Tuesday, April 28, 2015

Asymptomatic HIV is a “disability,” no matter what one appellate court said

In Clayton v. Cleveland Clinic Foundation, an Ohio appellate court was faced with the issue of whether Ohio’s disability discrimination statute protects asymptomatic HIV as a “disability.” The court relied on the following exchange from the plaintiff’s deposition to conclude, wrongly, that the employee was not suffering from a protected disability.

Q. How does your HIV status impair you?

A. It doesn’t.

Q. All right. So you would say that it doesn’t substantially limit any of your activities of daily life?

A. No. Thank God. Praise him.

Q. When you were at the Cleveland Clinic Foundation, would you agree with me that you could perform all of your essential functions of being a housekeeper without any accommodations?

A. I was able to perform any duty without any accommodations.

Let’s start with the basics. Even before Congress amended the ADA in 2009 to liberalize the statute’s definition of “disability,” the law recognized and protected asymptomatic HIV as a disability. The United States Supreme Court said as much as far back as 1998, in Bragdon v. Abbott:

In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.

The Clayton court was not only wrong about whether HIV qualifies as a disability, but also on the interplay between a disability and a reasonable accommodation. One has a “disability” if one has a a physical or mental impairment that substantially limits a major life activity, period. For the ADA to further protect that individual on the basis of that disability, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. The determinations, however, are separate and distinct from each other. The essential function analysis has zero impact on whether one suffers from a protected disability as a threshold issue.

By conflating these two tests, this court set a dangerous precedent. Make no mistake, asymptomatic HIV is a disability. If an employee presents with HIV (or some other systemic illness), assume that the ADA covers the employee, and shift the analysis: 1) to ensure that the employee receives a reasonable accommodation if necessary to perform the essential function(s) of the job; and 2) to ensure that no one treats the employee differently because of the disability or some (mis)perception about the disability.