Unanswered Questions
Unfortunately, the Court’s opinion ignored the issue of whether the determination of effect on a major life activity must be specific to the plaintiff. Instead, the court presented a barrage of information about what a bad disease HIV is and how it is clear that HIV-infected persons are impaired. It is clear that HIV infection does affect several major life activities and that this case is correctly decided. However, the Chief Justice’s concern with individualized determinations is well founded. Not every disability is so clear- cut as to its effects on the major life activities. Many diseases have a spectrum of effects, ranging from minor alterations in diagnostic tests with little chance of progression, to full-blown disease with major illness and death. This is especially problematic in mental illnesses, with their highly variable course. In these cases, the question of whether the individual plaintiff need show an effect of the disease is very relevant. The Court gives no guidance on this very difficult issue. (Although not discussed by any judge, the converse problem is also possible: if the standard is a generic one, what happens to a plaintiff who is personally disabled by a condition that usually does not disable others.)