Court decisions and briefs addressing when HIV is a covered disability under federal antidiscrimination law; general overviews of federal disability law, including as applied to HIV.
Couture v. Bonfils Memorial Blood Bank, Tenth Circuit, January 7, 2005: Motion for Leave to File Amicus Brief and Amicus Brief by the Training and Advocacy Support Center, National Employment Lawyers Association, Colorado Cross-Disability Coalition, Centers Legal Initiatives Project and the American Association of People with Disabilities. The Legal Center Serving Persons with Disabilities represented the plaintiff on appeal.
The amici here urged reversal on the grounds that the relevant case law and EEOC guidelines all hold that involuntary reassignment is actionable and that to find otherwise would undermine the remedial purpose of all federal and state anti-discrimination laws.
This document contains both the motion for leave to file an amicus brief pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure and the amicus brief itself. As per the Rule, the motion for leave addresses the movants interest, desirability of the brief to the court and states that the matters asserted therein are relevant to the disposition of the case. Movants here are either national or Colorado state non-profit advocacy organizations of and/or for people with disabilities. As such, they have expertise in and a significant, on-going interest in the interpretation of anti-discrimination laws. In order to proceed to trial, plaintiffs suing under the ADA and CADA must establish that they suffered some harm in the form of an adverse employment action. Movants concern is that the lower courts holding is incorrect and will have an undesirable impact on public policy and future litigation.
The amicus brief advocates reversal from both stare decis and public policy perspectives. Their research of the plain language of the ADA and CADA, case law and EEOC guidelines dictate the result that an employer may not compel a qualified individual with a disability to accept an accommodation that is neither required nor needed. Employers are not entitled to use anti-discrimination laws in an antithetical way to limit, segregate or remove employees from the public eye because of unreasonable fears and prejudices concerning their disabled status. In determining whether a plaintiff has suffered harm, courts must construe the meaning liberally in order to effectuate the laws remedial purposes. Actionable employment practices include the obvious such as docking pay or responsibilities, but also include requiring an employee to accept different duties or utilize a lesser degree of skill than his previous assignment.
Couture v. Bonfils Memorial Blood Bank, 10th Circuit, Amicus Brief by ACLU, et al
2005-01-06
Couture v. Bonfils Memorial Blood Bank, 10th Circuit, January 7th, 2005: Motion of American Civil Liberties Union, American Civil Liberties Union of Colorado, AIDS Alliance for Children, Youth and Families, Association of Nurses in AIDS Care, Boulder County AIDS Project, Northern Colorado AIDS Project, and Whitman-Walker Clinic, for leave to file a brief as amici curiae in support of plaintiff-appellant, urging reversal
On a wrongful employment action brought under the Americans with Disabilities Act (ADA) and state anti-discrimination laws, amici contend that the direct threat affirmative defense is not applicable here because an HIV-positive phlebotomist may safely draw blood.
This document contains both the motion for leave to file an amicus brief pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure and the amicus brief itself. The organizations represented on this brief are national or Colorado state advocacy organizations with relevant specialized knowledge including constitutional and individual rights of HIV-positive citizens, employment discrimination based on HIV status and the ADA, healthcare practices and outreach regarding HIV, and phlebotomy practices and HIV.
Amici state that exaggerated fears and misconceptions about HIV transmission will be used to justify discrimination. In order for an employer to successfully invoke the direct threat affirmative defense there must be a significant risk of substantial harm. Objective scientific evidence from naturally recognized sources such as the Center for Disease Control (CDC) shows that the chances of transmission from the phlebotomist to a donor are so statistically unlikely that they are essentially zero. Phlebotomy is not a procedure that the CDC prohibits HIV status employees from performing. Millions of people donate blood every year and there is no known instance of phlebotomist to donor transmission. Strong public policy concerns are raised by the lower courts dismissal of plaintiffs claims. ADAs stated purpose is to protect disabled individuals from employment decisions based on irrational prejudice and fear.
Couture v. Bonfils Memorial Blood Center, 10th Circuit, Amicus Brief by LAMBDA, et al,
2005-01
Couture v. Bonfils Memorial Blood Center, 10th Circuit, January 2005: Amicus Brief by American Academy of HIV Medicine, International Association of Physicians in AIDS Care, National Association of People with AIDS, Western Colorado AIDS Project, and Womens Lighthouse Project. Amici collectively represent and treat hundreds of thousands of individuals throughout the United States and worldwide who are infected with HIV. Based on their experience and knowledge about the course, effects and treatment of HIV disease, amici understand that HIV invariably substantially limits the major life activities of those living with the disease and that people with HIV commonly are regarded as substantially limited as well.
Urging reversal of the lower courts ruling, the amici here address the issue of whether appellants HIV-positive status qualifies as a disability under the Americans with Disabilities Act (ADA) and answer in the affirmative. Amici defend this position on three grounds: (1) The text and legislative history of the ADA establish that the act provides broad protections to people with HIV, (2) HIV infection is a disability, and (3) HIV-positive individuals are regarded as disabled.
On the first point, amici point out the broad intent of congress in drafting the ADA as well as the verbatim use of the definition of disability from the Rehabilitation Act of 1974 which recognized HIV as a disability. On the second point, amici discuss the three step analysis used by courts to determine whether a plaintiffs disability falls within the ADAs definition. Amici also address the judicial/legislative meaning of major life activity and, in citing both the physical impairments of HIV and the limitations of procreating and sexual relationships as a result of infection, contend that appellants HIV-positive status meet this definition. Amici contend that the Supreme Court ruling in Bragdon, and subsequent federal rulings, compels recognition of appellants HIV-positive status as a disability under the ADAs definition. On the third point, amici contend that the ADAs protection of those regarded as disabled applies directly to the appellant whose employer regarded him as being substantially impaired and whose termination was based on fears and stereotypes. Amici contend that the termination based on fears and/or stereotypes about plaintiffs disability is precisely what the ADA was created to combat.
Saavedra v. Nodak Enterprises, United States District Court for the Northern District of Georgia, Atlanta Division
First Amended Complaint, Gregory Nevins, Jonathan Givner, Lambda Legal Defense & Education Fund and C. Michael Bozeman, Esq.
2004-11-12
This employment discrimination complaint neatly lays out an effective challenge to an employers discharge of an HIV positive employee on the unfounded basis that the employee poses a direct threat to co-workers and those around him. The fired employee alleges that his termination, and the employers failure to provide a reasonable accommodation that would allow him to keep working, violated the Americans with Disabilities Act (ADA). Plaintiff Saavedra, a qualified auto glass installer with 25 years of experience, was fired solely on the basis of his HIV-positive status . Upon his termination, defendant provided Saavedra with a written Personnel Action Form explaining that the reason for his termination was that his HIV-positive status posed a direct threat to other employees. With no evidence that Saavedra was unable to perform the essential functions of his job without accommodation or that his HIV status posed a direct threat to those around him, Saavedras termination was the product of defendants erroneous assumptions about HIV transmission, unsupported fears and stereotypes. This type of discrimination, based on medically unsound beliefs about the danger that a person with HIV presents, is precisely the type of prejudice that the ADA was designed to combat.
This five-count complaint brought in state court under the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 and various Wisconsin state law claims alleges that defendants refused medical treatment to plaintiff because of his HIV-positive status. Defendants are an orthopedic practice and an orthopedist who refused to perform plaintiffs spinal fusion surgery. Plaintiff was asked and agreed to be tested for HIV, an independent group of surgeons approved him as appropriate for the surgery and the surgery itself was prompted by the fact that plaintiff was in constant and excruciating pain. Plaintiff, who did not know he was HIV-positive until defendants cancelled his surgery, also sued them under state law for the indignity they caused him for the callous manner in which he was informed of his status and their refusal to counsel or refer him for further medical services.
An HIV-positive man sued his dentist under the New Jersey Law Against Discrimination (LAD) and the AIDS Assistance Act, for the dentists illegal and discriminatory refusal to provide routine dental care because of his HIV status. The dentist also disclosed, for reasons unrelated to his medical care, the plaintiffs HIV-status to a person outside the office. As an excuse for denying plaintiff treatment, the dentist claimed that his staff felt unsafe and that he believed that, in order to treat an HIV-positive person, the dentist would need to have special equipment and cleaning practices. The complaint highlights the fallacy of the dentists arguments by reiterating the American Dental Associations position that standard practices are completely adequate to protect dentists and dental workers from risk of HIV infection by patient contact, and that it is medically and scientifically unwarranted and unethical for dentists to refuse to treat individuals solely because of HIV status.
This settlement agreement resolving Smiths complaint in response to emergency medical services personnels refusal to touch or lift him because of his HIV status illustrates possible non-monetary remedies for such conduct, and also how one persons lawsuit can change the way a public institution behaves towards people living with HIV. In addition to monetary compensation, the agreement requires the city to implement a mandatory paramedic/EMT training program on HIV and infectious diseases on a periodic, on-going basis.
Plaintiff sued under the Rehabilitation Act of 1973 when the United States government rejected his Foreign Service Officer application on the grounds that his HIV-positive status precluded him from fulfilling an essential job function namely, worldwide availability to serve abroad and that, in the governments view, his status would unreasonably require expensive and disruptive medical travel. It was undisputed that plaintiff was exceptionally qualified for the position. In this D.C. Circuit Court opinion, plaintiff successful appealed from the district courts grant of summary judgment which held that (1) plaintiffs HIV-positive status was a direct threat to his health and, alternatively, (2) accommodating plaintiffs disability would place an undue burden on the employer. Defendants alleged non-pretextual reason for rejecting plaintiffs application his alleged asthma was also disputed.
In reversing and remanding for further proceedings, the Circuit Court found that several issues of material fact precluded summary judgment. The direct threat defense must be based on an individualized assessment of the individuals present ability to safely perform the essential functions of the job. Here, it was undisputed that plaintiff could receive adequate medical care in at least 68 percent of the Foreign Services overseas posts. In examining whether this amounted to worldwide availability, the Court looked to Foreign Service statutes and regulations, written job descriptions and the experiences of incumbents in similar jobs. The Court found that the statutes, regulations and job descriptions failed to define worldwide availability and that plaintiff presented evidence of officers who were geographically limited for a variety of reasons. Thus, the record revealed a genuine issue of material fact regarding plaintiffs ability to perform the essential job function of worldwide availability. The reasonableness o plaintiffs second proposed accommodation, that he utilize vacation and personal time for medical care, was similarly a disputed fact. In acknowledging that the Act does not provide a comprehensive list of reasonable accommodations, the court noted that that the parties presented conflicting medical evidence about the frequency of plaintiffs health care appointments and that some amount of medical travel and expenses were typically incurred by other Foreign Service Officers without undue hardship on the government. Finally, the court rejected defendants alleged non-pretextual reasons for failing to hire plaintiff because, among other things, officers with asthma had previously been hired.
Sidney Abbott, who is HIV-positive, sought dental care (filling a cavity) from Randon Bragdon, a dentist in Maine. After Abbott disclosed her HIV status on a registration form, Bragdon refused to treat her in his office, instead offering to treat her at a local hospital where, he asserted, they would be better equipped to minimize the risk of HIV exposure. Abbott declined the alternative arrangements and brought suit against Bragdon, alleging violation of Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability in places of public accommodation. Abbott asserted that her HIV infection substantially limited her ability to bear children, which qualified her as a person with a disability for purposes of ADA coverage. The District Court found in favor of Abbott, ruling that her HIV infection satisfied the statutory definition of disability, and that her HIV status did not pose a direct threat to Bragdon.
On appeal, the First Circuit affirmed, holding that Abbott’s HIV infection qualified as a disability under the ADA, even though she was asymptomatic at the time, and that treating Abbott in a dental office would not have posed a direct threat to the health and safety of others. The Supreme Court affirmed. Writing for the court, Justice Kennedy, relying on the first prong of the ADA definition of disability, found that (1) HIV infection, whether symptomatic or asymptomatic, qualifies as an impairment, (2) reproduction is a major life activity, and (3) the impairment of HIV infection substantially limits the major life activity of reproduction. According to the court, “the [ADA] addresses substantial limitations on major life activities, not utter inabilities.” The court explicitly did not address the question of whether or not HIV infection is a per se disability under the ADA. The court also found that Bragdon did not present any “objective, medical evidence” indicating that it would be safer to treat Abbott in a hospital as opposed to his office. However, concerned that the First Circuit’s reliance on certain agency guidelines to support their position was misplaced, the court remanded the case on this issue.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Stevens, along with Justice Breyer, concurred in the court’s decision to affirm on the disability determination, but would have affirmed the case outright.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Rehnquist, with whom Justices Scalia and Thomas agreed, dissented, asserting that the ADA requires the disability determination to be individual, not general. Therefore, if HIV infection did not substantially limit Abbott’s decision about whether or not to bear children, then Abbott herself does not qualify as disabled under the ADA (even if another person in her position would). Abbott had, in fact, claimed that she had not planned to have children. Justice Rehnquist conceded that HIV infection is an impairment, but did not agree that reproduction is a major life activity, equal in import to walking, talking, breathing, and eating. The activity must be more than important, it must be “repetitively performed and essential in the day-to-day existence of a normally functioning individual.” Further, Justice Rehnquist asserted that even if reproduction is a major life activity, HIV infection does not substantially limit it because Abbott still has the ability to reproduce, even if she has good reasons not to. Justice Rehnquist further found that Bragdon had asserted enough evidence to avoid summary judgment on the question of whether Abbott posed a direct threat to the health and safety of others.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice O’Connor agreed with the dissenters that Abbott’s claim should have been evaluated on an individual basis. She also agreed that remand on the issue of direct threat was appropriate.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Ginsburg concurred in the entire decision, including the remand on the direct threat issue, stating that “it is wise to remand, erring, if at all, on the side of caution.”
In response to a complaint filed by an HIV-positive individual alleging that she was denied services by a medical weight loss clinic, the U.S. Department of Justice (DOJ) intervened and negotiated this settlement agreement. The complaint alleged that the plaintiff was denied services on the basis of her disability (HIV infection) in violation of Title III of the Americans with Disabilities Act (ADA). The agreement provides for both individual and injunctive relief, including a requirement that the clinic not implement eligibility criteria intended to screen out individuals with disabilities. The clinic must also adopt and publicly post a non-discrimination policy at all of its locations throughout the state, and provide training for all of its employees on the ADA and its requirements, including as it pertains to individuals with HIV. Lastly, the clinic will submit a letter to DOJ on an annual basis confirming its compliance with the terms of the agreement.
Prepared by the U.S. Department of Justice in September, 2005, and updated in February, 2006, this guide provides a basic overview of federal laws that offer antidiscrimination protections to people with disabilities, including those with HIV/AIDS. Links and contact information for the federal agencies and organizations charged with enforcement of these laws, and statutory citations, is included. Laws covered include the Americans with Disabilities Act (ADA), Telecommunications Act, Fair Housing Act, Air Carrier Access Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, Civil Rights of Institutionalized Persons Act (CRIPA), Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Rehab Act), and the Architectural Barriers Act.
This document created by the Equal Employment Opportunity Commission (EEOC) offers guidance on how the Americans with Disabilities Act (ADA) applies to health care workers. Presented in question and answer format, this guide addresses numerous issues that may be of concern specifically to health care workers, including definition of disability, qualification, reasonable accommodation, direct threat to safety, disclosure of medical information, and enforcement. The guide includes several examples to illustrate various scenarios in which health care workers may find themselves. Each example is based on an actual case, and includes citations.
Passed by Congress in 1990, the Americans with Disabilities Act (ADA) was intended to ensure that people living with disabilities have access to all of the same opportunities as those without disabilities. The ADA extended coverage provided by the Rehabilitation Act of 1973 to employees and participants in federal agencies and federally-funded programs by applying its requirements to the private sector as well as to state entities. The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." As a result of the ADA being enacted, thousands of people have benefited not only from its prohibitions on discrimination in employment, transportation, and public accommodations, but also from its requirements that facilities and public spaces be made more accessible to people with physical disabilities. In 1998, the U.S. Supreme Court issued its first decision addressing the ADA as it relates to HIV infection as a disability (see Bragdon v. Abbott, 524 U.S. 624 (1998)). Since then, the Court has interpreted the language of the ADA in ways that have severely limited its scope of coverage (see Sutton v. United Airlines, 527 U.S. 471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002)). In response, Congress is considering a bill that would reinstate some of the original intent of the ADA and specifically reject the Supreme Court's reasoning in Sutton and Toyota, while seeking to reaffirm the court's reasoning in School Board of Nassau County v. Arline (480 U.S. 273 (1987)), which broadly interpreted the definition of disability in the Rehabilitation Act of 1973.
Part 1630 of Title 29 of the Code of Federal Regulations was issued by the Equal Employment Opportunities Commission (EEOC) pursuant to the Americans with Disabilities Act (ADA). According to the regulations themselves, “[t]he purpose of this part is to implement title I of the Americans with Disabilities Act (42 U.S.C. 12101, et seq.) (ADA), requiring equal employment opportunities for qualified individuals with disabilities, and sections 3(2), 3(3), 501, 503, 506(e), 508, 510, and 511 of the ADA as those sections pertain to the employment of qualified individuals with disabilities.” To check for updates to this part, consult the Government Printing Office web site at http://www.gpoaccess.gov/cfr/index.html.
To help employers comply with Title I of the Americans with Disabilities Act (ADA), the Equal Employment Opportunities Commission (EEOC) issued this guidance document, which explains each section of Title I and offers practical illustrations to demonstrate how the law applies in various situations.
Part 35 of Title 28 of the Code of Federal Regulations was issued by the Department of Justice pursuant to the Americans with Disabilities Act (ADA) in order to implement the requirements contained within Title II of the Act, which applies to state and local governments. To check for updates to this part, consult the Government Printing Office web site at http://www.gpoaccess.gov/cfr/index.html.
To help state and local governments comply with Title II of the Americans with Disabilities Act (ADA), the U.S. Department of Justice issued this guidance document, which explains each section of Title II and offers practical illustrations to demonstrate how the law applies in various situations.
Part 36 of Title 28 of the Code of Federal Regulations was issued by the Department of Justice pursuant to the Americans with Disabilities Act (ADA) in order to implement the requirements contained within Title III of the Act, which applies to places of public accommodation. To check for updates to this part, consult the Government Printing Office web site at http://www.gpoaccess.gov/cfr/index.html.
To help entities that are considered places of public accommodation comply with Title III of the Americans with Disabilities Act (ADA), the U.S. Department of Justice issued this guidance document, which explains each section of Title III and offers practical illustrations to demonstrate how the law applies in various situations.
