But what hasn’t been much publicized is the logic behind the ruling. The court’s reasoning expanded coverage of the Americans with Disabilities Act (ADA) to employees who are having difficulty conceiving children—a much larger number.
Timothy S. Bland, an attorney with employment-law firm McKnight Hudson Ford & Harrison LLP in Memphis, Tennessee, explains how the ruling has changed things for everyone.
Can you explain the Bragdon vs. Abbott case?
Bragdon vs. Abbott wasn’t necessarily a prominent case in the lower courts, but this is the first case in which the U.S. Supreme Court has ruled on how the definition of disability under the ADA should be interpreted.
The case involved a female plaintiff, Sidney Abbott, visiting her dentist [Randon Bragdon, DMD] for a checkup. Prior to the checkup, she disclosed on her patient registration form that she had HIV. At the time, her HIV was asymptomatic—she exhibited no symptoms. During the checkup, the dentist found a cavity and told the patient that he had a policy against filling cavities of HIV-infected people. He offered to perform the work at a hospital with no additional fee for his services, but the patient would be responsible for the cost of the hospital’s facilities.
Abbott didn’t want to do that, and eventually sued the dentist under the ADA, saying the dentist’s refusal to treat her in his office violated the ADA’s public-accommodation provisions. Those provisions prohibit discrimination against any individual, on the basis of a disability, in enjoyment of services of any place of public accommodation by any person that operates such a place.
One of the specifically defined public-access places is the professional office of a health-care provider, such as a dentist. The plaintiff argued that HIV is a disability, even if it’s asymptomatic.
What was the Supreme Court ruling
The decision was split 5 to 4 that HIV is a disability. The dissenters are people you’d probably expect to dissent, the more conservative members: Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia, Clarence Thomas and Sandra Day O’Connor dissented on part. The key Justice in this decision was Anthony M. Kennedy, who wrote the opinion for the majority. He’s one who tends to be fairly conservative, but this time, he sided with what you’d consider the more liberal members of the court—that HIV, even asymptomatic HIV, is considered a disability and as such is covered by the ADA.
Was that a big question before?
I think everyone was in agreement that full-blown AIDS was a disability under the ADA, but there was a question about the status of people with asymptomatic HIV because they carry on normal lives as far as their ability to work and carry on other life activities. There was some thought that they wouldn’t qualify for disabled status under the ADA.
As far as advising clients on how to treat people with HIV, we generally took a conservative approach and told our clients to assume these people were disabled. But after the fact, once litigation got started, management lawyers were making the argument that people without full-blown AIDS weren’t disabled because they could perform all the life activities anyone else could perform.
So on what basis was the decision made that HIV was a disability?
It was entirely based on reproduction. The argument was that because Abbott’s HIV prevented her from having children [based on the court’s opinion that it’s medically inadvisable for people with HIV to reproduce because of the risk of passing the virus to the child], this is a disability.
Before, there was an issue as to whether reproduction would be considered a major life activity. Under the old Rehabilitation Act, which preceded the ADA, some courts had held reproduction was a major life activity. Since the passage of the ADA, some lower courts were split on the issue, so the Supreme Court came out and said reproduction is a major life activity.
What was the dissent based on?
For one, Justice O’Connor didn’t believe that reproduction rises to the status of a major life activity, such as examples given by the regulations of the ADA.
She said she believed that although reproduction is certainly important in the lives of many people, it’s not the same as walking, hearing, seeing and speaking. There are millions of people who live perfectly normal lives who’ve never reproduced, but there aren’t too many people who live normal lives who can’t breathe on their own. That’s the distinction she found, and also the distinction that other dissenters cited as well.
The basis for the ruling certainly has larger implications.
That’s exactly the point many people are making—now that reproduction is a major life activity, you have couples who are infertile, and they’re impaired in a major life activity, just as the plaintiff was.
So if you’re following the reasoning of the decision, employers subject to the ADA will have to let employees off work for treatment for infertility. [This ruling] has a huge implication because it has opened up the possibility of a whole new class of disability.
Is that true, even though it was a public-access case rather than an employment-law case?
Although the Bragdon decision was made under the ADA public-accommodation provisions, the definition of disability under the ADA is the same [in both cases]. So it has equal significance to the employment area.
What has this ruling changed for employers?
The ruling has several significant points for employers. The first is an obvious one. Employers that weren’t already doing so now need to assume that everyone with HIV is disabled. The court stopped short of saying HIV per se is a disability—but when you think about it, under the court’s reasoning, there aren’t many circumstances in which HIV wouldn’t be.
Under which circumstances might HIV not be considered a disability?
The only situation I can think of in which it might not be is a case in which a post-menopausal woman contracts HIV. She doesn’t have the biological capacity to reproduce, so it’d be hard to say HIV interferes with her major life activity of reproduction.
But even that person may be covered under the ADA; the Bragdon court said it wasn’t ruling on what other major life activities HIV might have an impact on. It said there are other major life activities that may be affected, but the only one argued in this case is reproduction, so the court reserved ruling on that. Until we get further guidance, employers need to treat everyone with HIV as disabled.
What are the other major impacts?
The court made it clear that anyone who’s going to take any kind of adverse action against an employee—or in this case, a patient—based upon that person’s disability, will have to back up that decision with objective scientific evidence.
The Bragdon case is a good example. The dentist argued that he believed in good faith that by treating the patient in his office, he had a greater risk of contracting the HIV virus—that in good faith he needed to treat her in a hospital. The court said good faith is not enough; he needed to present objective scientific proof that she posed a more significant risk to his health in treating her in his dentist office.
How does that translate to employers?
What this says to employers is that they can’t make decisions about employees with disabilities based on unfounded fears of them either hurting themselves or posing health and safety risks to other employees. They’re going to have to have some medical evidence to back that up.
We get questions all the time from people in manufacturing environments, where they find out an employee has HIV or AIDS and they say it’s common for employees to get cut and bleed, and for other employees to rush and help their fellow workers. They’re afraid that if a person who has HIV or AIDS gets cut and employees try to help, it will pose a health and safety risk to them.
Now, just that concern in good faith on the part of employers isn’t enough—they need scientific evidence the [infected] person poses danger in the workplace. OSHA has a blood-borne pathogen rule that tells how to respond to a situation in which someone is cut in the workplace, and it’s a universal precaution, so you’re required to treat everyone as if they have HIV. In that kind of example, that’s probably not a legitimate fear on the part of employers.
Will this ruling allow for more cases under the ADA?
The Supreme Court took what everyone considered a very broad meaning of disability. [Before this case,] the lower courts primarily had a very conservative approach to defining what is and isn’t a disability. A lot of employers had ADA cases dismissed on summary judgments on the grounds that the court found the individual wasn’t disabled. If the lower courts take the Bragdon decision to heart, we may see them determining disabilities more broadly—and we may see fewer summary judgment motions granted in favor of employers in ADA cases.
How should employers treat employees who are having fertility problems?
Until further guidance from courts, employers need to treat those people as if they’re disabled under the ADA. If infertile people are seeking medical treatment to enable them to have children, employers may have to reasonably accommodate them by giving them time off work for treatment. To be safe, treat those people as disabled, as well—male or female.