American University Law Review
December, 1999
COMMENT
Beyond 43 Million: The "Regarded As" Prong of the ADA and HIV Infection--A Tautological ApproachBrian K. Esser*
INTRODUCTION
On March 30, 1998, the United States Supreme Court heard oral arguments in Bragdon v. Abbott, the Supreme Courts first case in which Acquired Immunodeficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) were issues before the Court. On April 13, 1998, a judge in the Western District of Wisconsin decided a motion for summary judgment in United States v. Happy Time Day Care Center that demonstrated a loophole in the Supreme Courts then-unannounced decision in Bragdon. The issue before both courts was whether asymptomatic HIV infection is a disability for purposes of the Americans with Disabilities Act of 1990 (ADA).
Both courts held that HIV could be a disability for the purposes of the ADA, but for markedly different reasons. These differing reasons arise because of the dissimilarities between the plaintiffs. The Supreme Court in Bragdon involved a woman of child-bearing age; the district court in Happy Time Day Care involved a three-year-old boy. The Supreme Court in Bragdon found that the plaintiff was substantially limited in her major life activity of reproduction. The district court in Happy Time Day Care could not consider this argument?three-year-old boys do not reproduce. Thus, the district court was forced to examine other major life activities affected by the boys HIV infection and consider other theories of disability to determine whether the boy might be disabled for purposes of the ADA.
Using the maxim that similar cases should be treated similarly and dissimilar cases should be treated differently, is it appropriate that asymptomatic HIV plaintiffs must rely on differing theories of disability for ADA protection? This Comment argues that it is not appropriate. Although different, the two plaintiffs share one overarching commonality: they were both the victims of discrimination on the basis of their HIV infection. If the plaintiffs allegations are true, the defendants in both cases allowed HIV infection to influence their decision about offering public accommodations to the plaintiffs, thus engaging in discriminatory activity. These cases are alike and should be treated similarly.
By failing to treat HIV infection as a per se disability, the Supreme Court sanctions the unequal application of the ADA to HIV-infected individuals by the lower courts. The Bragdon decision could allow some courts to treat reproduction as the only major life activity affected by HIV infection. This could foreclose the litigation of other, novel major life activities. Ironically, the Bragdon decision could have the paradoxical effect of prohibiting discrimination against some HIV-infected individuals who are disabled while failing to protect HIV-infected individuals who are not disabled from discrimination based on age, sexual orientation, or reproductive dysfunction. To avoid these uncertainties, future plaintiffs should abandon the manipulable language of the actual disability prong of the ADA in favor of uniform treatment of HIV infection under the regarded as prong.
The regarded as prong of the ADA clarifies as discrimination any instance in which a disease or physical impairment, whether real or imaginary, limiting or not limiting, is a factor in the decision-making processes of an employer or a public or private accommodation. The regarded as prong of the ADA creates a tautology whereby the protections of the statute are triggered by the offense itselfthe act of discriminationand not because the victim happens to meet some particular criterion.
Part I of this Comment outlines the origins and basic provisions of the ADA and gives a critical analysis of Bragdon v. Abbott. Part II examines why the court in the Western District of Wisconsin was unable to find the plaintiff disabled under the actual disability prong, and identifies other actual and potential plaintiffs for whom the Supreme Court decision in Bragdon is not a solution. Part III discusses societys past and present responses to the HIV disease and the AIDS epidemic and how these responses can be applied to the regarded as prong of the ADA. Part IV examines the regarded as prong of the ADA in more detail and proposes it as a solution to the problems faced by the district court in Happy Time Day Care?problems that plaintiffs will need to contend with in the future.
* Note & Comment Editor, American University Law Review, J.D. Candidate, May 2000, American University, Washington College of Law; B.A., 1997, Northwestern University. I would like to thank Michele Zavos for her encouragement, assistance, and inspiration. I would also like to thank Professor Peter Cicchino, for reading early drafts and for his incredible influence on me both personally and professionally; Professor Chai Feldblum; my parents, Paul and Carol Esser, and my siblings, Jeff, Carla, and Scott, for their constant love and support; and finally, Ana, Dan, Dolly, Ellie, Jonathan, Laurie, Leticia, Nicole, Rose, Sean, Shana, and Wehtahanah for being there.