HIV, Supreme Court Ruling

What Does The Recent U.S. Supreme Court’s
Ruling On HIV Tell Employers?

When the U.S. Supreme Court ruled this summer that individuals infected with HIV virus are disabled for purposes of protection under the Americans With Disabilities Act (ADA), most employers were not surprised. After all, most prudent employers were already treating HIV and AIDS as a disability.

The Supreme Court’s recent decision held that individuals infected with HIV have a disability that may be covered under the ADA even if the individuals are showing no symptoms of the disease. In the case, the Court reasoned that HIV substantially limited the major life activity of reproduction because of the significant risk the virus may pose regarding transfer of infection between sex partners or at birth.

Critics of the Supreme Court’s decision have argued that although reproduction is certainly important to the lives of many people, it is not the same as walking, seeing, or speaking. The argument is that there are many people who live normal lives who have never reproduced, but there are not too many people who live normal lives who are unable to breathe without aid from a machine.

Although the recent decision was decided under the ADA’s public accommodation provisions, the definition of disability under the ADA is the same for all provisions of the ADA. As such, the expanded definition has equal significance to employers. Of concern is that there is now room for expanding the definition of "reproduction" as a major life activity under the ADA. Protections could inevitably be expanded to different types of reproduction issues – namely, employees that are having difficulty conceiving children.

However, the recent Supreme Court case offers the following lessons for employers who potentially have employees infected with the HIV virus:

• Employers that were not already doing so need to treat HIV infected individuals as having a disability and act in compliance with the ADA.
• Whenever an employer takes an adverse action against an employee infected with HIV based upon the employee’s disability, the employer must be able to back up the decision with "objective scientific evidence." The Supreme Court made clear that a good faith belief of health or safety risks to other employees or the public is not enough.
• Be aware of future reproduction "fertility" problems. Until there is more guidance from courts, employers should be wary of individuals who are having known difficulties conceiving. 

Posted 2/15/1999