pushkin v. Regents of
the University of Colorado, 658 F.2d 1372,
1388 (10th Cir. 1981) in which the side
effects of drugs necessary for treating
multiple sclerosis were analyzed as aspects
of a handicap which could properly be weighed
in determining job fitness, but did not
render Section 504 inapplicable.
To adopt the Justice Department's theory
that a characteristic of a disease can be
disconnected from all other aspects of the
handicap would open the door to wholesale
evisceration of the Act. The Justice
Department theory is indistinguishable in its
structure from the argument that Section 504
covers discrimination based on blindness or
hearing impairment, but does not apply if the
defendant asserts a risk of danger to others
from the plaintiff's lesser ability to see or
hear. See, Strathie v. Department of
Transportation, 716 F.2d 227 (3d Cir.
1977). The correct inquiry is whether a
significant risk to other persons actually
exists. To accept the proposition that
merely showing a fear of danger precludes
review would nullify precisely the effect
which Congress intended the Act to have.
The practical implications of adopting
the Justice Department's proposal would be
enormous. Tens of millions of Americans
could be denied employment or participation
in federally funded programs because at one
time in their lives they had a communicable
disease. For example, a child who contracted
tuberculosis as an infant could be forever
barred from attending public school and
relegated to home instruction for the child's
entire schooling, even though the child was
cured, i.e., no longer had an active case,
and could not communicate tuberculosis to
others. Indeed, virtually the entire
population could be subject to irrational
discrimination based on medically
unsupportable allegations of "fear of
contagion" because almost all adults carry
the herpes virus that accompanies chicken pox
and which may manifest itself in adults in
the disease known as shingles. Control of
Communicable Diseases in Man (Benenson, ed.
1985) 70. Chicken pox presents a classic
example of viral latency in the ability of
the variella zoster virus to cause recurrent
clinical disease in the form of shingles
decades after infection. Another member of
this same virus
type 2,
disease of wide
Epidemiology of
family, herpes simplex virus
also causes a recurrent communicable
occurrence. Guinan et al,
Genital Herpes Simplex Virus
Infection, in 7
(1985). Recent
quarter or more
than 40 million
genital herpes.
More Common but
New York Times,
public reaction
disease led to
triggered by AIDS,
actions similar to
Epidemiology Rev. 140
studies indicate that a
of the adult population, more
people, are carriers of
Eckholm, "Genital Herpes is
the Alarm is Diminishing,’
July 8, 1986 at C-1. Initial
to knowledge about the
those
such as attempts to ban
children with herpes from schools.
?
A
preposterous.
Schoolchildren with AIDS
example of the wrongheadedness of the
Scientists describe the[se]
efforts ... as
[d.
present another
al l-or-
nothing approach of Petitioner and the
Department of
Justice.
The Centers for
33
Disease Control have stated that most HTLV-
[ILI/LAV-infected schoolchildren can be
allowed to attend school normally, after an
individualized determination of what would be
the best educational setting based on the
behavior, nevrologic development, and
physical condition of the child and the
expected type of interaction with others.
U.S. Centers for Disease Control, 34
Morbidity and Mortality Weekly—Report 106-109
(Aug. 30, 1985). Efforts to block school
attendance by these children have been
rejected by the courts. In re District 27
Community School Board v. Board of Education
of City of New York, 130 Misc. 2d 398 (N.Y.
Sup.Ct. 1986); Bogart v. White, No. 86-1444
(Clinton Cty, Ind., Circuit Ct., April 10,
1986). In New York City, where the CDC
recommendations for an individualized
examination of each case are followed, school
officials recently announced that six of the
13 children with AIDS were to be admitted to
the public schools. Per’ez, "6 AIDS Children
' wW
L
to Attend Schools, City Otficials Say,'
York Times, Aug. 26, 1986 at p. B-1.
The enormous number of people vulnerable
to discrimination based on erroneous fears of
contagion, by virtue of their simply being
carriers of a virus or other communicable
disease, demonstrates the need for statutory
protection. Section 504 was designed to
protect against such irrational and unfair
eae : aie | , : . ;
reatment by recipients of federal funding.
e DURING PERIOD» WHEN THEIR
TUBERCULOSIS IS NON-COMMUNICABLE,
PERSONS SUCH AS RESPONDENT REMAIN
HANDICAPPED BECAUSE OF THEIR HISTORY
WITH THE DISEASE AND THE PERCEPTION
THAT THEY ARE IMPAIRED.
Th Y 4 " : 2 . . Mw gr «a
The record indicates that Ms. Arline's
er losis was non- mmunicable b 1981
aT } 3] The record 1c ; cle i c
throughout the time at issue here because of
her past impairment and because of the
perception of impairment.
Congress could not have been more clear
ac
in its intention to extend Section 504's
coverage to someone in Ms. Arline's
position. 29 U.S.C. §$/707(7)(B)(ii) defines
handicapped persons to include those with a
record of impairment. It was added to the
statute in 1974 specifically "to make clearer
that the coverage of Sections 503 and 504
extends to persons who have recovered -- in
whole or in part -- from a handicapping
condition." Senate Com. on Labor and Public
Welfare, Rehabilitation Act Amendments of
1974, Sen. Rep. No. 93-1297, 93rd Cong. 2d
Sess., reprinted in 4 U.S. Code Cong. &
Admin. News 6373, 6389 (1974). Emphasis
added, ) Ms. Arline is just such a person.
Additionally, Ms. Arline meets the
statutory definition of handicapped person
because she "is regarded as having... an
impairment.” 29 U.S.C. $706(7)(B) (iii).
This case well illustrates that even when a
disease is in remission, a person can be
perceived as having a physiological disorder
which impairs the major life activities of
working and social interaction. When a
person is believed, ewen if wrongly, to be
substantially limited in her capacity for
social interaction, and hence work, because
of a handicapping disease (or an inherent
characteristic of such a disease), then she
is "handicapped" within the meaning of
subsection (B)(iii). Thus, the fear of
communicability, when it is associated with a
condition which otherwise meets the statutory
definition of handicap, far from being a
c
rationale for failing to apply Section 504,
is instead an indication that the Act must be
invoked. As noted above, finding that the
plaintiff's situation satisfies these
definitional requirements merely leads to
consideration under the "otherwise qualified"
test of what the medical ramifications of the
asserted contagiousness really are. But the
central point is nonetheless clear:
irrational employer attitudes toward
handicapped workers are precisely what
Section 504 is intended to protect against.
The Justice Department's argument that a
perception of contagiousness does not
substantially limit a major life activity
because contagion is not "disabling" is
therefore not only irrational on its face,
but represents a flagrant misreading of
Section 504. By attempting to Limit
"disabling" to "adverse effects on an
individual's ability to perform a physical or
mental task," brief of the Department of
Justice, the Justice Department attempts to
resurrect the narrow definition of handicap
in the 1973 version of the Act and ignores
the much broader scope of the current law,
which rejects such a task-based focus. The
Act originally defined “handicapped person"
based on handicaps to employment and capacity
to benefit from vocational services.
Rehabilitation Act of 1973, Pub. L. 93-112Z,
$7, 87 Stat. 359 (1973). Finding that
definition “far too narrow and constricting,"
Congress in 1974 substituted an entirely new
concept "“focus[ing] on substantial
limitations of an individual's functioning or
of one or more of an individual's major life
activities." Summary of Report of Senate
Comm. on Labor and Public Welfare, 120 Cong.
Rec. 30540 (Sept. 10, 1974).
Congress broadened the definition in
1974 to include "those persons whose mental
—_——— =
. [but whol may be subjected to
l :
discrimination on the basis of their being
regarded as handicapped." Senate Rep. 93-
1297 in 1974 U.S. Code & Admin. News at 6389-
6390 (emphasis added). As this Court has
recognized, a person described by this
provision "may have no actual incapacity at
all," Southeastern Community College v.
Davis, 442 U.S. 397, 405, n.6 (1979), yet
still be undeniably covered by the Act.
The inability to interact with others
can be the impairment caused by a handicap,
even when the handicap causes no impact on
the intellectual ability or physical strength
necessary for the job. This is often true of
emotional or mental illnesses, which are
See, e.g., Doe v. New
covered by the Act,
York University, 666 F.2d at 775. DHHS
regulations interpret Subsection (B)(iii) to
1f)
1Q/
include such situations, giving as one
19/45 C.F.R. 84.3(j) (2) (iv) provides:
"Is regarded as having an impairment" means
(i) has a physical or mental impairment that
cont'd next page)
40
example of a handicap, “cosmetic
disfigurement.” 45 C.F.R. 84.3(j)(2). The
curtailment of social interaction, because of
the attitudes of others, is precisely the
impairment caused by cosmetic
11/
disfigurement. lf a lawyer suffers severe
burns to the face but is perfectly capable of
doing legal research, writing briefs and
documents, and arguing in court, denial of
employment based on fears of public reaction
to the disfigurement would establish a prima
_———————
activities but is treated by a recipient as
constituting such a limitation; (ii) has
physical or mental impairment that
substantially limits its major life
activities only as a result of the attitudes
of others toward such impairment; or (111)
has none of the impairments defined in
paragraph (b)(1) of this section but is
treated by a recipient as having such an
11, impairment...." | |
!'/ The Justice Department weakly tries to explain
away the inclusion of this example in the DHHS
regulations by calling it "anomalous." The Department
tries to cloud the scope of handicap-based
discrimination covered by the Act by making irrelevant
comparisons to non-handicap-related conditions, but
the distinction is clear; cosmetic disfigurement is a
handicap even though common homeliness is not.
4]
facie case of discrimination based on
handicap. When a limitation on major life
activities flows directly from a physical or
mental impairment as defined by the Act,
section 504 is applicable whether the
limitation exists physiologically or is
created by the attitudes of others.
De A PERSON HANDICAPPED BY A
COMMUNICABLE DISEASE MAY BE
“OTHERWISE QUALIFIED" UNDER SECTION
504 IF THERE IS NO SIGNIFICANT RISK
OF TRANSMISSION OF THE DISEASE.
The Court of Appeals correctly remanded
this case to the trial court for "further
findings as to whether the risks of infection
M
precluded Ms. Arline from being otherwise
qualified’ for her job." Arline v. School
Board of Nassau County, 772 F.2d at 765.
This Court should affirm the order to remand
so that the lower court can ascertain the
exact nature of the risk posed by
19 |
M
Ms. Arline's health condition.<¢
Additionally, this Court should assist the
lower court by clarifying the standard by
which to evaluate the evidence presented.
The correct standard to apply was used
by the Second Circuit in a case involving the
risk of hepatitis-B transmission Dy or among
retarded children. In New York Assn. for
Retarded Childen v. Carey, 612 F.2d 644, 650
(2d Cir. 1979), the Court struck down a board
of education policy segregating those
retarded children who carried the hepatitis-5
virus on the ground that
the Board was unable to demonstrate that
the health hazard posed by the hepatitis-
BR carrier children was anything more than
a remote possiblity. There has never
been any definite proof that the disease
can be communicated by non-parenteral
routes such as saliva. Even assuming
12/ Alternatively, the Court could dismiss the writ of
certiorari on the second question presented as
improvidently granted, to allow development of the
record. See, e.g., Taggart Weinaker's, Inc., 39/7 U.S.
223 (1970); Wainwright v. City of New ‘Orleans, 392
U.S. 598 (1968) (Harlan, J. concurring). As discussed
below, p. 52-55, the record is unclear as to the
medical facts or the recommendation of the public
health official who reviewed Respondent's medical]
history.
that there were, the activities that
occur in classroom settings were not
shown to pose any significant risk that
the disease would be transmitted from one
child to another.
The standard of significant risk of
actual transmission, coupled with an
examination of the seriousness of the
disease, appropriately parallels the criteria
for determining if the “otherwise qualified"
requirement is met which have been developed
by the Courts of Appeals in other cases in
which risk of harm was an issue.—3/ In Doe v,
-_—-—-
13/ Such a standard also parallels the Act's criteria
for drug and alcohol abusers, who are protected
against employment discrimination unless they are
unable to perform the duties of the job because they
“would constitute a direct threat to property or the
safety of others." 29 U.S.C. §$706(7)(B) (emphasis
added . It is the standard used by the Department of
Health and Human Services, even after the Justice
Department issued its memorandum on AIDS, in finding
noncompliance with Section 504 by a hospital which
fired a health care worker. "[W]here the employee is
a health care worker with a transmissible disease, the
hospital's medical directors could, in consultation
with the employee's personal physician, make a
determination on an individual basis whether the
infected emplovee can adequately and safely perform
patient-care duties. The Office for Civil Rights
recognizes that in cases involving health care workers
who have such .iiseases the employer must be given the
(cont'd next page)
New York University, 666 F.2d 761 (2d Cir.
1981), the Court analyzed the claim of a
medical student with a history of mental
illness in terms of whether there was a
significant risk of . . . recurrence," i.e.
"a significant risk of harm to [herself] or
W
others," especially "[i]n view of the
seriousness of the harm inflicted in prior
episodes. 666 F.2d at 777. In Mantolete v.
Bolger, 767 F.2d 1416 (9th Cir. 1985),
involving a letter sorter machine operator
who had epilepsy, the Ninth Circuit used the
standard of whether "the applicant [is]
presently qualified to perform the essential
requirements of the job without a reasonable
necessary latitude to fully and fairly evaluate any
significant risks which may be posed by or to the
employee." Letter of Marie Chretien, Regional
Manager, Office of Civil Rights, August 5, 1986, Re:
Complaint No. 04-84-3096 (emphasis added). (A copy of
this letter has been lodged with the Court.) It is
also comparable to the Occupational Safety and Health
Administration Act standard, which requires workplaces
to be "free of recognized hazards that are causing or
likely to cause death or serious physical harm to
employees." 29 U.S.C. 654(a)(1).
45
probability of substantial injury to the
applicant or others." Id. at 1423. The
court specifically rejected a "mere ‘elevated
risk' standard [as] not sufficient to ensure
handicapped people's’ right to employment
which complements their abilities. " Id. at
1422 (citations omitted). In Strathie v.
Department of Transportation, 716 F.2d 227
(3d Cir. 1983), the Third Circuit ruled that
a school bus driver could not be dismissed
for needing a hearing aid because the state
failed to prove that use of such a device --
although not perfect in its avoidance of
impairment to hearing -- did not present "an
appreciable risk to the safety and control"
of children riding school busses. Id. at
These cases demonstrate that determining
significant risk is well within the capacity
of the courts.
(Tlhe courts are .. . assigned a
sensitive task, and that task is to
ensure that the established legal
standards -- constitutional and statutory
-- are followed by government agencies.
To permit the factual determinations of
these agencies to go unchallenged may be
to neglect this task, for the facts will
often be dispositive, and the question of
compliance with prevailing legal
standards will often be determined by the
manner in which the agency has found
these facts.
New York Association for Retarded Children v.
Carey, supra 612 F.2d at 648.
Moreover, legitimate public health interests
benefit when stereotypes, misinformation, and
inadequately-supported medical opinions are
not permitted to form the basis for
discriminatory acts.
The court's role and the standard
utilized in reviewing employment actions
under Section 504 should be the same whenever
endangerment is an issue, regardless of
whether the defendant alleges risk of
contagicusness; risk of harm to others caused
mental illness, or
by blindness, deafness
7
, :, C id 14/
other handicaps; or risk of future injury.—
All these claims require close analysis of
the facts as to the particular handicapped
person; the particular job duties and
environment; the specific nature, probability
and consequence of the risk; and the
likelihood of harm actually occurring.
Without the courts to perform this crucial
role, the intent of Congress to prevent
discriminatory employment policies toward
disabled persons capable of working will be
flouted, and public respect for serious,
medically justified public health concerns
will be diminished.
Under the standards developed by the
Courts of Appeals, employment or program
participation will not be appropriate in some
14/ The question is whether a plaintiff is qualified
at the time of the employer's action, not whether he
or she will be qualified at some future time. "Any
qualification based on the risk of future injury must
be examined with special care if the Rehabilitation
Act is not to be circumvented easily... .
[A]llowing remote concerns to legitimize
discrimination against the handicapped could vitiate
the effectiveness of section 504 of the Act.”
Bentivegna v. United States Department of Labor, 694
F.2d 619, 622-3 (9th Cir. 1982).
instances. See, e.g., Doe v. New York
University, supra; Doe v. Mental Health-
Mental Retardation Commision, 704 F.2d 1402
rehearing en banc denied /09 F.2d 712 (5th
Cir. 1983); Kampmeier v. Nyquist, 553 F.2d
296 (2d Cir. 19/77). The application of these
Standards leads to the same result which this
’ . af } 4 , , . .
ourt reached in Southeastern Community
7 \ - j ) | . ] 1 4
ollege V. Mavis, 44<z ~ 49 : 40 3 >, SF
T 4 tho | + . an = , ,
I é eTendan can rove tnat i SLENnILcri1< if
: . :
+ ' ; 4 7. hx . ™ ; .
I Lon nay I LS \ ist J he han 11 iT , the
- } " . - + Y ] - . }
¢ lalnctli ls not tnerwlse qualliried
,
y 1 ¢ cs Y¢ 1S¢ nat i ¢ Te. mod iT 5 | ‘Try eh rhne
; | Y y L-
erendant can remove tne risk,
Am 1 } hor 17 Yr ith ho - 7 +
eulpaé rISiLeSLi ari ct wii ( € » i i
¢~ } ‘ £ ] F " } - .
e oCtate Ol! 1lifornia and other stats Sy
» ‘ I~ 4 + ae | L. ? 7 — . ;
srie Poin il, that a plaintiff should not
| - ] ; ; + -r 4 + }
. , = T = 5 7 ¥
) ¢ yreciuaed rro redu LlnY 1e@ eviaqaence
_ & + ron = y rr > lo ft r) , a | 4 . , ‘a , 4
yT eq y Le CG lL ¢ lafg) S 1€ LSLOlUWak € ;
‘ - - 4 b + -} | + + }
1 € ULIS La inhY { | re Ut LS [ Was Jase
rrect informat r assumpt , +. «
Reliance on the advice of a physician cannot
alone determine that a plaintiff was not
otherwise qualified for a program. Many
corporations employ "company doctors" who are
not always in the position to be the most
objective decision maker; the decision to
exclude an applicant is generally the safer
one from the standpoint of the physician's
15/
self interest.— Moreover, physicians like
all humans, may err, witness the misstatement
by Dr. McEwen herein that children of
/ ,
elementary school age are more susceptible to
15/ In describing the probative value of the
testimony of a company doctor concerning the
employability of a person with epilepsy, Kovarasky and
Hauck state: "While the acceptance of this medical
testimony is proper and entitled to careful
evaluation, arbitrators are aware. or should be aware,
that company doctors testifying re expected to
display allegiance to the firm. Many company doctors
are unnecessarily conservative when evaluating
employees, choosing to err on the side of their
employers." Kovarsky and Hauck, Arbitation and the
Epileptic, Lab. L. J. 597, 602 (September, 19//). See
generally, Dinman, The Loyalty of the Occupational]
Physician, 54 Bull. N.Y. Acad. Med. 769 (1978);
Tabershaw, "Whose Agent is the Occupational
Physician," 30 Archives Envt'l Health 412 (1975).
tuberculosis than older children or adults a
position not generally accepted by research,
which finds no difference. See supra, p. 9.
Indeed, even lawyers make mistakes. The
>
Department of Justice recently cited
prominent research scientist in support
the statement that "there are sure t be
ases in the future of transmission of ft}
AIDS virus by casual contact. Justice
Jepartment Memorandum at 13. shortly
afterward, that scientist demanded and got
etter of apology from the Department, after
re-iterating that "casual transmission su
iS 1S L1IKeLV fC ( ur lm wor »] iCé secttl ~
will never se a significant ris t
Linfected co-workers.” Pear, "ee
An lovgizes t< AIDS Resear her New
fimes, July 23, 1986 » D2ZO, e
»o- Centers for Disease ntr ;
mendations for Preventing
Type II1/Lymphandenopathy-Associated Virus in
the Workplace," 34 Morbidity and Mortality
Weekly Report 681-695 (November 15, 1985).
6. BECAUSE THE RECORD IS UNCLEAR AS TO
WHETHER THERE WAS SUFFICIENT
JUSTIFICATION FOR TERMINATING
RESPONDENT RATHER THAN SUSPENDING
HER DURING HER CONTAGIOUSNES PERIOD,
THE COURT OF APPEALS CORRECTLY
REMANDED FOR A HEARING,
The Court of Appeals in this case was
correct in renianding to the District Court to
jletermine if the Respondent was "otherwise
tualified" for her position as teacher. A
suspension during the contagious period and
the period necessary to verify that there is
no longer any reasonable risk of contagion is
justified as necessary to protect others.
Removing an individual permanently from the
work force is almost always unwaranted by
scientific knowledge or public health
concerns. A period of leave is common in
’ 16/
school systems, which offer sabbaticals ,-%
sick leave, maternity leave, administrative
leaves, and regularly utilize substitute
teachers. State laws may mandate leaves for
teachers or grant discretion to the school
authorities with respect t leaves, and
leaves may be available a: f right under
collective bargaining agreements. Fla.
Stats. Ann. $231.39 (Supp. 1986).
In rare cases, there may be special
factors that might justify differential
treatment. See Allen v. Heckler, 7/80 F.2d
64,69-/71 (D.C.Cir. 1985). Whether Respondent
is such a case cannot be determined on this
record. As the Court of Appeals noted herein
//2 F.2d at 765), “the district court made
no findings resolving the numerous factual
lisputes" as to whether Respondent was
Itherwise qualified. The Court of Appeals
r ™ . P .
16 Florida law authorizes one vear sabbaticals.
Fla. Stats. Amn. $231.424 (Supp. 1986).
defined these issues as (1) the risks
entailed in retaining Arline in her
elementary school position; (2) risks in
teaching less susceptible individuals and (3)
e costs involved in accomodating Resnondent
1 new position.
The expert testimony in the case comes
soley from Dr. McEuen, the Assistant Director
f the Community Tuberculosis Control Service
1f the Florida Department of Health. She
testified that she was "fairly confident
that Respondent will not have another relapse
A. 31), that she was negative in her 19817
1lture two years after the positive tests
that led to her dismissal) and no positive
est was reported since. ir. McEuen also
ec},YT Tr ié¢ + -} af af tne time OT tri » | + e
3s Lity r ner intectiousness S
C é€ — > . ? >
t Cime, there are spe ]
P ; R « en mndent wh }
)4
require consideration, particularly the
recurrence of the disease three times in a
two year period. This may result either from
Respondent having a strain of tuberculosis
ranrnili ¢ “A 4 ff r7TaAR ta } .
baccilli which was resistant to he drugs
prescribed or from her failure CoO properly
follow the prescribed regimens. The record
is silent on this question. Lf the
recurrence was the resul 9f drug resistance,
the medically indicated course is to vary the
edication, and such a practice usually
results in a cure and the end f the
T’ ] ] , . ~ }
The | | — I ¢ LS aisSoO lm¢ t iT is | wine eT
+ Mail ’ | »uis + "OH OMT te ; va , rman ~ + - TY ira
. CEUeCr evel recommended De! ine! removai
le RB tk dR :
+ 2, . , ; + . , - sak ]
f Respondent as an elementary scho
; thor Cc} . + _+ f 7. ~- 1, ‘ a eho ] »4
eacner. one es l Led lal Woe! f Las
. : » +
lire wa eported OsS1ltive, wi f
- mar on, ; '
Vas repruary Oj 19 Y, ATi LT Was
‘ é af i ‘rT? ,?f that % Ne a a | af c ‘ ‘
{ le Ce f iraq grade 5 I ent ‘
(emphasis added. ) (J.A. 13, but see J.A.
15). She was primarily concerned about the
possibility of relapse, and was strongly
influenced by the fact that elementary school
students are with the same teacher in the
4
same classroom all day, whereas older
students and persons in adult education move
from classroom to classroom and have a lowe!
exposure to any one teacher. T.A. 16-19.
-
ndeed, Dr. McEuen appeared to regard
teaching older students as an acceptable risk
even during the contagious period. J.A. 16
, ,
1ithough the questions and answers were never
+
precise as to time frame. Peti
_ 74 ’ _ . _ « , 24 = 2a
followed a practice of allowing teachers not
+ £3 “ticil 2 | re
ertified at a particular grade level to
teach nevertheless. A. 56-57. hus, there
ic af least r) -4™m- £ -— sir jan ‘2D ~ i, .
i < A as . I Lina Lac ic ‘ VIideé a lat |
- . . 7 _ r . ; 7 . . ] } es } —_ |
easonadie ac comodat Lon could lave peen lade
consistent with the recommendatio of the
. } } }
€ l i exper rei1eaqa upon OD retictioner.
The determination of whether a person
who has, or may carry, a contagious disease
is otherwise qualified for a position or
program depends on individual factors,
rendering impossible a yes or no answer to
the second question certified by the Court.
Amici herein agree with the American Medical
Association that the appropriate factors are
a) the nature of the risk (Chow the disease
is transmitted), (b) the duration of the risk
how long is the carrier infectious?),
the severity of the risk (what is the
—)
7
89)
—
~—
on
+
~
—/
_
potential harm to third part
probabilities the disease will be transmitted
and will cause varying degrees of harm,
American Medical Association brief at 19.
-
a —
No findings were made in this case
rr
ese or any other criteria. A remand
Ts. ra r ‘oD ‘ (th eh > \Y oe) ‘ea ? ae ’ are tt to
iICCOrTaAancCe Wil I Lilt VVLIILVUI h c Ai
should determine "whether the defendant's
justifications reflect a well informed
judgment grounded in a careful and open-
minded weighing of the risks and
alternatives, or whether they are simply
conclusory statements that are being used to
justify reflexsive reactions grounds in
ignorance or capitulation to public
prejudice." 772 F.2d at 765. Accord:
Strathie v. Department of Transportation, 716
F.2d 227 (3d Cir. 1983); New York Ass'n. for
Retarded Children v. Carey, 612 F.2d 644 (2d
Cir. 1979).
ae PROTECTION UNDER SECTION 504 AGAINST
PERMANENT EXCLUSION FROM EMPLOYMENT
OR OTHER FEDERALLY FUNDED PROGRAMS
OF PERSONS WHO HAVE HAD A CONTAGIOUS
DISEASE WILL NOT INTERFERE WITH THE
ENFORCEMENT OF PUBLIC HEALTH LAWS.
The protection afforded by Section 504
to victims of communicable diseases does not
interfere in any way with the operation of
public health laws which are designed to
protect the public against the spread
53
infectious disease. These laws are well nigh
universal and are generally of two kinds --
reporting and isolation. Reporting statutes
in no way deny anyone participation in the
benefits of, or discriminate under, any
program or activity. They oniy require that
physicians, laboratories, and other specified
persons or institutions report identified
cases of communicable disease to public
authorities.
Statutes relating to isolation may be
general in nature, authorizi g isolation
durine communicable periods see e.g. 42
_——_——— — ee
U.S.C. $264(d), or they may relate to
specific activities and provide for exclusion
persons with communicable disease. State
laws applicable to education authorize
exclusion of students in general terms
. - ann . } ° 1 . PP 1
attendance of the child to be inimicable
1?
{ he welfare of other children uve A] ask 7 Stat
communicable disease, e.g., Wisc. Stat. Ann.
143.12), or to tuberculosis specifically,
e.g., Wisc. Stat. Ann. $143.06. Florida law
permits isolation of a person with "an active
case of tuberculosis.” Fla. Stat. Ann.
§§392.25, 392.26(2)(a) and (3)(a). These
tuberculosis-specific statutes may specify
that which is generally accepted in practice,
that the exclusion from school of a person
with tuberculosis applies only during the
contagious stage. See, e.g., the Wisconsin
statute requiring a physician's certificate
that the teacher is "free from tubercuvlosis
in a communicable form." Wis. Stat. Ann.
§143.16.
Section 504, properly applied, does not
invalidate or threaten the efficacy of these
laws. The courts have uniformly followed the
c
euidelines of the Equal Employment
Opportunity Commission regulation that to be
1 . we " 1 i:
otherwise Gqualified a handicapped
7 sr’ oO ,
Der sO}
must be able to
...-perform the essential functions of .
the position in question without
endangering the health and safety of
others.
29 C.F.R. $1613./02(f). See, e.g.,
Southeastern Community College v. Davis, 442
U.S. 397 (1979); Mantolete v. Bolger, /6/7
F.2d 1416 (9th Cir. 1985); Doe v. Region 13
Mental Health-Mental Retardation Commission,
/04 F.2d 1402 rehearing en banc denied, /09
F.2d 712 (5th Cir. 1983); Strathie v. Dept.
of Transportation, /16 F.2d 22/ (3d Cir.
1983); Doe v. New York University, 666 F.2d
J61 (2d Cir. 1981). Where there is a real
risk that the health and safety of others is
1ave had no trouble in
endangered, the courts
: } + . sah -_ h ~-h
upholding the action of public heal
officials. See e.g., Jacobson v.
Massachusetts, 197 U.S. 11 (1905); S. Burri
Fear Itself: AIDS, Herpes and Public Health
Decisions 3} Yale Law and Policy Rev. 4/79
1985). The careful balance betweer
protection of the public and the right of
handicapped individuals to be free of
irrational discrimination related to their
handicap is maintained by the requirement of
Section 504 that actions which deny
handicapped persons employment or
participation in federally funded programs
}
out of fear for the safety of others be based
on a proven likelihood of l
appreciable risk.
Transportation, /16 F.2d at 234 (appreciable
—_—— ht
risk to others); Mantolete v. Bolger, 76/7
eee SS
F.2d at 1, 4, 22 (reasonable probability of
substantial harm); Doe v. New York
Jniversity, 666 F.2¢ at 775-777 (reasonable
precautions or requirements; substantiality
Mental Retardation Commission, /04 F.2d at
1412 reasonable jiustification). Under this
; } 1 eamect mata —_——
standard the tuberculosis patient who is
ew.
employment or program participation for so
long as a real risk of casual transmission
exists, but no longer. Such a standard
satisfies both public health concerns and the
mandate of Section 504. Protecting the long-
2 4 } - —_ Ao "
range emplovment rights of persons with
ulosis wi!ll encourage prompt treatme!
CONCLUSION
For the foregoing reasons, this Court
should affirm the order of the Court of
Appeals and remand this case for further
factual findings based on the standard of
review discussed herein.
Respect fully submitted,
NAN D. HUNTER*
American Civil
Liberties Union
132 West 43rd Street
New York, N.Y. 10036
(212) 944-9800
HERBERT SEMMEL
36 West 44th Street
New York, N.Y. 10036
(212) 575-5138
ON THE BRIEF:
CHERYL RIESS, M.D.
* Counsel of record
September, 1986
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.