In the

United States Court of Appeals

For the Seventh Circuit

FEBRUARY 2, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 06-3278

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

v.

LEE’S LOG CABIN, INCORPORATED,

Defendant-Appellee.
2 No. 06-3278

Circuit Judge Williams has written an opinion, which 

Judges Rovner, Wood, and Evans have joined, dissenting

from the denial of the petition.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05 C 507—Barbara B. Crabb, Chief Judge.

The slip opinion issued on October 6, 2008, is AMENDED

to add the following language at the end of footnote 4

on page 12:

We caution that nothing in this opinion should be

read to suggest that the EEOC’s complaint failed to

state a claim; we hold only that the district court was

within its discretion to refuse to permit a change in

the claim under the procedural circumstances of this

case. 

Otherwise, on consideration of the petition for panel

rehearing and for rehearing en banc, a majority of judges

have voted to deny rehearing. Circuit Judges Rovner, 

Wood, Evans, and Williams voted to grant en banc rehearing.

It is therefore ordered that the petition for rehearing and

for rehearing en banc is DENIED.
No. 06-3278 3

WILLIAMS, Circuit Judge, joined by ROVNER, WOOD, and

EVANS, Circuit Judges, dissenting from the denial of rehearing en banc. I do not think that the EEOC ever changed

its claim in this case. It alleged that a restaurant

improperly refused to hire a young woman “because it

learned she was HIV positive” and then submitted evidence that she had “AIDS” to prove she was disabled

enough for ADA protection. The EEOC was punished for

doing so (its sanction was that critical evidence was

stricken, leaving a fictitious “evidentiary void”), because

the district court thought switching the disability from

HIV (in the complaint) to AIDS at the summary judgment

stage was a “gross departure from what [the EEOC]

alleged.” Notwithstanding the uncontroverted fact that

AIDS is just another name for the last stage of HIV, the

majority affirmed the district court’s ruling that the

EEOC “refashion[ed] its claim as one based on AIDS

rather than HIV.”

In my view, our treatment of this case raises serious

questions about our approach to ADA cases involving

complex disabilities. Given the procedural circumstances

of this case, where the majority relies on a purported

disconnect between the complaint and the evidence

submitted at the summary judgment stage rather than

discovery violations, I think this case merits rehearing

en banc.

To sum up the case very briefly: Korrin Stewart, who was

18 years old at the time, applied for a position as a

waitress at Log Cabin. A manager at the restaurant discovered she was infected with HIV and wrote “HIV +” in
4 No. 06-3278

large capital letters across her application. The restaurant

did not hire Stewart. The EEOC filed a complaint alleging

that Log Cabin refused to hire Stewart “because it learned

she was HIV positive.” At the summary judgment stage,

the EEOC submitted evidence that Stewart’s condition

(which the affidavits refer to as “AIDS” or “HIV/AIDS”)

substantially limits one or more of her major life activities. The district court acknowledged that Stewart’s disease

caused serious limitations on a number of major life

activities, including self-care, eating, and reproduction. But

the district court struck the affidavits on the basis of its

judgment that a disability claim based on AIDS is a “gross

departure” from a claim based on “being HIV positive.”

The EEOC’s evidence only pertained to the “AIDS claim,”

reasoned the court, and could not be considered towards

the “HIV claim.” Because the court could find no evidence

that HIV (rather than AIDS) substantially impaired any of

Stewart’s major life activities, it granted summary judgment to Log Cabin.

The majority opinion affirmed the district court on two

grounds that are problematic to me and merit en banc

consideration. First, by holding that the EEOC failed to

give adequate notice to Log Cabin when its complaint alleged that Stewart was HIV positive (rather

than specifying that her HIV had advanced to the AIDS

stage), the majority imposed a higher pleading requirement for litigants with multi-stage disabilities. Although

this case was not decided on a Rule 12(b)(6) motion, the

EEOC was not allowed to rely on evidence regarding

Stewart’s disability (AIDS) for the sole reason that its

complaint alleged only “HIV positive.” Second, the major-
No. 06-3278 5

ity created a specific knowledge requirement in situations

involving employers who are aware of a disability but are

not aware of the actual extent of that disability.

I begin with the latter problem. The majority would

require an employer to know the extent to which a job

applicant is disabled in order to be held liable for

making decisions based on that disability. Slip op. at 12,

n.4 (speculating that the reason the EEOC did not plead

AIDS in its complaint is that there was no evidence Log

Cabin was aware Stewart had AIDS, which provided

another basis to affirm summary judgment). There is no

dispute that Log Cabin knew Stewart was HIV positive—indeed someone at Log Cabin wrote it across her

job application in large black letters. But Log Cabin maintained (and reiterates in its answer) that it did not know

Stewart’s HIV had progressed to the AIDS stage and

argued that it could not be held liable under the ADA for

taking an adverse action against an individual when it

had no knowledge of her disability. By holding that Log

Cabin’s lack of knowledge regarding Stewart’s AIDS

diagnosis provided an alternative basis for summary

judgment, the majority created a specific knowledge

requirement that goes beyond our holding in Hedberg v.

Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) and

conflicts with the D.C. Circuit’s holding in Adams v. Rice,

531 F.3d 936, 953-54 (D.C. Cir. 2008).

Certainly an ADA plaintiff must demonstrate a causal

connection between an employer’s adverse action and its

knowledge of her disability. Hedberg, 47 F.3d at 932. In

Hedberg, however, the employer had no knowledge what-
6 No. 06-3278

soever that the plaintiff was even ill when it decided to

discharge him. See id. (“At the most basic level, it is intuitively clear when viewing the ADA’s language in a

straightforward manner that an employer cannot fire

an employee ‘because of’ a disability unless it knows of

the disability. If it does not know of the disability, the

employer is firing the employee ‘because of’ some other

reason.”).

An important question is whether an employer must

know how far advanced a disability has progressed to

be liable under the ADA. The majority says yes, but I do

not think the ADA imposes such a requirement. Cf.

Sanglap v. LaSalle Bank, FSB, 345 F.3d 515, 520 (7th Cir.

2003) (“[L]iability for disability discrimination does not

require professional understanding of the plaintiff’s

condition. . . . It is enough to show that the defendant knew

of symptoms raising an inference that the plaintiff was

disabled.”). Recently, the D.C. Circuit considered this

very question at length in Adams v. Rice and held that “it

makes no difference whether an employer has precise

knowledge of an employee’s substantial limitation; as in

[Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998)], it is

enough for the employer to know about the impairment.”

531 F.3d at 953.

In my view, the majority’s requirement creates an

insurmountable hurdle for ADA plaintiffs with complex

disabilities. The ADA protects people with disabilities

from employers who do not understand the precise

nature of their disabilities. I think it is fair to say that most

employers who discriminate on the basis of a disability
No. 06-3278 7

are ill-informed about that disability. Why should an

employer’s ignorance about a disease (especially a complicated one like HIV, which has many stages and different

names) shield that employerfrom liability? See, e.g., Adams,

531 F.3d at 954 (“creating a knowledge requirement in

situations involving pure discrimination would shield

the most ignorant, irrational, and prejudiced employers—precisely the kinds of employers Congress intended

the Act to reach.”).

The majority’s holding that the EEOC’s complaint failed

to provide adequate notice to Log Cabin creates a new

burden as well. The majority faults the EEOC on two

counts regarding notice: the EEOC’s complaint “gave

notice that its ADA claim was grounded on discrimination because she was HIV positive, not because she had

AIDS,” slip op. at 9, and the EEOC did not state that

Stewart’s AIDS was the “actual basis for the discrimination alleged in the case,” id. at 10. The majority opinion

creates a requirement that an ADA plaintiff must plead

specific facts regarding her disability, including its stage

if the disease consists of multiple stages. A plaintiff who

fails to do so (as the EEOC did here by alleging that

Stewart was HIV positive and not specifying that she had

AIDS) risks losing her lawsuit at the summary judgment

stage. That is what happened here, where the EEOC was

punished for submitting evidence regarding AIDS when

its complaint alleged that Stewart had HIV. Even though

AIDS is merely a stage of HIV (Stewart’s disability can

be characterized as “being HIV positive” at all times

regardless of its exact stage), the majority held that the

EEOC had not provided sufficient notice to Log Cabin to

be able to rely on this evidence.
8 No. 06-3278

This, to me, is inconsistent with our case law regarding

general notice pleading standards. We have reiterated

that a complaint “need not set out either legal theories or

comprehensive factual narratives.” Rapid Test Products, Inc.

v. Durham School Services, Inc., 460 F.3d 859, 860 (7th Cir.

2006) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002)). Rather, all EEOC was required to do was plead its

grievance. That it did: it alleged that “Log Cabin refused

to hire Stewart because it learned that she was HIV positive.” The exact stage of HIV is a detail—and an irrelevant

one at that. The EEOC’s grievance is with Log Cabin’s

action, which is illegal if it was in fact based on her HIV.

See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)

(“we do not require heightened fact pleading of specifics,

but only enough facts to state a claim to relief that is

plausible on its face.”).

Based on this purported lack of notice, the majority

upheld the district court’s decision to strike evidence

regarding Stewart’s disability (AIDS) as manifestly reasonable because the EEOC refashioned its claim (by

submitting evidence regarding AIDS at the summary

judgment stage when its complaint referenced only

HIV). As I explained in my dissent, the majority’s premise

that a claim based on HIV is factually different from a

claim based on AIDS is inconsistent with scientific and

medical experience. The amicus briefs point out that there

is no scientifically or medically recognized “bright line

distinction” between HIV and AIDS, and the two terms

are often used interchangeably or simply referred to as

“HIV/AIDS.” The majority responds that “the physical

effects of AIDS are different—more severe—than those

associated with being HIV-positive.” Not according to the
No. 06-3278 9

Supreme Court, which noted in Bragdon that “During [the

AIDS] stage, the clinical conditions most often associated

with HIV, such as pneumocystis carninii pneumonia,

Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to

appear.” 524 U.S. at 636. And not according to medical

experience. The amici assert that the term “AIDS” is

scientifically meaningless because not all persons diagnosed with AIDS have the same symptoms and with the

advent of antiretroviral therapy, some patients are able

to reverse the disease’s progress but retain the AIDS

diagnosis anyway. The district court’s approach, as I

explained further in my dissent, conflicts with the

Supreme Court’s instruction in Bragdon that although “HIV

infection satisfies the statutory and regulatory definition

of a physical impairment at every stage of the disease,”

courts should make disability determinations based on

individualized circumstances. 524 U.S. at 637. It also is

inconsistent with the Court’s instruction in Sutton v.

United Air Lines that disabilities should be evaluated on

an individualized basis rather than on generalizations

derived from the name of a disease alone. 527 U.S. 471, 483

(1999).

I think the majority’s holding creates problems for

victims of discrimination who suffer from HIV and other

complicated diseases with multiple stages. For these

reasons, as well as those in my dissenting opinion,

I respectfully dissent from the denial of the petition for

rehearing en banc.

2-2-09