Amicus Curiae Brief — Bragdon v. Abbott

Supreme Goart, U.S,

Fiteb

q JAN 8 1998

No. 97-156

gLERK

In The

Supreme Court of the United States

October Term, 1997

RANDON BRAGDON, D.M.D.,

Petitioner,

Vv.

SIDNEY ABBOTT, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF THE AMICUS CURIAE

THE AMERICAN DENTAL ASSOCIATION

IN SUPPORT OF

PETITIONER RANDON BRAGDON, D.M.D.

Peter M. Sfikas, Esquire

Counsel of Record

Mark S. Rubin, Esquire

Jill A. Wolowitz, Esquire

AMERICAN DENTAL ASSOCIATION

211 East Chicago Avenue

Chicago, IL 60611

Phone: (312) 440-2500

Page

TABLE OF AUTHORITIES

Hendry v. GTE No., Inc,, 896 F Supp.

Page ESET 12

Cases

Abbott v. Bragdon, 107 F.3d 934

ok WOR 4,5, 7,8, 10, 11,17 Homeyer v. Stanley Tulchin Assocs., Inc..

91 F.3d. 959 (7 Cir. 1996)... cccccocccccccceseeeeeeee 5, 10

Board of Educ. v. Mergens, :

Le 1, We 8 Katz v. City Metal Co.,

87 F. 3d 26 (1% Cir. 1996) 000. occ ccccccccccccesceseeveevees 5, 10

Braverman v. Penobscot Shoe Co., ,

859 F.Supp. 596 (D.Me. 1994) ......occccccccccccsccsssssssseee 12 Krauel v. lowa Methodist Medical

meat: Center, 95 F.3d 674 (8" Cir. 1996)... ei. 7

979 F.2d $60 (7 Clr, 199). cc.cccecccesssverncesosesscecsucesesecs 1. Mark v. The Burke Rehabilitation

Hospital, 1997 WL 189124

Cortes v. McDonald’s Corp., et. al., aia icchdeeasicbnbicdehecedsccesescoteececeeeceee 12

955 F.Supp. 541 (E.D.N.C. 1996) ooo... cccccccccceceseeseees 14 Nedder v. Rivier College, 944 F.Supp

Doe v. Kohn Nast & Graf PC. EE Se Te 9

862 F.Supp. 1310 (E.D.Pa. 1994) o.oo. occ ccccceseeeeeeeees 8 ae

Elk Sof . I 916 F. Supp. 797 (N.D.Il. 1996) ooo coccccceeee 7,9

BS F.3d 187 (F” Clr, BOD cciccensnitsinssinccsieain 12, 13 ;, :

Pridemore v. Legal Aid Society,

— oe | 625 F.Supp. 1171 (S.D.Ohio 1985)... 12

and Educ. Radio, Inc., 53 F.3d 55

ey SS OR 4, 10, 11

Forrisi v. Bowen, 794 F.2d 931

(4 Cle, 19GB). oescssesoniesneninnssennecsaiuusienensaanenanen ll

Page

1V

Runnebaum v. Nationsbank of

Maryland, N.A., 123 F.3d 156

gg 4} RA ae 4, 10, 14

School Board of Nassau County v.

Arline, 480 U.S. 273 (1987) 00, 10, 13, 14

Shannon v. U.S., 512 U.S. 573 (1994)... 8

Smith v. Kitterman, Inc., 897 F.Supp.

TRS TEES Rc es 12

“TE YS eee 13

Torcasio v. Murray, 57 F.3d 1340

2 SS ee ee Peg 13

Wi in Public |

Monrtier, 501 U.S. 597 (1991). 8

Zatarain v. WDSU-Television. |

881 F.Supp. 240 (E.D.La. 1995),

aff'd, per curium, 79 F.3d 1143

i RRR Te cs ie or Bs 6

Statutes and Regulations

29 U.S.C. § 706(8)(B) (1993) ooo ccccceceeeeeeeees 13

42 U.S.C. § 12102(2)(A) (1993) oe, 3,11

ae ee.

42 U.S.C. § 1201(OLZ) (1993) ..............cceercessssesscees 15

y oe ee 6

29 CER. § 1630.26) (1995) .......ccccccccccssesesssseeesenevee 16

Supreme Court Rules

A itiehsttn ceric ibniaslinmaciatheiberdmabainia l

RITE FG Bcccuncescecscinseiencneniptinpsitipiiatasiidibinntictscuiinadiaiuipts 2

Legislative History

H.R. Rep. No. 485, Part 2,

101* Cong., 2™ Sess., 50 (1990)..0..........ccccccceseeeeseees 11

Other Authorities

American Dental Association's Policy

Statement on AIDS, HIV Infection and

the Practice of Dentistry (1988:457,

ODE:SP1), Amami GB BID one. nncccccesesceceecnensssees 2

\DA Princinles of Bthica and Code of

Professional Conduct, Section 1-A,

Patient Selection, Advisory Opinion |

(1988), Appendix at 276.0000... ...ccccccccccssvvvesseseseveeeveveee 2

Douglas D. Richman, HIV

Science, Vol. 272

Therapeutics,

ia enn le

Joan Stephenson, New Anti-HIV

Drugs and Treatment Strategies

Journal of

the American Medical

Vol. 275, No. 8 (February 28,

ERE a ti Nhe A

eee eee eee eee

INTEREST OF THE AMICUS

The AMERICAN DENTAL ASSOCIATION (the

“Association”), an Illinois not-for-profit corporation

founded in 1859, is the leading dental association in the

United States with over 140,000 member dentists

representing approximately 75% of this nation's active

licensed dentists.’ The stated object of the Association, as

set forth in its Constitution, is to “encourage the

improvement of the health of the public and to promote the

art and science of dentistry.” The Association has a vital

interest in matters which affect the oral health of the public,

and a long record of educating dentists and the public about

HIV/AIDS and the safety of the dental office.

This brief seeks to begin to clarify the application of what is,

to many dentists and other health care providers, an

ambiguous federal law, the Americans with Disabilities Act

(the “Act”). We applaud this Court for agreeing to address

two key questions pertaining to the Act’s “disability”

definition, so we can give appropriate guidance to our

members, who can in turn use this information when

treating the American public. We note at the outset that this

brief does not in any way challenge or undermine long-

standing Association policy concerning the safety of the

dental office and/or the treatment of HIV-infected

individuals’ nor does it challenge whether someone who

exhibits symptoms of HIV, including AIDS, is “disabled.”

' No counsel for a party authored any part of this amicus curiae brief,

and no person or entity other than the amicus curiae made a monetary

contribution to the preparation or submission of this brief. (Rule 37.6

of the Supreme Court of the United States.)

? As set forth in our amicus curiae bnef below, the Association stands

by its self-explanatory, cornerstone policies that (1) HI'V-individuals

should be treated with compassion and dignity, (2) there is little nsk of

All parties have consented to the filing of this Brief, as

reflected in the consent letters separately submitted to this

Court. Pursuant to the Court’s rules, the Brief brings to the

attention of the Court relevant matter, from the perspective

of America’s leading dental association, not already brought

to the Court’s attention by the Petitioner. (Rule 37.1 of the

Supreme Court of the United States.) Every effort has been

— avoid or minimize duplication with Petitioner’s

transmission of HIV through dental treatment if recommended

infection control procedures are routinely followed, (3) patients with

HIV infection may be safely treated in private dental offices when

appropnate infection control procedures are employed, (4) such

dental personnel, and (5) a decision not to provide treatment to an

individual because the individual has AIDS or is HIV seropositive,

based solely on that fact, 1s unethical. American Dental Association's

(1988:457, 1991:591), Appendix at 273; inci

Code of Professional Conduct, Section 1-A, Patient Selection,

Advisory Opinion | (1988), Appendix at 276. In addition, after the

filing of our brief below, the Association established policies Efficacy

of Universal Precautions and Policy Statement on HIV/AIDS as an

Infectious and Communicable Disease providing, inter alia, that (6)

based on current scientific and epidemiological data, universal

precautions continue to be an effective means of reducing blood

further the already low risk of bloodborne disease transmission in the

dental office, (7) given that data, patients with bloodborne diseases

may be treated in the private dental office with no significant risk of

procedures are employed and (8) in Association communications on

this issue, members be reminded that a patient's HIV/AIDS status is

not a justification for refusal of treatment (19¥6. 734-735).

i

SUMMARY OF ARGUMENT

In the instant case, Respondent is an asymptomatic HIV-

infected woman, whose claim of “disability” was based

solely on her asserted inability to reproduce. To help clarify

the legal obligations of health care providers in such

situations, the Association asked this Court to address two

aspects of the Americans with Disabilities Act’s “disability”

definition.

The Act defines “disability,” in relevant part, as a “physical

or mental impairment that substantially limits one or more of

the major life activities” of the individual in question. 42

U.S.C. § 12102(2)(A) (1993). The Association believes

that whether any particular plaintiff is disabled under the Act

requires an individualized application of a not explicitly

defined legal standard as to what constitutes both a major

life activity and a substantial limitation of that activity.

The Association urges the Court to: (1) resolve a split in

the federal appeals courts by holding “reproduction” is not a

“major life activity” under the Act and (2) determine that

the Act does not confer per se disability status on any

condition, including HIV. On the first question,

“reproduction” is unlike the activities listed in the

regulations describing “major life activities,” and outside of

the protections offered by the Act. On the second question,

it is of paramount importance that this Court exercise great

care before adopting a per se rule, the implementation of

which would be tantamount to a sea change of more than 20

years of case law decided since the passage of the

Rehabilitation Act, in which federal courts have properly

made individualized assessments of plaintiffs’ claims of

“handicap” or “disability.”

While this brief addresses these two questions in the order

accepted for review by this Court, we suggest that the

Court treat them in reverse order. Following the agreed

course set by every circuit court that has addressed this

issue, we believe the Court should first determine that

whether any condition or disease constitutes a “disability”

under the Act must be assessed on a case-by-case basis.

This would mean there is no per se rule for HIV/AIDS — a

perfectly reasonable outcome given the plain language of

the Act, especially in light of treatments for HIV-disease

that have recently been developed. Only then is there need

to address the second question, on which we urge the Court

to hold that “reproduction” is not a “major life activity.”

Because the Association urges this Court to resolve this

case by ruling in Dr. Bragdon’s favor on either or both of

the two issues pertaining to the Act’s “disability” definition,

we do not reach the third question presented for the Court’s

review.

2 ee ee oe le ut «

ARGUMENT

This brief addresses the first two questions accepted for

review by this Court pertaining to the Americans with

Disabilities Act’s definition of “disability.” However, we |

suggest that the Court treat them in reverse order. The

starting point should be one on which the circuit courts of

appeal agree: the plain language of the Act militates against

finding conditions to be per se disabilities and instead

compels a case-by-case determination of whether a given

individual is disabled.

and Educ. Radio, Inc., 53 F.3d 55, 59-60 (4th Cir.

1995)(HIV-disease not a per se disability). Accord, Abbott

yv. Bragdon, 107 F.3d 934, 941 (1" Cir. 1997) and

Runnebaum v. Nationsbank of Maryland, N.A., 123 F.3d

156, 166 (4" Cir. 1997) (employee with HIV-disease not

disabled), citing,

Homeyer v. Stanley Tulchin Assocs., Inc.,

91 F.3d. 959, 962 (7 Cir. 1996) and Katz v. City Metal Co.,

87 F. 3d 26, 32 (1* Cir.1996) for the proposition that “a

determination of disability must be made on an

individualized, case-by-case basis.”

Rejecting a per se disability rule for HIV/AIDS is a

perfectly reasonable outcome, especially given the plain

language of the statute and in light of treatments for HIV-

disease that have recently been developed. Moreover, only

after rejecting a per se rule is there need to address the

second question, on which we urge the Court to hold that

“reproduction” is not a “major life activity” under the Act.

While we suggest that the Court consider the first two

questions presented for review in reverse order, we take

them up below in the order accepted by the Court for

review.

Some persons with asymptomatic HIV-disease, such as

Respondent Ms. Abbott, have claimed “disability” status

under the Act based on their position that their ability to

reproduce is substantially limited by their HIV infection.”

The Association urges this Court to hold that

“reproduction” is not a “major life activity” under the Act.

Had Congress wanted the Act to require health care .

providers to treat persons with asymptomatic HIV-disease

* Respondent's position is based on her “decision” not to reproduce

(Abbott, 107 F.3d. at 942), as opposed to her physical ability to do so.

when their sole claim of actual disability is based on an

asserted inability to reproduce, it could have expressly done

so.

The plain language of the Act does not define what

constitutes a “major life activity.” The applicable

regulations state that “major life activities means functions

such as caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.” 28 C.F.R. § 36.104(2) (1995). While the use of

the words “such as” indicates that this list is illustrative

rather than exhaustive, reproduction is unlike the

specifically enumerated items on the list.

At least two federal appeals courts have rejected the

argument that reproduction is a “major life activity.” The

court in Zatarain v. WDSU-Television, Inc., 881 F. Supp.

240, 243 (E.D.La. 1995), aff'd. per curium, 79 F.3d 1143

(S" Cir. 1996) reasoned that reproduction is not an activity

engaged i in with the same degree of frequency as the

illustrative list of activities in the regulations and therefore

treating reproduction as a major life activity under the Act

would be a conscious expansion of the law beyond the

province of the court. As set forth in the district court

opinion:

“Reproduction is not an activity engaged in

with the same degree of frequency as the

listed activities... A person is required to

walk, see, learn, speak, breath [sic], and |

work throughout the day, day in and day out.

However, a person is not called upon to

reproduce throughout the day, every day.

This court cannot reasonably infer that

reproduction is a ‘major life activity’ based

on an analysis of the illustrative list of

activities in the regulation. Treating

reproduction as a major life activity under

the ADA would be a conscious expansion of

the law, which is beyond the province of this

Court.”

Id. at 243. The court in Krauel v. lowa Methodist Medical

Center, 95 F.3d 674, 677 (8" Cir. 1996) likewise held that

reproduction is not a “major life activity,” agreeing with the

Zatarain position that to treat reproduction as a major life

activity under the ADA would be inconsistent with the

illustrative list of activities in the regulations and a

considerable stretch of federal law.

By concluding that reproduction is a “major life activity”

under the Act, the court in Abbott, 107 F.3d at 941, is in

direct conflict with the above mentioned federal appeals

court decisions. The Abbott court believed that

reproduction “fits comfortably” within the sweep of the

non-exclusive list of functions in the regulations. Id. at 940.

However, the circuit cplit reflects that there is certainly no

comfortable fit. Further, the Abbott court’s disagreement

with Krauel and Zatarain is questionable. True, neither lack

of frequency nor lack of universality diminishes the

importance of conceiving, childbearing and raising a family.

But reproduction is simply not engaged in with the same

frequency or universality as the listed functions. Further,

while not each and every one of the activities enumerated in

the regulations is engaged in by 100% of the population (Id.

at 941), their inclusion in the list of “major life activities” is

not a basis to expand the list by judicial fiat.

Other cases holding that reproduction is a “major life

activity” are also unpersuasive. For example, the court in

Pacourek vy. Inland Steel Co., Inc., 916 F. Supp. 797, 804

(N.D.Ill. 1996) held that reproduction is a “major life

activity” because, inter alia, “[m]any, if not most, people

would consider having a child to be one of life's most

significant moments and greatest achievements, and the

inability to do so, one of life's greatest disappointments”

(emphasis added). However, the items on the regulatory list

of “major life activities” are necessary parts of living for

virtually everyone, not life “achievements.” Taken to its

illogical extreme, does Pacourek suggest that all Americans

without children are disabled? What about those who

cannot have them biologically but nevertheless are able to

adopt? And what about people who simply do not

accomplish other possible achievements that they might

dream about? Are they disabled, too?*

Failing to find support in the statute or the regulations for

the proposition that reproduction is a “major life activity”

under the Act, some courts have examined legislative

history. E.g., Abbott, 107 F.3d at 940. However, this

Court has counseled that legislative history is often “highly

unreliable” and “hazardous at best.” Board of Educ. v.

Mergens, 496 U.S. 226, 242 (1990). Indeed, this Court has

refused to follow legislative history where it “is in no way

anchored in the text of the statute.” Shannon v. U.S., 512

U.S. 573, 583 (1994). See also, Wisconsin Public

Intervenor v. Mortier, 501 U.S. 597, 617 (1991) (Scalia J.,

“ Another of the cases relied on by the trial court reached a decision

on an admittedly “thin” record. Doe y. Kohn Nast & Graf, P.C., 862

F.Supp. 1310, 1318-20 (E.D.Pa. 1994). Interestingly, the Doe court

observed that the definition of “disability” for purposes of the Act is

different than the one a lay person might give to the word: the

Pacourek court might have been more mindful of this distinction when

including “achievements” within the construct of “major life

activities.”

concurring) (legislative history is “unreliable...as a genuine

indicator of congressional intent’’).

For the reasons set forth above, the Association urges this

Court to determine that “reproduction” is not a “major life

activity” under the Americans With Disabilities Act.

“Reproduction” is unlike the activities listed in the

regulations describing “major life activities.” Thus, one

whose only contention is that she “decided” not to have

children is outside of the protections offered by the Act.

IL. This Court Should ine That The Americans With

It appears that this case is the first the Court will hear on

whether any particular condition, including HIV disease,

constitutes a “disability” under the Americans with

Disabilities Act. Especially in this context, the Association

urges the Court not to single out any condition for per se

disability treatment. Doing so would arguably represent a

sea change in more than 20 years of case law since the

passage of the substantially similar definition contained in

the Rehabilitation Act.”

* The definition of “disability” in the ADA mirrors that of the term

“handicap” in the Rehabilitation Act of 1973, 29 U.S.C. 701-96. The

two terms have been interpreted identically. Pacourek, 916 F.Supp.

797, 801 (N.D.IL. 1996). The courts look to case law interpreting

both statutes when analyzing plaintiff's evidence of “disability.” See,

Nedder vy. Rivier College, 944 F.Supp. 111, 115 n. 5. (D.N.H. 1996).

As set forth more fully below, courts applying the Rehabilitation Act

definition have routinely engaged in individualized determinations

10

The Association urges this Court to embrace the general

approach agreed to by other circuit courts of appeal outside

of the HIV/AIDS arena, requiring that “a determination of

disability must be made on an individualized, case-by-case

basis.” Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d.

959, 962 (7" Cir.1996); Katz v, City Metal Co., 87 F. 3d 26,

32 (1" Cir.1996). The Fourth Circuit has taken the lead in

applying this approach in the context of HIV/AIDS (Ennis,

53 F.3d at 59-60) (plain language of the Act militates

against finding HIV-disease to be a per se disability),

recently holding that an asymptomatic HIV-infected

employee was not disabled under the Act. Runnebaum, 123

F.3d at 166. On its face, the First Circuit took a similar

approach in the instant case, rejecting a per se standard and

instead exploring whether Respondent could prove that she

satisfied the Act’s disability definition. Abbott, 107 F.3d at

939.

The Association urges this Court to reject calls for a per se

disability rule for any condition. Some decisions, like the

First Circuit’s in the instant case, come dangerously close to

the adopticn of such a standard.° Had Congress expressly

— frye mo including this Court in its landmark decision

| f Nass: orida y. Arline 480 U.S. 273

(1987). musedinn eoutteciaiaianciinia tuberculosis.

* In amending its original decision, the First Circuit highlighted that

“Congress deemed HIV-infected individuals to be disabled under the

ADA,” quoting from the Act's legislative history that reflected

“[plersons infected with the Human Immunodeficiency Virus are

considered to have an impairment that substantially limits a major life

activity, and thus are considered disabled under the first test of the

definition...{and] a person infected with [HIV] is covered under the

first prong of the definition of the term ‘disability’ because of a

substantial limitation to procreation and intimate sexual

relationships.” Abbott, 107 F.3d at 942-43. According to the Court,

ee

sought to single HIV/AIDS out for special consideration,

that would be one thing. But Congress did not. Rather, in

framing the Americans with Disabilities Act, Congress relied

upon a definition borrowed from the Rehabilitation Act,

passed long before the advent of the AIDS epidemic.’

Courts applying the definitions have routinely inquired into

the facts in the record regarding a plaintiff's alleged

disability, rather than carving out per se disability status for

any condition. See, ¢.g., Forrisi v. Bowen, 794 F.2d 931,

933 (4” Cir. 1986); Byrne v. Board of Education, 979 F.2d

560, 564 (7" Cir. 1992).

Like the Rehabilitation Act before it, the Americans with

Disabilities Act’s statutory definition does not enumerate a

list of disabilities, but instead characterizes “disability,” in

relevant part, as a “physical or mental impairment that .

substantially limits one or more of the major life activities”

of the individual in question. 42 U.S.C. § 12102(2)(A).

Accordingly, whether any particular plaintiff is disabled

under the Act requires an individualized application of a not

explicitly defined legal standard as to what constitutes both

a major life activity and a substantial limitation of that

activity. Indeed, the plain language of the Act militates

against finding HIV disease to be a disability per se and

compels a case-by-case determination of whether a given

individual is disabled by HIV/AIDS. Ennis, 53 F.3d at 59-

60. As set forth above, the courts of appeals considering

this issue agree that findings of disability must be made on a

case-by-case basis. Supra at pp.4 and 5.

the “legislative history thus independently bolsters our conviction that

Ms. Abbott is disabled under the ADA.” Id. In point of fact,

however, this added language risks tilting all other courts towards a

per se tule for HIV.

’ H.R. Rep. No. 485, Part 2, 101" Cong., 2™ Sess., 50 (1990).

12

Adopting a per se disability rule could allow for end runs

around the Act’s clear requirement of individualized

assessments. It also risks eviscerating key elements of the

Act's “disability” definition, su-h «, whether a particular

plaintiff with a given impairment is substantially limited in a

major life activity . For example, some courts have held

that cancer is a disability,

Hospital, 1997 WL 189124 (S.D.N_Y. 1997); some courts

have held it is not. Ellison v. Software Spectrum, Inc., 85

F.3d 187, 191 (S" Cir. 1996). Appropriately, courts on both

sides have examined the facts of a particular case and

eschewed the application of a per se rule.

The adoption of a per se rule could also risk the judiciary

nding roughshod over matters that are best handled by triers

of fact. Moreover, numerous decisions under both the

Americans with Disabilities and Rehabilitation Acts have

denied summary judgment and sent the issue of disability to

the jury, often because the record did not resolve all issues

of material fact as to whether the claimed impairment

e.g., Hendry v. GTE No., Inc., 896 F. Supp. 816, 824-825

(N.D.Ind. 1995) (intermittent migraine headaches); Smith v.

Kitterman, Inc., 897 F Supp. 423, 427-28 (W.D.Mo. 1995)

(carpal tunnel syndrome), Braverman v_ Penobscot Shoe

Co., 859 F Supp. 596, 603 (D.Me. 1994) (cancer);

Pridemore v. Legal Aid Society, 625 F.Supp. 1171, 1176

(S.D.Ohio 1985) (mild cerebral palsy, mental illness).

The Association is mindful that the rejection of a per se

disability standard could lead to what may be viewed as

harsh results, but the solution here would be a legislative,

not a judicial, one. True, lower courts are limiting the

“disability” definition in ways that many might not agree

with, and with respect to conditions that many might

13

otherwise presume to be per se disabling. But a proper

reading of the Act calls for an individualized determination

of “disability” based on the record in a given case. For

example, in Ellison, supra at p.12, the Fifth Circuit affirmed

a grant of summary judgment against a woman with breast

the record did not create a material issue of fact regarding

whether her cancer and treatment “substantially limited” her

major life activity of working — notwithstanding the

plaintiff's testimony that while “the radiation treatment

made her nauseous and tired and she suffered an allergic

reaction to the radiation which caused painful swelling and

inflammation, the treatment did not effect her ability to do

her job and she...was back to normal in three or four

months.” Id. at 191. Likewise, in Still v. Freeport-

McMoran, Inc., 120 F.3d 50, 52 (S" Cir. 1997), the Fifth

Circuit found that blindness in one eye did not constitute

disability, in part because plaintiff's “contention is without

record support,” where plaintiff offered “no evidence that he

[was] unable to emgage in any usual activity because of his

partial blindness.” These cases understand that the Act

requires an individualized determination of “disability,” and

thus avoid the application of a per se rule for any condition.

Congress can enact legislation to the contrary if it sees fit.

The Association urges this Court to track its approach in its

seminal case School Board of Nassau County v. Arline, 480

U.S. 273 (1987), in which the Court considered whether an

individual with tuberculosis was “handicapped” as defined in

the Rehabilitation Act. That act’s definition of “handicap” is

the precursor to the Americans with Disabilities Act's

“disability,” 29 U.S.C. § 706(8)(B) (1993), and also

“contemplate[s] individualized assessments of whether a

person qualifies as an ‘individual with a disability."”

Torcasio v. Murray, 57 F.3d 1340, 1353 n.15 (4th Cir.

1995). The Arline Court specifically reserved the question

14

of whether “a carrier of a contagious disease such as AIDS

could be considered to have a physical impairment, or

whether such a person could be considered, solely on the

basis of contagiousness, a handicapped person as defined by

the Act.” Arline, 480 U.S. at 282, fn. 7. However, in

determining whether one or more of plaintiff's major life

activities were substantially limited by her tuberculosis, the

Court looked to the fact that the she required

hospitalization. Id. at 281. As set forth above, federal

appeals courts since Arline have concluded that the question

of who is a handicapped person under the Rehabilitation Act

is best suited to a case-by-case determination. Supra at

p.11. The same approach should continue to be carried

over to Cases now arising under the Americans with

As noted above, the Fourth Circuit recently determined that

an asypmtomatic HIV-infected individual was not disabled.

In Runnebaum, 123 F.3d 156 (4" Cir. 1997), the Court

Properly undertook an individualized assessment of the

plaintiff's alleged disability. Responding to amici’s

argument that Runnebaum’s ability to procreate and engage

in intimate sexual relations were substantially limited by his

HIV -infection, the court determined that “asymptomatic

HIV does not substantially limit procreation or intimate

sexual relations for purposes of the ADA.” Id. at 172. The

court went on to specifically find “the record makes clear

arc apnea = ty arty par |

relations wa: Ss! lly limitec tion.

Id. (emphasis added). See also, Cortes v. McDonald's

Corp., et. al., 955 F.Supp. 541, 546 (E.D.N.C. 1996),

holding that an asymptomatic HIV-infected employee of

McDonald’s was not disabled, in part because “according to

a

15

the record before the court, the plaintiff has failed to

establish that he experienced any limitation at work, let

alone a substantial limitation of a major life function.”*

The Association urges the Court to reject the application of

a disability per se rule to any condition, including HIV.

Applying a blanket per se rule solely for diseases de jour

can be confusing to the point that those charged with

compliance, and the public in general, might genuinely loose

confidence in the law, the lawmakers, and the courts that

interpret the law. Laws must be consistently and fairly

applied to instill public confidence, and compliance with the

Act is likely to be optimized if it is applied consistently with

respect to all diseases and conditions. Indeed, one of the

Act’s express purposes is “to provide clear, strong,

consistent, enforceable standards addressing discrimination

against individuals with disabilities.” 42 U.S.C. §

1201(b)(2)(1993) (emphasis added).” The correct approach

® In the instant case, the briefs below reflect the importance of looking

to the record to determine whether a particular plaintiff has a

“disability” under the Act, even in the case of asymptomatic HIV-

infection. As set forth in our amicus curiae brief in the First Circuit,

Respondent's contradictory deposition testimony could lead reasonable

people to disagree as to whether her ability to reproduce was

“substantially limited” by her asymptomatic HIV-infection. Of note is

that the Department of Jusiice also relied on Respondent's deposition

testimony, albeit to different ends, to support its position that she did

have a “disability.” In so doing, the Department of Justice arguably

recognized that a disability per se approach is inconsistent with the

plain language and intent of the Act.

° The Association urges that the Court consider going even a step

further, by providing guidance to courts adopting rules that

approximate per se standards. To emphasize that a determination of

“disability” under the Act requires an individualized assessment, the

Court might wish to level a slippery slope that at least one court,

backing only slightly away from a per se rule, recently adopted. In

16

is to treat all conditions as subject to a case-by-case

assessment of disability. The statute should not be read to

accord per se disability treatment to HIV/AIDS alone, while

subjecting all other diseases, such as cancer and blindness,

to individualized assessments.

This Court should send a clear message that there are no

“special” disabilities, and that all diseases and conditions

will be judged by the same “disability” definition that was

time tested long before the advent of HIV."’ Doing so is

necessary to assure that the law, as written, keeps up with

scientific developments. Consider, for example, the advent

of protease inhibitors and their miraculous impact on the

lives of persons with HIV-disease. By the nature of this

Temande; cr hsurance Lompany of Arr 977 F.Supp.

1160, 1165 (M.D.Fla. 1997), the court found that a plaintiff with

asymptomatic HIV was disabled, based in part on its belief that his

need for continued medical care demonstrated that he could not care

for himself. This ruling begins the slippery slope because persons with

many conditions need to visit their doctors, but that factor alone

certainly does not mean they have a disability. The Hernandez court

such as HIV infection, are inherently substantially limiting.” Id.,

citing 29 C.F.R. § 1630.2(j). Congress could have enacted similar

language into law, but declined to do so, thus avoiding the slippery

slope of rules approximating per se standards.

'° The Association is mindful that some cases decided under the

Rehabilitation Act could be viewed as approximating a per se standard

for HIV-disease. It is not always clear that those cases involve

asymptomatic HIV. Also, in some of the cases, the defense did not

challenge whether HIV was a handicap. In others, the court

presumed, with little or no analysis, that HIV disease constituted a

handicap. None of these cases articulate a reasoned basis for

Act, which is seemingly applied in all other cases arising under that

ce aaa eS a eee 8

17

scientific development, and the ability to reduce HIV RNA

to undetectable levels in many cases, many persors once

living with a death sentence may now have hope.'’ The

First Circuit’s opinion is predicated, in part, on the notion

that Ms. Abbott could not reproduce; the court reached that

determination based on a broad definition of reproduction,

including that Ms. Abbott would not be alive long enough

to mother a child.'? The First Circuit purposefully limited

its opinion to the facts of the case, recognizing that

scientific developments might change how it resolved future

cases.'* The question must be asked: with the benefits of

protease inhibitors, would a similarly situated woman

prevail in the First Circuit today? The application of a per

se tule would not allow this or other important questions to

be asked, let alone answered. This Court should reject the

application of a per se disability standard for any disability,

' See, ¢.g., Carpenter, et al., Antiretrovial Therapy for HIV Infection

in 1997, Journal of the American Medical Association, Vol. 277, No.

24 at 1962-69 (June 25, 1997)(describing scientific rationale for

earlier initiation of more aggressive therapy and careful selection of

initial drug regimen for optimal long-term clinical benefit), Douglas

D. Richman, HIV Therapeutics, Science, Vol. 272 at 1886-87 (June

28, 1996); and Joan Stephenson, New Anti-HIV Drugs and Treatment

Strategies Buoy AIDS Researchers, Journal of the American Medical

Association, Vol. 275, No. 8 at 579 (February 28, 1996).

'2 Abbott, 107 F.3d at 939-41.

'3 Id. at 948. While the First Circuit left the door open for

consideration of different facts, including those based on scientific

developments, its decision, including by its construction of the Act's

legislative history, still comes dangerously close to the appiication of a

disability per se rule for HIV-disease.

including HIV, if only to establish that the law can adjust to

such developments. *

CONCLUSION

The American Dental Association appreciates the

opportunity to bring to this Court’s attention issues

pertaining to the Americans with Disabilities Act that are of

paramount importance, in order to provide clear guidance to

health care practitioners about their obligations to treat

individuals with asymptomatic HIV-disease, particularly

where those individuais claim “disability” status solely by

virtue of an asserted inability to reproduce. We urge the

Court to: (1) resolve the split in the circuit courts by holding

“reproduction” is not a “major life activity” under the Act

and (2) determine that the Act does not confer per se

disability status on any condition, including HIV. The

Court’s resolution of these issues will, we trust, begin to

clarify the determination of what is a disability under the

Act.

'* In anticipation of briefs by others on the question this Court

reserved in Arline, we urge the Court to consider that it would be

difficult, if not impossible, to hold contagiousness alone can confer

disability status by singling out HIV as a per se disability. If HIV-

disease is a per se disability, why not hepatitis B, hepatitis C and

tuberculosis? Beyond infection diseases, what of chronic conditions

such as arthritis, multiple sclerosis and lupus? The fact that one’s

body cannot ameliorate the condition, or that the infection can be

transmitted to others, has not previously persuaded this Court, or the

lower courts, to abandon the statutory requirement for an

individualized inquiry into whether a person’s impairment

substantially limits one or more major life activities.

19

Respectfully Submitted,

Peter M. Sfikas, Esq.

Counsel of Record

Mark S. Rubin, Esq.

Jill A. Wolowitz, Esq.

AMERICAN DENTAL ASSOCIATION

211 East Chicago Avenue

Chicago, IL 60611