It's growing! - expansion of Americans with Disabilities Act of 1990

The Americans with Disabilities Act has been expanded to cover more conditions, courtesy of a recent decision by the U.S. Supreme Court.

This summer, the U.S. Supreme Court took its first stab at defining the types of conditions protected by the Americans with Disabilities Act (ADA). Employers may not like the result.

The high court's ruling in Bragdon vs. Abbott (97-156), involved a dispute between a dentist and a patient with asymptomatic HIV. Although it was decided under the "public accommodation" portion of the ADA (Title III), it is equally applicable to the ADA's employment provisions (Title I) because the definition of disability is the same under both provisions.

The dispute started in 1994, when Sidney Abbott visited the Bangor, Maine, dental offices of Dr. Randon Bragdon for a checkup. Abbott had tested positive for HIV several years earlier but was still asymptomatic; she disclosed her HIV status on the patient registration form she filled out in Bragdon's office.

When Bragdon discovered that Abbot had a cavity, he informed her of his policy against filling cavities of patients with HIV in his office. He offered to fill the cavity at a local hospital. Although he would not charge Abbott any additional fee, he told her that she would be responsible for any fees the hospital might charge for use of its facilities.

Abbott declined and filed suit in U.S. District Court in Maine. She claimed that Bragdon had discriminated against her on the basis of her disability, asymptomatic HIV, by refusing to fill her cavity in his office. The District Court, and later the U.S. 1st Circuit Court of Appeals, ruled in Abbott's favor.

Bragdon appealed to the U.S. Supreme Court, which also ruled in Abbott's favor. The court held that even though her HIV was asymptomatic, she was still disabled within the meaning of the ADA.

Specifically, the court found that Abbott's asymptomatic HIV substantially limited her in the major life activity of "reproduction and the sexual dynamics surrounding it." The court stated that it was not ruling that asymptomatic HIV is automatically considered a disability. (Presumably, individuals who have asymptomatic HIV but whose ability to reproduce was already affected by some factor unrelated to the disease would not be protected by the ADA.) However, the court did warn that asymptomatic HIV may well substantially limit other major life activities besides reproduction. The court, though, declined to speculate what those major life activities might be.

The Bragdon case is unique in that it is the first time the Supreme Court has interpreted the ADA's definitions of "disability" and "major life activity." These terms are important because the ADA protects only employees who are disabled. A disability is defined as a condition that affects a "major life activity." Previously, lower courts were split as to whether reproduction constitutes a major life activity.

As a whole, however, the lower federal courts had interpreted the definitions of disability and major life activity very narrowly. Thus, the Supreme Court's willingness to expand those definitions to cover reproduction and asymptomatic HIV may send a message, rightly or wrongly, to lower courts that they should interpret the ADA more expansively.

In response to the Bragdon decision, employers must consider the following:

* What other medical conditions might now he considered disabilities pursuant to the court's reasoning in Bragdon?

* What other new major life activities might be looming on the horizon?

* What affirmative responses must an employer take to minimize its risk of unintentionally violating the ADA?

OTHER MEDICAL CONDITIONS

It may take years for the federal courts to define the exact parameters of the impact of the Bragdon decision; however, most employers can't wait that long to determine how to react. So, here are some educated speculations that may help employers anticipate what medical conditions could be considered disabilities under the Bragdon ruling.

Asymptomatic HIV. Bragdon dealt with the specific issue of whether a female of childbearing age was disabled due to the substantial limitation that asymptomatic HIV placed on her ability to reproduce, as well as the sexual dynamics surrounding it. Most likely, males who would otherwise be able to reproduce-but have asymptomatic HIV-would also be deemed disabled.

An issue still unresolved after Bragdon, though, is whether people with asymptomatic HIV who are biologically incapable of having children, or who have undergone voluntary sterilization procedures, would be considered disabled. For example, neither a postmenopausal female nor a male who has had a vasectomy would be capable of reproduction, regardless of whether they were HIV-positive. (Although, in theory, any vasectomy can be reversed, the odds of a successful reversal are small. Thus, a male who has had a vasectomy should be considered unable to reproduce.)

Whether or not persons who are physically incapable of reproduction will be considered disabled is still somewhat in doubt. However, given the Supreme Court's warning that courts could find that asymptomatic HIV substantially impairs major life activities other than just reproduction, employers should consider all employees with asymptomatic HIV as disabled.

Infertility. As with asymptomatic HIV, medical conditions causing infertility would seem to clearly and substantially impair the major life activity of reproduction. Thus, women who are infertile or men who are impotent or sterile due to medical or psychological conditions are likely to be considered disabled by the courts. Similarly, females who have medical conditions that make it medically unsafe for them to bear children also would likely be considered disabled.

As a result, the Bragdon decision could have far-reaching effects. For example, suppose that an otherwise healthy female develops ovarian cancer and has her ovaries removed. After a brief recovery period, she returns to her former active, unrestricted life. She is not limited in any way, except that she is now infertile. Although most employers would not consider this woman "disabled," and perhaps she would not consider herself disabled, Bragdon seems to make clear that she would be disabled within the meaning of the ADA.

Sexually transmitted diseases. Bragdon's holding that reproduction and the sexual dynamics surrounding it are major life activities opens the door to the possibility that serious, long-term, sexually transmitted diseases may be considered disabilities. The most obvious example (other than HIV or AIDS) is herpes, a condition that is permanent and substantially limits the sex lives of those who have it.

Furthermore, as with asymptomatic HIV, herpes could be transmitted to a partner during the act of procreation, and it also could be transmitted to a baby during childbirth. Thus, like asymptomatic HIV, serious, long-term, sexually transmitted diseases could be considered disabilities under the ADA.

Latent hereditary diseases or conditions. HIV is certainly not the only disease that has a latent or dormant stage and can be transmitted to an infant. Many genetic, transmittable and ultimately fatal diseases can be detected through medical testing before any symptoms ever arise. Furthermore, as genetic technology advances, an increasing number of such diseases will become detectable prior to the onset of any symptoms. If males or females who are otherwise capable of reproduction choose to forego having children because they learn they have such a disease or have the genetic structure that can be passed on to their children, they could be considered disabled under the Bragdon analysis.

One condition likely to be deemed a disability under Bragdon is asymptomatic Huntingdon's disease. As with HIV, individuals with Huntingdon's disease may exhibit no symptoms at the time of diagnosis and may remain asymptomatic for a number of years. However, Huntingdon's disease, like HIV, likely will result in death within a given range of years. Also, the disease can be inherited by children. Thus, conditions such as asymptomatic Huntingdon's disease could be likely to be considered disabilities following Bragdon.

'NEW' MAJOR LIFE ACTIVITIES

Some might argue that the high court's decision in the Bragdon case is not very controversial. Since the passage of the ADA, the Equal Employment Opportunity Commission (EEOC) has argued that asymptomatic HIV is a disability. So, on its face, the Bragdon decision appears merely to agree with the EEOC's view.

However, the court actually expanded the EEOC guidelines because it concluded that reproduction and the sexual dynamics surrounding it are major life activities. The EEOC's guidelines did not list reproduction among its nonexhaustive list of major life activities.

Furthermore, lower federal courts were sharply divided over whether to accord reproduction the status of a major life activity. Thus, although the Supreme Court did not pull the idea of reproduction as a major life activity out of thin air, it did grant legal status to a controversial life activity.

Other similarly controversial activities that the Supreme Court or lower federal courts may accord major life activity status to in the future include:

Caring for others. In Bragdon, Abbott argued that because she had a terminal condition, it was unlikely that she would live long enough to raise a child. Although the court did not hold one way or the other that caring for a child or others is a major life activity, future plaintiffs will almost certainly argue that it should be considered one. Employees who forego having children-or who have children whom they may be unable to care for in the future - due to a fatal disease, could be covered by the ADA. What's more, these individuals could be deemed protected by the law even if they demonstrate no serious symptoms and if the disease is in its infancy.

Interacting with others, sleeping and concentrating. The EEOC's Enforcement Guidance on the ADA and Psychiatric Disabilities lists several fairly novel activities as major life activities, including the ability to interact with others, sleep and concentrate. The Supreme Court's willingness to adopt new and controversial major life activities increases the likelihood that the activities listed by the EEOC may be adopted by federal courts.

This would have an enormous impact on employers. For example, suppose an employee has a medically diagnosed condition of minor, long-term anxiety. The employee performs well on the job and functions normally in society. However, without medication, the mild anxiety prevents him from sleeping more than a few hours each night. According to the EEOC, such a person would be substantially limited in the major life activity of sleeping and, hence, disabled.

The Bragdon case increases the that federal courts could a position.

EMPLOYER RESPONSES TO BRAGDON

Employers should take several affirmative responses in light of Bragdon to help ensure that they do not violate the ADA.

When in doubt, assume employees will consider their conditions to be a disability. The court's broad interpretation of disability in Bragdon creates the possibility that lower courts will routinely consider other medical conditions to be disabilities. To protect themselves, employers should resolve all doubtful situations by being willing to talk to employees and determine if a condition is a disability.

This does not mean employers should begin seeking medical information about employees or asking employees if they are disabled. Employees are still responsible for informing employers about a need for accommodation due to a disability.

It does mean that employers must be more willing to begin the accommodation process and respond to all employees who identify themselves as disabled. In such cases, employers can ask for medical information and opinions from an employee's medical provider.

Be aware of ADA obligations. Once an individual is deemed disabled, the ADA requires that employers avoid discriminating against that employee, offer reasonable accommodation and keep the employee's medical records confidential. Employers must fully understand and comply with each of these obligations.

Update job descriptions. It is unlawful to discharge employees because of their disabilities. However, if a disabled employee cannot perform the essential functions of a job even with reasonable accommodation, the employee may be lawfully discharged.

For this reason, employers must have up-to-date job descriptions that accurately and realistically reflect the physical and mental duties of each position. Job duties should be listed in descending order of importance, with the most important at the top and the least important at the bottom.

Base decisions on objective medical evidence. In Bragdon, the dentist argued that he was not liable for violating the ADA because his actions were based on a belief that treating the plaintiff in his office would increase his chances of contracting HIV from her.

The court rejected that argument, holding that any adverse treatment of a disabled individual because of his or her disability is only lawful if based on objective medical evidence. Thus, employers must base decisions to take adverse job actions against disabled employees on the best available objective medical evidence, or the lack of medical evidence confirming the existence of a disability. Employers should not base their decisions on subjective fears or prejudices.

Educate employees. Employees understandably may be apprehensive about working side by side with coworkers who have serious transmittable diseases. Generally, work environments that involve casual social contact among employees are at a very low risk for disease transmission. Therefore, the health threat to other employees is negligible. Indeed, the ill employee is often the one at greater risk from catching something from others.

Supervisors and employees should be educated about these facts and trained in universal precautions for minimizing risks of disease transmission. A good starting point for researching and developing such training is the blood borne pathogen rule promulgated by the Occupational Safety and Health Administration.

Closely watch future court decisions. It will be up to lower courts to clarify and establish the parameters of the Bragdon decision. Therefore, employers must keep up-to-date on future court decisions interpreting the ADA's disability and major life activity definitions.

For links to resources on the World Wide Web concerning HIV/AIDS, including a workplace tool kit developed by the Society for Human Resource Management and the National AIDS Fund, see the HRMagazine section of SHRM Online (http://www.shrm.org).

Timothy S. Bland, PHR, is a management attorney with the Memphis, Tenn., office of McKnight Hudson Ford & Harrison LLP.

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