new addition to the HEART is our
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
"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
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
established a "low" risk of transmission of this serious illness during
sex, and "if Powell engaged in sexual relations with his wife for
of reproduction or marital intimacy, he ran a risk of infecting her with
deadly disease. This unquestionably 'substantially limited' him in a
life activity.'" (footnote excluded). The court went on to explain that
"[t]he evidence showed that Powell could not choose to be intimate with
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. §
new addition to the HEART is our
Saunders v. Webber Oil Co., 2000 WL 1781835 (D. Me. Nov. 17, 2000):
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
only the application of common sense. I will not belabor the obvious."
court eventually held that plaintiff was not disabled because his
was not long-term at the time of his discharge, so his MLA was not
Lukens v. National RR Passenger Corp., 2000 WL 1622745 (E.D. Pa. Oct.
2000): "Sexual intimacy is a major life activity." (citing Bragdon).
Reese v. American Food Service, 2000 WL 1470212 (E.D. Pa. Sept. 29,
"Reproduction and sexual activity have also been recognized as major
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
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):
testicular cancer is a disability because of its "long-term effects on
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,
Court concludes that an impairment which impedes, limits, or otherwise
negatively affects a person's sexual relations in a substantial way may
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
would necessarily involve some significant impact on her sexual
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.
"sexual intercourse and reproduction are recognized as major life
activities." In a footnote, the court stated that "[w]hile the
court was, generally, discussing the ability to reproduce, the court was
clearly analyzing the activities that make up the process as
is a result and not an activity."
Keller v. Board of Educ. of the City of Albuquerque, 182 F. Supp. 2d
(D.N.M. 2001): Plaintiff's medication for breast cancer caused pain
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
limitation of her sex life."