AIDS and the ADA: protection from perception.

The Americans with Disabilities Act protects healthy people perceived as having a disability.

Richard Martinez is hired as a mid-level sales manager of a company with several hundred employees. Almost immediately, he breaks sales records. Within six months, he exceeds the 12-month projection on revenue. At a staff meeting, the manager congratulates Richard on his outstanding performance.

Several months later, Richard's male domestic partner is diagnosed with AIDS. Richard contacts his assistant and asks her to tell the boss that he needs a few days off to console his partner.

He returns to work about a week later expecting a supportive environment. Instead, his coworkers no longer speak to him. His boss avoids eye contact. He overhears AIDS-phobic and homophobic remarks. At a weekly staff meeting, everyone but Richard is asked to present his or her sales record.

Within two weeks, Richard is fired. His supervisor claims that, notwithstanding Richard's extraordinary sales record, the company cannot afford to keep him, and he is terminated, effective immediately.

Does Richard, who does not have HIV or AIDS, have a valid employment discrimination claim?(1)

Legislative history, federal regulations, and case law have established that the Americans with Disabilities Act of 1990 (ADA)(2) protects people with HIV from discrimination. In Bragdon v. Abbott, the U.S. Supreme Court held that because HIV limits reproduction, a major life activity, even asymptomatic HIV infection is a disability under the ADA.(3)

It is clear that the act prohibits discrimination against people infected with HIV, but what about their friends and families who suffer discrimination? This question is increasingly important as almost 300,000 people in the United States are living with AIDS, and it is estimated that between 650,000 and 900,000 people are infected with HIV.(4)

The evidence suggests that Richard Martinez was fired because of his employer's perception that he has HIV or because of his employer's discomfort with the HIV status of Richard's partner. Since Richard is HIV-negative and suffers no actual impairment, most would assume that although he was treated unfairly, he would not be entitled to protection under the Americans with Disabilities Act.

In fact, the act has a provision that prohibits such discrimination.

The ADA defines a person with a disability as someone who has an actual impairment--but also as someone "regarded as having such an impairment."(5) Congress provided this broad protection because it recognized that simply being perceived as disabled may lead to discrimination.(6)

The federal regulations implementing the ADA provide that a person is "regarded as having an impairment" if that person

* has a physical or mental impairment that does not substantially limit major life activities but that is treated by a covered entity as constituting such a limitation;

* has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; or

* has none of the physical or mental impairments defined above but is treated by a covered entity as having a substantially limiting impairment.(7)

Under the third test, individuals like Richard Martinez, who are HIV-negative but nonetheless regarded as having HIV, are protected under the ADA, just as HIV-positive people are.

Perceived impairment

Legislative history illuminates congressional intent regarding this third test. The House Report of the Judiciary Committee stated:

   A person would be covered under this test if an employer refused to hire
   ... that person because of a fear of"negative reactions" of others to that
   person. A person would also be covered if an entity perceived that the
   applicant had an impairment which prevented the person from working....

      [A] person who is rejected from a job because of the myths, fears, and
   stereotypes associated with disabilities would be covered under this third
   test, whether or not the employer's perception was shared by others in the
   field and whether or not the person's physical or mental condition would be
   considered a disability under the first or second part of the
   definition.(8)

The concept of "regarded as disabled" in the HIV/AIDS context is specifically addressed in the ADA's implementing regulations. The regulations state,

   An individual satisfies the third part of the "regarded as" definition of
   "disability" if the employer or covered entity erroneously believes the
   individual has a substantially limiting impairment that the individual
   actually does not have. This situation could occur, for example, if an
   employer discharged an employee in response to a rumor that the employee is
   infected with ... HIV. Even though the rumor is totally unfounded and the
   individual has no impairment at all, the individual is considered an
   individual with a disability because the employer perceived of this
   individual as being disabled.(9)

Given the clarity of the act, its accompanying legislative history, and supporting federal guidelines, many courts around the country have recognized that people who are regarded as having HIV are protected under the ADA, even though they are HIV-negative.

In DeFilippo v. GMRI, the plaintiff, an HIV-negative waiter, alleged that he was fired because he was perceived by his employer as having HIV. While the district court of the Eastern District of New York found that DeFilippo presented no evidence to support his claim of perception, in its analysis the court implicitly recognized that employment discrimination based on perceived HIV status is prohibited under the act.(10)

In Maples v. General Motors Corp., the plaintiff sued his employer under the ADA after suffering pervasive harassment, mistreatment, and abuse by coworkers because of his sexual orientation and their unfounded belief that he had AIDS.(11) Maples argued that he was subjected to a hostile work environment because he was perceived as having a disability and that the employer did not adequately address his repeated complaints of harassment.(12) The district court of the Eastern District of Michigan rejected the ADA claim because Maples alleged that only his coworkers, and not his employer, regarded him as having AIDS.(13)

In holding that the ADA does not protect against discrimination based on coworker perception of disability alone, the court relied on [sections] 12112(a) of the act, which sets out the act's "general rule": "[N]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."(14) A "covered entity" is defined under the ADA as an "employer, employment agency, labor organization, or joint labor-management committee."(15)

Since coworkers do not fall within the definition of a "covered entity," the court in Maples found that the plaintiff did not allege prohibited discrimination under the ADA and denied his perception-based claim.(16)

Association cases

The ADA's expansive protection also includes a prohibition against "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."(17)

The legislative history clearly explains this provision and the respective burdens of proof:

   This provision protects persons who associate with persons with
   disabilities and who are discriminated against because of that association.
   This may include family, friends, and persons who provide care for persons
   with disabilities....

      This provision applies only when the employer knows of the association
   with the other person and knows of that other person's disability. The
   burden of proof is on the individual claiming discrimination to prove that
   the discrimination was motivated by that individual's relationship or
   association with a person with a disability.

      For example, it would be [illegal] for an employer to discriminate
   against a qualified employee who did volunteer work for people with AIDS,
   if the employer knew of the employee's relationship or association with the
   people with AIDS, and if the employment action was motivated by that
   relationship or association.

      Similarly, it would be illegal for an employer to discriminate against a
   qualified employee because that employee had a family member or a friend
   who had a disability, if the employer knew about the relationship or
   association, knew that the friend or family member had a disability, and
   acted on that basis. Thus, if an employee had a spouse with a disability
   and the employer took an adverse action against the employee based on the
   spouse's disability, this would then constitute discrimination.(18)

Two cases have examined this protection in the HIV context. In Ennis v. National Association of Business and Educational Radio, Inc., the plaintiff's adoptive child had been diagnosed with HIV.(19) After suspension and, ultimately, termination from her job as a bookkeeping clerk, Ennis filed a discrimination suit against her employer under the ADA.

The suit alleged that the employer's conduct was motivated by Ennis's "known association with her disabled son."(20) Specifically, the suit claimed that the plaintiff's suspension and termination were prompted by the employer's desire to avoid the significant consequences the child's condition might have on company insurance rates. The Fourth Circuit recognized the validity of an association case under the alleged circumstances, but dismissed the case on factual grounds.(21)

In Saladin v. Turner, the plaintiff, a waiter, was suspended and later terminated for discussing at work his partner's AIDS status.(22) The employer told Saladin he was terminated because it was concerned that his living with someone with AIDS would disturb customers.(23)

Saladin filed suit under the ADA, and the district court of the Northern District of Oklahoma found that he established a prima facie case of discrimination because of association.(24) The court defined the prima facie case as one in which the plaintiff was in a protected class, the plaintiff was able to perform the essential functions of the job, and the employer terminated him because of his association with a person with disabilities.(25)

The court found that although the defendant stated a legitimate nondiscriminatory reason for its actions--that Saladin spoke at work about his partner's medical condition--the defense was pretextual and the association with a person with disabilities was the motivating factor in the suspension and discharge.(26)

The argument that the defendant fired Saladin to appease customers who had concerns about his association with someone with AIDS was also dismissed because "under the ADA effect may not be given to the public's fear or stereotypes."(27)

We are 18 years into the AIDS epidemic. HIV- and AIDS-related discrimination still occurs throughout the nation. Unfounded fears of contagion run rampant. Concerns about high medical costs have employers looking closely at the health of employees and their dependents.

Perhaps more time, continued public education about HIV, and greater sensitivity will help stem the tide of discrimination. In the meantime, the ADA may be the best tool to remind employers of their legal obligations in case they have forgotten their moral ones.

Notes

(1.) Richard Martinez's story is true, but his name has been changed to protect his identity. The AIDS Law Project of Pennsylvania filed a complaint with the Equal Employment Opportunity Commission (EEOC) on his behalf. The EEOC determined that the evidence established a violation of the ADA, and the parties have tentatively agreed to settle.

(2.) 29 U.S.C. [sections] 706, 42 U.S.C. [sub sections] 12101-12102, 12111-12117, 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 (1994).

(3.) 524 U.S. 624, 626 (1998).

(4.) CENTERS FOR DISEASE CONTROL & PREVENTION, AIDS INFORMATION: HIV/AIDS TRENDS 1 (DOCUMENT NO. 260210, 1998). The number of people with HIV is estimated because HIV is not a reportable illness in most states. See generally DAVID W. WEBBER, AIDS AND THE LAW [sections] 1.5, at 11 (3d ed. 1997).

(5.) 42 U.S.C. [sections] 12102(2)(C).

(6.) See H.R. REP. NO. 101-485, pt. 3, at 452 (1990); see also 28 C.F.R. pt. 36, app. B, at 584 (1998).

(7.) 29 C.F.R. pt. 1630.2(1) (1999); see also 28 C.F.R. pt. 36, app. B, at 584.

(8.) H.R. REP. NO. 101-485, pt. 3, 452-53.

(9.) 29 C.F.R. pt. 1630 app.

(10.) 10 F. Supp. 2d 245, 248 (E.D.N.Y. 1998).

(11.) No. 97-73524, 1999 U.S. Dist. LEXIS 7576 (E.D. Mich. Apr. 29,1999).

(12.) Id. at *1.

(13.) Id. at *21.

(14.) Id. at *18 n.5.

(15.) 42 U.S.C. [sections] 12111(2).

(16.) Maples, 1999 U.S. Dist. LEXIS 7576, at *21.

(17.) 42 U.S.C. [sections] 12112(b)(4).

(18.) H.R. REP. NO. 101-485, pt. 3, 461-62.

(19.) 53 F.3d 55, 56 (4th Cir. 1995).

(20.) Id. at 57.

(21.) Id. at 59-62.

(22.) 936 F. Supp. 1571, 1577, 1581 (N.D. Okla. 1996).

(23.) Id.

(24.) Id. at 1581.

(25.) Id. at 1580-81.

(26.) Id. at 1581.

(27.) Id.

Ronda B. Goldfein is a senior staff attorney with the AIDS Law Project of Pennsylvania, a nonprofit public interest law firm in Philadelphia. Sara Velazquez, a former Independence Foundation Fellow at the AIDS Law Project of Pennsylvania, is now an associate at Saul Ewing Remick and Saul in Philadelphia.