The Washington Blade - Friday, April 30, 1999
Lisa Keen

The law -- the Americans with Disabilities Act -- prohibits discrimination based on someone having a disability, having a record of a disability, or being regarded as having a disability, including infection with HIV. The three cases the court heard this week did not deal specifically with HIV infection or AIDS, but the discussion sometimes did, and the court's eventual decisions could very well have an impact on how well the law protects people with HIV.

"The cases are critical to coverage of people with disabilities generally and, if coverage gets restricted, there's very little people with HIV or AIDS can do to escape at least some of that harm," said Chai Feldblum, a Lesbian activist who helped draft the legislation in 1990.

Feldblum, who is a professor of law at Georgetown University, noted that the Supreme Court's ruling in another ADA case, last year, did preserve protections for people with HIV under the law, to some extent. That ruling, in Bragdon v. Abbott, stipulated that HIV infection -- even before symptoms appear -- substantially limits a person's ability to reproduce. A key definition under the ADA is that a disability is an impairment that "substantially limits" a major life activity. Reproduction, said the court, is a major life activity and HIV infection substantially limits that.

But in the three cases heard this week, the court was examining other activities and whether an impairment is still an impairment if some corrective measure -- such as medication or eyeglasses -- stops that impairment from substantially limiting some major life activity for that person. The cases -- Murphy v. UPS, Sutton v. United Airlines, and Albertsons v. Kirkingburg -- dealt with a truck driver taking medication for high blood pressure, two airline pilots wearing corrective lenses for myopia, and a truck driver who has been able to adapt to having eyesight in only one eye.

But during oral arguments in two of the three cases, the discussion included hypothetical situations involving people with HIV. And, Feldblum noted, the court could rule in such a way that a person with HIV who is taking medication would no longer be considered a person with a disability, with regards to activities other than reproduction.

"If a person with HIV wants to show he or she is limited in their walking, lifting, or doing any type of physical activity if they don't take their medication," said Feldblum, "these cases might conclude that the court will look at person's capacity after taking medication. And many people with AIDS or HIV might not be considered substantially limited [in performing these other activities] after taking their medication."

"To me," said Feldblum, "it's absurd to consider mitigating measures [such as medications] because the law was meant to protect people who are able to work and function despite their disability. One of the ways people are often able to function is because of medication."

Feldblum said that, when Congress was drafting the ADA in 1990, there had never been a case in which an employer had attempted to argue that a person with an impairment was not disabled because he or she took medication or other corrective measures to alleviate the impairment.

"So it never occurred to advocates such as myself [who worked on ADA] that a person's taking insulin for diabetes or AZT for HIV should matter in deciding whether that person had a disability. We never even considered it because no case under the existing law [concerning disabilities -- the federal Rehabilitation Act] on which ADA was patterned, had ever come up. Never happened."

But after ADA passed, said Feldblum, attorneys for employers "started picking away at the language of the statute, and they may have found a gold mine."
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