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Article Excerpt
I. INTRODUCTION
It has become standard form, indeed borderline cliche, to open discussions regarding the American with Disabilities Act ("ADA") (1) with the words of President George H.W. Bush as he signed the legislation into law. (2) To hedge against the risk of being too iconoclastic--contrary to what ensues--this commentary will follow suit:
[The ADA] signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life. As the Declaration of Independence has been a beacon for people all over the world seeking freedom, it is my hope that the Americans with Disabilities Act will likewise come to be a model for the choices and opportunities of future generations around the world. (3)
However, as the number of individuals with HIV around the globe continues to grow, (4) one inescapable truth continues to dim the brightness of the ADA's domestic and international impact: namely, the ADA, as enforced by American courts, has never adequately protected HIV positive individuals from unjustified discrimination and exclusion from mainstream American life. American courts have formed barriers to protection for HIV positive individuals, contrary to the plain meaning and legislative intent of the statute. The main barrier has been a shrinking definition of who is disabled. Specifically, despite initially being hailed by some as advancing the rights of people with HIV/AIDS under the ADA, the Bragdon v. Abbott (5) decision by the Supreme Court did not go far enough. In favor of people with HIV/AIDS, the Court did rule that HIV, even when asymptomatic, constitutes an impairment under the ADA. (6) The Court also held that reproduction was a major life activity that HIV substantially limited. (7) However, perhaps because it was endeavoring to walk too fine a line between providing protection and appeasing the strict textualists, the Kennedy majority opinion did not determine that HIV/AIDS was a per se disability under the ADA. As a consequence, Bragdon left open a fair amount of latitude for courts to determine whether a major life activity was being limited and, thus, a fair amount of latitude on whether a person was disabled. Not missing a beat, courts have taken advantage of that latitude to continually shrink the definition of "disabled" and the scope of the ADA's application. (8) This note argues that the only way to adequately ensure that all people with HIV/AIDS are adequately protected from discrimination is for the courts to rule, or Congress to clarify, that HIV/AIDS is a per se disability under the Americans with Disabilities Act--as it was intended to be.
Part II of this note will provide a primer on the ADA and its requirements with respect to the definition of "disabled." Part Ill will discuss the Bragdon decision, its advances, and its shortcomings. Part IV, the crux of the argument, will address how a per se disability interpretation of the ADA is more consistent with the plain language, legislative history, administrative regulations, and prior legal history of the ADA. Part V argues that a per se disability interpretation makes the most sense from a policy perspective, a practical perspective, and provides built-in checks to prevent a per se disability interpretation from allowing a flood of frivolous litigation.
II. OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT
As indicated by President Bush's prophetic language, the ADA was intended to usher in dramatic societal change aimed at enabling the achievement of economic autonomy and social equality for the disabled. (9) Congress' own sentiments regarding the purpose and the importance of the Act are no less charged. Invoking the "sweep of its congressional authority," (10) Congress states that the purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (11) Specifically, the ADA prohibits discrimination against individuals with disabilities by employers (Title I), public entities (Title II), and places of public accommodation (Title III).
The definition of who is disabled is the same for all three provisions. According to the definitions section of the ADA, "[t]he term "disability" means, with respect to an individual--(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." (12) Hence, to be considered disabled under the Act and thus able to access its protections, a person must satisfy three criteria with respect to subsection (A). They must (1) have an impairment (2) that substantially limits (3) a major life activity.
However, nowhere does Congress define what constitutes a major life activity--the third element. That said, much can be gleaned regarding its intended scope from the ADA's precursor, the Rehabilitation Act of 1973, (13) and the ADA's implementing regulations. The Rehabilitation Act's regulations give a non-exhaustive, yet broad, list of examples of major life activities which include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." (14) This is significant because Congress, knowing that its Rehabilitation Act had been implemented and interpreted as such by the agencies charged with its enforcement, used the same defining language in both the Rehabilitation Act and the ADA. (15) This repetition is important because it demonstrates the sanctioning of the broad interpretation and implementation by the pre-ADA implementing agencies. (16) Additionally, the ADA regulations enacted by the Equal Employment Opportunity Commission ("EEOC") and Department of Justice ("DOJ") adopt the same non-exhaustive list of major life activities. (17) Indeed, motivated by a desire to ensure that the Rehabilitation Act and its accompanying regulations and jurisprudence were not chipped away at by the courts, Congress specifically commanded the courts not to apply a lower standard than was applied under the Rehabilitation Act. (18)
Further, as will be outlined more fully in part IV, it seems fairly evident both from the legislative history and the Rehabilitation Act case law that HIV/AIDS was intended to be considered as a disability across the board. (19) However, in Bragdon and even more so in the cases that have followed, American courts have turned a blind eye to the relatively clear instruction from Congress to apply the ADA in a no less exacting, protecting fashion than the Rehabilitation Act and to include HIV/AIDS as a disability.
III. BRAGDON V. ABBOTT, ITS ADVANCES, AND ITS SHORTCOMINGS
The Supreme Court's only decision on what constitutes a major life activity within the context of HIV/AIDS was Bragdon v. Abbott, a Title III case in which the dentist of an HIV positive, but asymptomatic, plaintiff, Sidney Abbott, would only treat her in a hospital and if she bore the additional expenses. (20) Abbott brought suit under Section 12182(a) of the ADA alleging discrimination based on her HIV status.
The main issue in contention was whether Abbott had a protected disability. To determine this, the Court rightly looked to section 12102 (2) which, again, defines "disability" as a physical or mental impairment that substantially limits a major life activity. (21) With regard to the first element of impairment, the Court relied heavily on the Department of Health, Education and Welfare ("HEW") regulations interpreting the Rehabilitation Act which, as the Court notes, "appear without change in the current regulations issued by the Department of Health and Human Services." (22) Those regulations define "physical or mental impairment" as "(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, genitor-urinary; hemic and lymphatic; skin; and endocrine." (23) The Court noted that in issuing these regulations the HEW, and later the DOJ, did not list any specific disorders to avoid the impression that if not specifically enumerated, a certain impairment was not included. (24) Even so, the commentary accompanying the regulations does contain a vast representative list ranging from heart disease to alcoholism. (25)
The Court, relying on these regulations as nearly dispositive of the meaning of...
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