Is HIV a Disability under the Americans with Disabilities Act: Unanswered Questions after Bragdon V. Abbott

I. INTRODUCTION The condition known as acquired immunodeficiency syndrome ("AIDS") was first reported to the Centers for Disease Control (CDC) in 1981. (2) By 1983, scientists had identified a new human retrovirus called HIV or Human Immunodeficiency Virus, that was responsible for AIDS. (3) Since that time, the number of persons with HIV infection and AIDS has grown and HIV/AIDS now effects every country in the world. In July 1996, an estimated 22 million persons across the world were living with HIV infection. (4) Medical experts now know that HIV is a progressive disease that attacks the body at the outset and even during the Early Disease Stage, or so-called "asymptomatic stage," HIV continues to have severe deteriorating physical effects. But during this "asymptomatic" stage, most individuals generally have no outward manifestations of the HIV disease. (5) This fact raises the issue of whether a person with HIV who is asymptomatic can be held to be "disabled" for purposes of the protections of the Americans With Disabilities Act. Prior to the passage of the ADA in 1990, the term "individual with a handicap" had been clearly established under federal disability laws to include all people with HIV. Every reported decision under the Rehabilitation Act and the Fair Housing Amendment Act had determined that asymptomatic HIV was protected as a per se disability. (6) Prior to 1997, only a few Courts had faced the issue of whether a plaintiff with asymptomatic HIV was disabled under the ADA. (7) In 1997, the Fourth and First Circuit Courts of Appeal decided cases in direct conflict with one another, opening the door for the U. S. Supreme Court to review the issue of the definition of disability under the ADA because of the split created by these Circuit Court opinions. The two cases, Abbott v. Bragdon (8) and Runnebaum v. NationsBank of Maryland, N.A. (9) both involved plaintiffs who were HIV-positive but asymptomatic. The Abbott Court held that asymptomatic HIV was a disability and therefore the plaintiff who was seeking dental treatment was protected under the Americans With Disabilities Act. (10) The Runnebaum Court, on the other hand, took the opposite view and found that the plaintiff was not disabled within the meaning of the ADA and therefore was not protected from the alleged discriminatory firing by his employer. (11) This article explores the divergent analysis applied to the two cases and then discusses the Supreme Court's opinion in Bragdon v. Abbott. Finally, the article discusses what questions remain unanswered as a result of the Bragdon v. Abbott decision. II. MEDICAL BACKGROUND OF HIV HIV is a human virus that can infect and replicate in numerous types of human cells. (12) Certain immune-system T-cells, white blood cells contain a surface protein known as CD4 and are particularly susceptible to HIV infection. (13) Infected T-cells (T-cells that are "CD4+") eventually die, and as the number of such cells decreases, the body's ability to fight infection also decreases. The infected individual's CD4+ cell count is thus "the best predictive marker of relative risk for developing HIV-related opportunistic diseases. (14) As a result, HIV disease is viewed as progressing in stages that correspond to a level of CD4+ cells or that result in an AIDS-defining condition in the patient. (15) HIV disease begins with exposure to and infection by HIV. After infection, HIV immediately attacks the cells of the immune system. HIV attaches to the CD4 receptor on the surface of a T-cell and its membrane fuses with that of the host cell, injecting the viral genetic material into the host T-cell. (16) The host cell can then become a factory for the production of more copies of HIV's genetic material, and these copies spread to other cells. (17) Within two to four weeks after initial infection, high levels of circulating HIV can be detected. (18) As a result of this attack on the cells, HIV infection induces a chronic and progressive process with a broad spectrum of manifestations and complications from primary infection to life-threatening opportunistic infections. …