HIV Litigation and Policy: Some Thoughts on Future Ground
Catherine Hanssens
The Center for HIV Law & Policy
New York, New York
www.hivlawandpolicy.org
chanssens@hivlawandpoolicy
As with the Sutton trilogy of U.S. Supreme Court cases, many of the cases that pose challenges and possibilities for HIV positive plaintiffs do not specifically involve HIV or AIDS. This outlines reflects that, and suggests that it is important to track non-HIV cases for potentially analogous fact patterns and strategies.
I. Defining Disability under the ADA -- Can “Regarded As” Be Resuscitated?
A. Reliance on reproduction is a continuing problem: Worster v. Carlson Wagon Lit Travel, Inc., 353 F. Supp. 2d 257 (D. Conn. 2005), aff'd on other grounds, 2006 WL 328289 (2d Cir. Feb. 13, 2006) (unpublished). The court granted summary judgment against the HIV-positive plaintiff, concluding that he failed to provide evidence that having HIV caused him to be substantially limited in the major life activities of reproduction or sexual activity, having testified that he had no plans to have children. “In the absence of any specific evidence that plaintiff's alleged disability, rather than other factors, circumscribed reproduction, the plaintiff has failed to demonstrate that the impairment significantly restricted his ability to reproduce.”
B. In Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995), Judge Posner observed that the “regarded as” prong of the ADA’s disability definition…
“… although at first glance peculiar, actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.”
C. Yet, to prevail under the "regarded as" prong of the ADA, a plaintiff typically has been required to show more than that a defendant regarded that person as somehow disabled; the plaintiff must show that defendant regarded individual as disabled as courts have defined disability for purposes of ADA coverage. See, e.g., Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004).
1. A number of courts now have concluded that an employee is regarded as disabled under the ADA only when an employer misinterprets information about an employee's limitations to conclude that the employee is incapable of performing a wide range of jobs. E.g., E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2d Cir. 2003). In short, if an employer only mistakenly believes the employee is unable to perform the single job for which she is applying, then the employer does not "regard" the employee as disabled, within the meaning of the ADA.
2. The Sixth Circuit, however, appeared to change course in a 2006 decision, Todd v. City of Cincinnati, 436 F.3d 635 (6th Cir. 2006). In this case, the Sixth Circuit did not require a showing that the employer regarded the employee as being unable to hold a class of jobs or broad range of jobs to avoid summary judgment; two supervisors’ negative comments about the plaintiff's ability to perform the job of a firearms instructor created a sufficient issue of material fact to preclude summary judgment. The Sixth Circuit found this evidence, by itself, sufficient to create an issue of fact on the question of whether the City “regarded” Mr. Todd as disabled. Prior to the Todd case, the Sixth Circuit had consistently held that an employer does not “regard” an employee as having a disability unless the employer perceives the employee’s impairment as substantially limiting one or more major life activities; and that they are not regarded as substantially limited in the major life activity of “working” if impairment prevents them from performing only the requirements of a single job that the employee or applicant wants.
D. Along the lines of the Todd decision…name calling can be a basis for establishing that your client is regarded as disabled:
1. E.E.O.C. v. E.I. Du Pont de Nemours & Co., 480 F.3d 724 (5th Cir. 2007). The plaintiff, a chemical plant lab clerk, had a severe walking impairment. The plaintiff's supervisor commented that he no longer wanted to see her “crippled, crooked self going down the hall hugging the walls.” The defendants’ expression of this sentiment was not alone sufficient; the plaintiff also introduced evidence demonstrating that because every position at the plant involved some walking, the defendant restricted the plaintiff from all jobs. (After a three day trial, the jury found that Du Pont had discharged the plaintiff in violation of the ADA and awarded her $91,000 in back pay, $200,000 in front pay, and $1,000,000 in punitive damages. The court later reduced the punitive damage award to the statutory cap of $300,000.)
2. Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006). The court upheld a jury verdict in favor of a discharged Postal Service window cashier with severe depression who brought a claim under Section 501 of the Rehabilitation Act of 1973 for disability-based hostile work environment harassment, holding that a reasonable jury could have found that the employee was “regarded as” having a disability. There was evidence that two different supervisors each stated on several occasions that because the plaintiff was under psychiatric treatment, he was a security risk at the Post Office. A third supervisor called him “crazy” five to seven times a day and told him that he “should not be working” at the Post Office.
E. The EEOC successfully navigated these choppy waters on behalf of an employee with hepatitis C in EEOC v. Heartway Corp., 466 F.3d 1156 (10th Cir. 2006), where the court agreed that EEOC had made the case that Heartway regarded her as disabled and fired her for that reason. A reasonable jury, the court reasoned, could have concluded that Heartway regarded Edwards, the employee, as being restricted in her ability to perform any kitchen job as well as any other job where there was a chance of bleeding due to the threat of transmitting the disease.
1. The case illustrates what’s involved in successfully dealing with the “broad range of jobs” requirement in a “regarded as” employment discrimination case:
“To demonstrate that Heartway regarded Edwards as limited in working, the Commission presented evidence of her job duties, expert testimony relating those job duties to the classes of jobs from which Edwards would be disqualified by Heartway's perception, and evidence of Townsend's views of Edwards' inability to perform these classes of jobs. Edwards' duties at Heartway required knowledge, skills or abilities common to two large classes of jobs involving food service and health care support. ... The expert testimony of Elvira Sisolak, EEOC Economist, demonstrated that these duties involved skills and abilities common to two classes of jobs. Sisolak “determine[d] which job categories” should be considered by examining “the duties of the job” and positions with similar “experience or education requirements” in the relevant geographical area. Sisolak concluded that Edwards' job duties ... were similar to positions in the “health care support” and “food preparation and food service” job categories... After determining these applicable job classes, Sisolak “extracted some of the census data and did some very simple calculations.” Based on this analysis, Sisolak testified that in the relevant geographic area it was her opinion “that based on the census data, there is, in fact, a broad [class] of jobs that is constituted by the health care support and food preparation and food serving positions within the service worker category.” Sisolak further testified that these two categories account for the majority of service worker employment opportunities in the area -- or approximately 3500 total jobs.”
EEOC v. Heartway, Consolidated Reply and Response Brief of the EEOC (9/15/2005). See also, e.g., Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1251 (10th Cir. 2005) (expert testimony that plaintiff's “ ‘potential occupational base’ was substantially reduced” supported jury determination that individual with blood and lymph node disease who was limited in working around knives or sharp objects was precluded “from performing a very substantial array of the jobs for which she would otherwise have been qualified”). Courts will sometimes treat certain job categories as constituting a class or broad range of jobs. See, e.g., Marinelli v. City of Erie, 216 F.3d 354, 364 (3d Cir. 2000) (listing chef as an example of a class of jobs). However, mounting this type of expert testimony still involves significant cost and time to establish the individual’s coverage under the ADA as a person regarded as disabled.
2. In Heartway, the EEOC also demonstrated that the facility administrator had clearly expressed his belief that Edwards could not perform her job -- or those jobs in the health care support or food preparation and food service industry -- at all. He communicated this belief to Edwards, the plaintiff (“you having Hepatitis C, you will not work in our kitchen”), indicated that the company's own customers would share this view (“[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus”), and suggested that others outside the company would have the same reaction (“[w]ould you like to eat some food with her blood on it?”). As the EEOC pointed out in its appellate brief, Heartway's belief that Edwards' blood could contaminate the food and cause an “exodus” of its clientele established the company's belief that Edwards was “significantly restricted.” This evidence suggests that the company perceived that Edwards was unable to work at all in these job classes. EEOC v. Heartway, Consolidated Reply and Response Brief of the EEOC (9/15/2005).
II. Harassment Claims -- Another Option For Plaintiffs Who Are The Targets Of Heightened Stigma
A. Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1st Cir. 2006). The plaintiff Colon’s coworkers and supervisors harassed him because of his sexual dysfunction disability, and the employer failed to follow up on his grievances. The court of appeals affirmed the district court and the jury's for the plaintiff's, finding that “there was evidence presented as to the constant mockery and harassment that [Colon] was subjected to by fellow co-workers and supervisors alike due to his condition; there was evidence presented that this harassment was constant and unbearable, leading to [his] resignation; and there was evidence that [Colon’s] supervisors knew about the harassing conduct and rather than stop it, participated in it.”
B. Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006). The plaintiff’s supervisor engaged in actions that made him “anxious and nervous,” eventually causing him anxiety attacks and depression. As his condition worsened, his psychiatrist prescribed a week's leave of absence and a reassignment. In response to plaintiff’s doctor's recommendation, a supervisor shared the information with another of plaintiff’s supervisor’s and both began referring to the plaintiff as “crazy.” The court also rejected the employer's argument that the conduct at the plaintiff's “blue-collar” working environment (a U.S. Post Office) may have been inappropriate, but was not hostile. The plaintiff was “subject to such constant ridicule about his mental impairment that it required him to be hospitalized and eventually to withdraw from the workforce.” Finally, although there was evidence that the plaintiff's supervisor harassed him before she knew he was disabled, the “relentless” harassment that followed the employer's receipt of the psychiatrist's letter clearly was directed at his disability.
III. Health Care Workers With HIV – With The Increasing Tendency To Characterize HIV As A Chronic, Manageable Disease, Should The “Direct Threat” Defense Still Hold Back HIV Positive Health Care Workers?
A. Direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services.” 42 U.S.C. § 12182(b)(3). However, for HIV positive health care workers, even the total absence of evidence that a feared event has ever occurred has been viewed as non-dispositive in deterring whether they pose a direct threat to patients. For this, we can than at least in part the CDC’s 1991 Guidelines in the treatment of health care workers with HIV/HepB.
B. One possibility for at least some health care workers on the spot is to request changed assignments which would eliminate even theoretical risks. Dark v. Curry County, 451 F.3d 1078, 1086 (9th Cir. 2006), cert. denied, 127 S. Ct. 1252 (U.S. 2007). Reversing the grant of summary judgment for the employer, the Ninth Circuit held that the employer was not entitled to assert the “direct threat” defense on summary judgment because it had not demonstrated that the direct threat posed by the plaintiff could not be eliminated with a reasonable accommodation. According to the court, the “direct threat” defense incorporates “a requirement that the qualification standards be incapable of modification through a reasonable accommodation that would permit the disabled employee to meet those standards.”
C. Creating consistent, and consistently reasonable, parameters for the determination that a risk is significant: is it possible to use statistical benchmarks to make direct threat determinations more consistent and fair? E.g., OSHA finding of “significant risk” is a prerequisite for occupational safety and health regulations, in which OSHA “seeks to quantify the risk posed by each toxic threat.” Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 652 (1980). In that case the Court held that a one in a thousand risk of death is significant, and OSHA subsequently adopted the 1/1,000 standard as the level of risk at which it much institute regulations. See AFL-CIO v. OSHA, 965 F.2d 962, 973 (11th Cir. 1992).