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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”


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HIV Found To Be No Disability 

1990 federal law increasingly unavailable for AIDS discrimination cases - By ARTHUR S. LEONARD, Gay City News

A federal district judge dismissed a workplace discrimination claim brought by an HIV-positive man on the ground that the man's HIV infection did not meet the statutory definition for disability because he had no interest in having children. This is the latest of several recent rulings suggesting that the federal American With Disabilities Act (ADA) is unlikely to provide much protection against workplace bias to HIV-positive gay men who are staying healthy through medical treatment.

The January 4 decision was based on the peculiar definition of "disability" contained in the federal statute. The ADA defines an individual with a disability as somebody having "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."

In this case, the individual is Robert Worster, discharged from a position as a party planner by Carlson Wagon Lit Travel, Inc., in 2000. Worster was suffering from Lyme Disease when he was diagnosed as HIV-positive that March. As a result of complications from Lyme Disease, he requested and received a temporary leave from work. Although employees on leave for medical reasons were expected not to work at other jobs, Worster had taken on one shift a week at a restaurant, which his boss was willing to tolerate so long as it did not interfere with his work performance at the travel agency.



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A few months after learning of his HIV diagnosis, Carlson submitted a request for full leave under the Family and Medical Leave Act (FMLA), claiming that he was incapacitated due to "extreme fatigue" and asking for his leave to extend until September 18, 2000. The company granted his request for leave from May 12 to July 6, with permission to submit a subsequent extension request.

As part of his leave request, Worster signed an application agreeing that he would "not engage in gainful employment" during FMLA leave, at the risk of termination. Nonetheless, once on leave, Worster went to Provincetown on Cape Cod and began working at another restaurant, a fact that the company learned about via an anonymous fax. A Carlson human resources officer called the restaurant to confirm that Worster was employed there, and he was terminated.

Worster claimed discrimination and retaliation under the ADA, but the threshold issue was whether he was an individual with a disability under the statute. Now, a federal judge has ruled that he was not.

"Mr. Worster contends that HIV positive status constitutes a physical impairment which substantially limited the major life activities of reproduction and sexual activity," Judge Ellen Bree Burns wrote. "First, HIV positive status does not qualify as a matter of law as a per se disability in this Circuit."

After noting a 1999 Supreme Court decision, interpreting the statute to require an "individualized inquiry" about the plaintiff's status, she commented, "it is not enough for a plaintiff to show simply that he or she has a certain disease which may potentially or hypothetically be disabling. Instead, a plaintiff must show that his or her impairment, in fact, substantially limits a major life activity."

Burns found that Worster could not credibly allege that his HIV infection substantially limited the major life activity of reproduction, because he testified in a deposition that he had no plans to have children.

"Similarly," she wrote, "plaintiff has testified that his impairment has not affected his sexual activity. To the extent that a jury could infer from his assertions that his HIV-positive status restricted his ability to engage in unprotected sex, no reasonable jury could find from the evidence that this restriction rose to the level of a substantial restriction. Nor has plaintiff shown that his impairment affects any other major life activity."

Worster also claimed a violation of the Connecticut Fair Employment Practices Act, which has a different definition of disability: "chronic physical handicap, infirmity or impairment." But Burns decided she didn't need to determine whether Worster's HIV infection would qualify him for protection under this definition, because the employer's legitimate reason for discharging him would trump this claim.

The court never mentions Worster's sexual orientation, merely identifying him as an HIV-positive man who had no interest in having children who moved to Provincetown.

Advocates who pushed for passage of the ADA in 1990 considered it a viable protection against workplace discrimination for people with HIV. However, recent court rulings suggest that due to the changing nature of the epidemic, with the development of medications that make it possible for HIV-positive people to stay healthy enough to work, and, as importantly, the Supreme Court's strict interpretation of the law and the effect of that on the lower courts, the ADA's initial intention has been thwarted.

There are a number of district court cases out there that might be helpful in establishing that sexual intimacy is a major life activity.  Here's a list:

Powell v. City of Pittsfield, 221 F. Supp. 2d 119 (D. Mass. 2002):
Plaintiff has hepatitis C; Rehab Act case.  Court finds that "both
reproduction and sexual relations are obviously major life activities."
Plaintiff is substantially limited in these MLAs because medical evidence
established a "low" risk of transmission of this serious illness during
sex, and "if Powell engaged in sexual relations with his wife for purposes
of reproduction or marital intimacy, he ran a risk of infecting her with a
deadly disease. This unquestionably 'substantially limited' him in a 'major
life activity.'" (footnote excluded). The court went on to explain that
"[t]he evidence showed that Powell could not choose to be intimate with his
wife without running the risk of endangering her life.  Put differently,
Powell's hepatitis C 'significant[ly] restrict[ed] the ... manner or
condition under which' Powell could engage in reproduction or sexual
relations 'as compared to the average person in the general population's
ability to perform that same major life activity.'" (quoting 29 C.F.R. §



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Saunders v. Webber Oil Co., 2000 WL 1781835 (D. Me. Nov. 17, 2000):  "The
Supreme Court has embraced a broad definition of the term 'major life
activity' and has indicated that it encompasses activities which are
private in character. That engaging in normal sexual relations is of
relatively great importance to the vast majority of the population requires
only the application of common sense. I will not belabor the obvious." (The
court eventually held that plaintiff was not disabled because his condition
was not long-term at the time of his discharge, so his MLA was not
substantially limited.)

Lukens v. National RR Passenger Corp., 2000 WL 1622745 (E.D. Pa. Oct. 25,
2000):  "Sexual intimacy is a major life activity." (citing Bragdon).

Reese v. American Food Service, 2000 WL 1470212 (E.D. Pa. Sept. 29, 2000):
"Reproduction and sexual activity have also been recognized as major life

Roe v. Village of Westmont, 2003 WL 444508 (N.D. Ill. Feb 24, 2003): "It
will be remembered that the major life activity implicated in HIV-infected
individuals is procreation, or even engaging in sexual relations."

Knutson v. AG Processing, 2002 WL 31422858 (N.D. Iowa Oct 29, 2002):
Concluding that plaintiff whose back condition and hernia impair his
ability to have sex with his wife may be substantially limited in MLA of
sexual activity, and noting that "a number of courts have had little
trouble finding that 'sexual relations' is a major life activity."

Hiller v. Runyon, 95 F. Supp. 2d 1016, 1020 (S.D. Iowa 2000):  Plaintiff's
testicular cancer is a disability because of its "long-term effects on his
ability to engage in sexual relations and reproduce."  It should also be
noted that the court was "not convinced" that the plaintiff's alleged
decision not to have more children should be considered in determining
whether he was substantially limited in the MLA of reproduction.

Cornman v. N.P. Dodge Mgmt. Co., 43 F. Supp. 2d 1066 (D. Minn. 1999):
Finding a "record of" disability where plaintiff was fired after double
mastectomy.  The court reasoned:  "Extending the rationale of Bragdon, this
Court concludes that an impairment which impedes, limits, or otherwise
negatively affects a person's sexual relations in a substantial way may be
considered a disability under the ADA. This society clearly considers a
woman's breasts to be an integral part of her sexuality, the loss of which
would necessarily involve some significant impact on her sexual self-image.
The record before the Court, then, presents a genuine issue of material
fact as to whether the Plaintiff's breast cancer in the mid-1970s was a
disability under the meaning of the ADA."

Praseuth v. Newell-Rubbermaid, Inc., 219 F. Supp. 2d 1157 (D. Kan. 2002):
"sexual intercourse and reproduction are recognized as major life
activities."  In a footnote, the court stated that "[w]hile the [Bragdon]
court was, generally, discussing the ability to reproduce, the court was
clearly analyzing the activities that make up the process as reproduction
is a result and not an activity."

Keller v. Board of Educ. of the City of Albuquerque, 182  F. Supp. 2d 1148
(D.N.M. 2001): Plaintiff's medication for breast cancer caused pain during
vaginal intercourse and a loss of libido.  Court holds that "[s]exual
intercourse and reproduction are recognized as major life activities."
Plaintiff was post-menopausal, so reproduction wasn't a possibility, but
the court held that plaintiff was disabled "on the basis of the substantial
limitation of her sex life."