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| [1] | United States Supreme Court |
| [2] | No. 97-156 |
| [3] | 118 S.Ct. 2196, 141 L.Ed.2d 540, 8 A.D. Cases 239, 1998.SCT.42098 <http://www.versuslaw.com>, 98
Cal. Daily Op. Serv. 5021 |
| [4] | June 25, 1998 |
| [5] | RANDON BRAGDON, PETITIONER V. SIDNEY ABBOTT ET AL. |
| [6] | SYLLABUS BY THE COURT |
| [7] | Syllabus |
| [8] | OCTOBER TERM, 1997 |
| [9] | BRAGDON v. ABBOTT |
| [10] | NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the opinion
is issued. The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200
U. S. 321, 337. |
| [11] | SUPREME COURT OF THE UNITED STATES |
| [12] | BRAGDON v. ABBOTT et al. |
| [13] | Certiorari To The United States Court Of Appeals For The First Circuit |
| [14] | No. 97-156. |
| [15] | Argued March 30, 1998 |
| [16] | Decided June 25, 1998 |
| [17] | Respondent is infected with the human immunodeficiency virus (HIV),
but had not manifested its most serious symptoms when the incidents in
question occurred. At that time, she went to petitioner's office for a
dental examination and disclosed her HIV infection. Petitioner discovered
a cavity and informed respondent of his policy against filling cavities
of HIV-infected patients in his office. He offered to perform the work
at a hospital at no extra charge, though respondent would have to pay
for use of the hospital's facilities. She declined and filed suit under,
inter alia, the Americans with Disabilities Act of 1990 (ADA), which prohibits
discrimination against any individual "on the basis of disability in the
... enjoyment of the ... services ... of any place of public accommodation
by any person who ... operates [such] a place," 42 U. S. C. Section 12182(a),
but qualifies the prohibition by providing: "Nothing [herein] shall require
an entity to permit an individual to participate in or benefit from the
... accommodations of such entity where such individual poses a direct
threat to the health or safety of others," Section 12182(b)(3). The District
Court granted respondent summary judgment. The First Circuit affirmed,
agreeing with the lower court that respondent's HIV was a disability under
the ADA even though her infection had not yet progressed to the symptomatic
stage, and that treating her in petitioner's office would not have posed
a direct threat to the health and safety of others. In making the latter
ruling, the court relied on the 1993 Dentistry Guidelines of the Centers
for Disease Control and Prevention (CDC) and on the 1991 American Dental
Association Policy on HIV. |
| [18] | Held: |
| [19] | 1. Even though respondent's HIV infection had not progressed to the
so-called symptomatic phase, it was a "disability" under Section 12102(2)(A),
that is, "a physical ... impairment that substantially limits one or more
of [an individual's] major life activities." Pp. 3-21. |
| [20] | (a) The ADA definition is drawn almost verbatim from definitions applicable
to Section 504 of the Rehabilitation Act of 1973 and another federal statute.
Because the ADA expressly provides that "nothing [herein] shall be construed
to apply a lesser standard than ... under ... the Rehabilitation Act ...
or the regulations issued ... pursuant to [it]," Section 12201(a), this
Court must construe the ADA to grant at least as much protection as the
regulations implementing the Rehabilitation Act. Pp. 4-5. |
| [21] | (b) From the moment of infection and throughout every stage of the disease,
HIV infection satisfies the statutory and regulatory definition of a "physical
impairment." Applicable Rehabilitation Act regulations define "physical
or mental impairment" to mean "any physiological disorder or condition
... affecting ... the ... body['s] ... hemic and lymphatic [systems]."
HIV infection falls well within that definition. The medical literature
reveals that the disease follows a predictable and unalterable course
from infection to inevitable death. It causes immediate abnormalities
in a person's blood, and the infected person's white cell count continues
to drop throughout the course of the disease, even during the intermediate
stage when its attack is concentrated in the lymph nodes. Thus, HIV infection
must be regarded as a physiological disorder with an immediate, constant,
and detrimental effect on the hemic and lymphatic systems. Pp. 4-10. |
| [22] | (c) The life activity upon which respondent relies, her ability to reproduce
and to bear children, constitutes a "major life activity" under the ADA.
The plain meaning of the word "major" denotes comparative importance and
suggests that the touchstone is an activity's significance. Reproduction
and the sexual dynamics surrounding it are central to the life process
itself. Petitioner's claim that Congress intended the ADA only to cover
those aspects of a person's life that have a public, economic, or daily
character founders on the statutory language. Nothing in the definition
suggests that activities without such a dimension may somehow be regarded
as so unimportant or insignificant as not to be "major." This interpretation
is confirmed by the Rehabilitation Act regulations, which provide an illustrative,
nonexhaustive list of major life activities. Inclusion on that list of
activities such as caring for one's self, performing manual tasks, working,
and learning belies the suggestion that a task must have a public or economic
character. On the contrary, the regulations support the inclusion of reproduction,
which could not be regarded as any less important than working and learning.
Pp. 10-12. |
| [23] | (d) Respondent's HIV infection "substantially limits" her major life
activity within the ADA's meaning. Although the Rehabilitation Act regulations
provide little guidance in this regard, the Court's evaluation of the
medical evidence demonstrates that an HIV-infected woman's ability to
reproduce is substantially limited in two independent ways: If she tries
to conceive a child, (1) she imposes on her male partner a statistically
significant risk of becoming infected; and (2) she risks infecting her
child during gestation and childbirth, i.e., perinatal transmission. Evidence
suggesting that antiretroviral therapy can lower the risk of perinatal
transmission to about 8%, even if relevant, does not avail petitioner
because it cannot be said as a matter of law that an 8% risk of transmitting
a dread and fatal disease to one's child does not represent a substantial
limitation on reproduction. The decision to reproduce carries economic
and legal consequences as well. There are added costs for antiretroviral
therapy, supplemental insurance, and long-term health care for the child
who must be examined and treated. Some state laws, moreover, forbid HIV-infected
persons from having sex with others, regardless of consent. In the context
of reviewing summary judgment, the Court must take as true respondent's
unchallenged testimony that her HIV infection controlled her decision
not to have a child. Pp. 12-15. |
| [24] | (e) The uniform body of administrative and judicial precedent interpreting
similar language in the Rehabilitation Act confirms the Court's holding.
Every agency and court to consider the issue under the Rehabilitation
Act has found statutory coverage for persons with asymptomatic HIV. The
uniformity of that precedent is significant. When administrative and judicial
interpretations have settled the meaning of an existing statutory provision,
repetition of the same language in a new statute indicates, as a general
matter, Congress' intent to incorporate such interpretations as well.
See, e.g., Lorillard v. Pons, 434 U. S. 575, 580-581. Pp. 15-19. |
| [25] | (f) The Court's holding is further reinforced by the guidance issued
by the Justice Department and other agencies authorized to administer
the ADA, which supports the Conclusion that persons with asymptomatic
HIV fall within the ADA's definition of disability. The views of agencies
charged with implementing a statute are entitled to deference. See Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837,
844. Pp. 19-21. |
| [26] | 2. In affirming the summary judgment, the First Circuit did not cite
sufficient material in the record to determine, as a matter of law, that
respondent's HIV infection posed no direct threat to the health and safety
of others. The ADA's direct threat provision, Section 12182(b)(3), stems
from School Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 287, in which
this Court reconciled competing interests in prohibiting discrimination
and preventing the spread of disease by construing the Rehabilitation
Act not to require the hiring of a person who posed "a significant risk
of communicating an infectious disease to others," id., at 287, and n.
16. The existence of a significant risk is determined from the standpoint
of the health care professional who refuses treatment or accommodation,
and the risk assessment is based on the medical or other objective, scientific
evidence available to him and his profession, not simply on his good-faith
belief that a significant risk existed. See id., at 288; id., at 288,
n. 18, distinguished. For the most part, the First Circuit followed the
proper standard and conducted a thorough review of the evidence. However,
it might have mistakenly relied on the 1993 CDC Dentistry Guidelines,
which recommend certain universal precautions to combat the risk of HIV
transmission in the dental environment, but do not actually assess the
level of such risk, and on the 1991 American Dental Association Policy
on HIV, which is the work of a professional organization, not a public
health authority, and which does not reveal the extent to which it was
based on the Association's assessment of dentists' ethical and professional
duties, rather than scientific assessments. Other evidence in the record
might support affirmance of the trial court's ruling, and there are reasons
to doubt whether petitioner advanced evidence sufficient to raise a triable
issue of fact on the significance of the risk, but this Court's evaluation
is constrained by the fact that it has not had briefs and arguments directed
to the entire record. A remand will permit a full exploration of the issues
through the adversary process. Pp. 21-29. |
| [27] | 107 F. 3d 934, vacated and remanded. |
| [28] | Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter,
Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a Concurring opinion,
in which Breyer, J., joined. Ginsburg, J., filed a Concurring opinion.
Rehnquist, C. J., filed an opinion Concurring in the judgment in part
and Dissenting in part, in which Scalia and Thomas, JJ., joined, and in
Part II of which O'Connor, J., joined. O'Connor, J., filed an opinion
Concurring in the judgment in part and Dissenting in part. |
| [29] | On Writ Of Certiorari To The United States Court Of Appeals For The
First Circuit |
| [30] | The opinion of the court was delivered by: Justice Kennedy |
| [31] | Opinion of the Court |
| [32] | BRAGDON v. ABBOTT |
| [33] | ____ U. S. ____ (1998) |
| [34] | NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors,
in order that corrections may be made before the preliminary print goes
to press. |
| [35] | We address in this case the application of the Americans with Disabilities
Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. Section 12101 et seq., to
persons infected with the human immunodeficiency virus (HIV). We granted
certiorari to review, first, whether HIV infection is a disability under
the ADA when the infection has not yet progressed to the so-called symptomatic
phase; and, second, whether the Court of Appeals, in affirming a grant
of summary judgment, cited sufficient material in the record to determine,
as a matter of law, that respondent's infection with HIV posed no direct
threat to the health and safety of her treating dentist. |
| [36] | I. |
| [37] | Respondent Sidney Abbott has been infected with HIV since 1986. When
the incidents we recite occurred, her infection had not manifested its
most serious symptoms. On September 16, 1994, she went to the office of
petitioner Randon Bragdon in Bangor, Maine, for a dental appointment.
She disclosed her HIV infection on the patient registration form. Petitioner
completed a dental examination, discovered a cavity, and informed respondent
of his policy against filling cavities of HIV-infected patients. He offered
to perform the work at a hospital with no added fee for his services,
though respondent would be responsible for the cost of using the hospital's
facilities. Respondent declined. |
| [38] | Respondent sued petitioner under state law and Section 302 of the ADA,
104 Stat. 355, 42 U. S. C. Section 12182, alleging discrimination on the
basis of her disability. The state law claims are not before us. Section
302 of the ADA provides: |
| [39] | "No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who ... operates a place of public accommodation." Section
12182(a). |
| [40] | The term "public accommodation" is defined to include the "professional
office of a health care provider." Section 12181(7)(F). |
| [41] | A later subsection qualifies the mandate not to discriminate. It provides: |
| [42] | "Nothing in this subchapter shall require an entity to permit an individual
to participate in or benefit from the goods, services, facilities, privileges,
advantages and accommodations of such entity where such individual poses
a direct threat to the health or safety of others." Section 12182(b)(3). |
| [43] | The United States and the Maine Human Rights Commission intervened as
plaintiffs. After discovery, the parties filed cross-motions for summary
judgment. The District Court ruled in favor of the plaintiffs, holding
that respondent's HIV infection satisfied the ADA's definition of disability.
912 F. Supp. 580, 585-587 (Me. 1995). The court held further that petitioner
raised no genuine issue of material fact as to whether respondent's HIV
infection would have posed a direct threat to the health or safety of
others during the course of a dental treatment. Id., at 587-591. The court
relied on affidavits submitted by Dr. Donald Wayne Marianos, Director
of the Division of Oral Health of the Centers for Disease Control and
Prevention (CDC). The Marianos affidavits asserted it is safe for dentists
to treat patients infected with HIV in dental offices if the dentist follows
the so-called universal precautions described in the Recommended Infection-Control
Practices for Dentistry issued by CDC in 1993 (1993 CDC Dentistry Guidelines).
912 F. Supp., at 589. |
| [44] | The Court of Appeals affirmed. It held respondent's HIV infection was
a disability under the ADA, even though her infection had not yet progressed
to the symptomatic stage. 107 F. 3d 934, 939-943 (CA1 1997). The Court
of Appeals also agreed that treating the respondent in petitioner's office
would not have posed a direct threat to the health and safety of others.
Id., at 943-948. Unlike the District Court, however, the Court of Appeals
declined to rely on the Marianos affidavits. Id., at 946, n. 7. Instead
the court relied on the 1993 CDC Dentistry Guidelines, as well as the
Policy on AIDS, HIV Infection and the Practice of Dentistry, promulgated
by the American Dental Association in 1991 (1991 American Dental Association
Policy on HIV). 107 F. 3d, at 945-946. |
| [45] | II. |
| [46] | We first review the ruling that respondent's HIV infection constituted
a disability under the ADA. The statute defines disability as: |
| [47] | "(A)a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; |
| [48] | "(B)a record of such an impairment; or |
| [49] | "(C)being regarded as having such impairment." Section 12102(2). |
| [50] | We hold respondent's HIV infection was a disability under subsection
(A) of the definitional section of the statute. In light of this Conclusion,
we need not consider the applicability of subsections (B) or (C). |
| [51] | Our consideration of subsection (A) of the definition proceeds in three
steps. First, we consider whether respondent's HIV infection was a physical
impairment. Second, we identify the life activity upon which respondent
relies (reproduction and child bearing) and determine whether it constitutes
a major life activity under the ADA. Third, tying the two statutory phrases
together, we ask whether the impairment substantially limited the major
life activity. In construing the statute, we are informed by interpretations
of parallel definitions in previous statutes and the views of various
administrative agencies which have faced this interpretive question. |
| [52] | A. |
| [53] | The ADA's definition of disability is drawn almost verbatim from the
definition of "handicapped individual" included in the Rehabilitation
Act of 1973, 29 U. S. C. Section 706(8)(B) (1988 ed.), and the definition
of "handicap" contained in the Fair Housing Amendments Act of 1988, 42
U. S. C. Section 3602(h)(1) (1988 ed.). Congress' repetition of a well-established
term carries the implication that Congress intended the term to be construed
in accordance with pre-existing regulatory interpretations. See FDIC v.
Philadelphia Gear Corp., 476 U. S. 426, 437-438 (1986); Commissioner v.
Estate of Noel, 380 U. S. 678, 681-682 (1965); ICC v. Parker, 326 U. S.
60, 65 (1945). In this case, Congress did more than suggest this construction;
it adopted a specific statutory provision in the ADA directing as follows: |
| [54] | "Except as otherwise provided in this chapter, nothing in this chapter
shall be construed to apply a lesser standard than the standards applied
under title V of the Rehabilitation Act of 1973 (29 U. S. C. 790 et seq.)
or the regulations issued by Federal agencies pursuant to such title."
42 U. S. C. Section 12201(a). |
| [55] | The directive requires us to construe the ADA to grant at least as much
protection as provided by the regulations implementing the Rehabilitation
Act. |
| [56] | 1. |
| [57] | The first step in the inquiry under subsection (A) requires us to determine
whether respondent's condition constituted a physical impairment. The
Department of Health, Education and Welfare (HEW) issued the first regulations
interpreting the Rehabilitation Act in 1977. The regulations are of particular
significance because, at the time, HEW was the agency responsible for
coordinating the implementation and enforcement of Section 504. Consolidated
Rail Corporation v. Darrone, 465 U. S. 624, 634, (1984) (citing Exec.
Order No. 11914, 3 CFR 117 (1976-1980 Comp.)). The HEW regulations, which
appear without change in the current regulations issued by the Department
of Health and Human Services, define "physical or mental impairment" to
mean: |
| [58] | "(A)any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive, digestive, genito-urinary;
hemic and lymphatic; skin; and endocrine; or |
| [59] | "(B)any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities." 45 CFR Section 84.3(j)(2)(i) (1997). |
| [60] | In issuing these regulations, HEW decided against including a list of
disorders constituting physical or mental impairments, out of concern
that any specific enumeration might not be comprehensive. 42 Fed. Reg.
22685 (1977), reprinted in 45 CFR pt. 84, App. A, p. 334 (1997). The commentary
accompanying the regulations, however, contains a representative list
of disorders and conditions constituting physical impairments, including
"such diseases and conditions as orthopedic, visual, speech, and hearing
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and ... drug addiction and alcoholism." Ibid. |
| [61] | In 1980, the President transferred responsibility for the implementation
and enforcement of Section 504 to the Attorney General. See, e.g., Exec.
Order No. 12250, 3 CFR 298 (1981). The regulations issued by the Justice
Department, which remain in force to this day, adopted verbatim the HEW
definition of physical impairment quoted above. 28 CFR Section 41.31(a)(1)
(1997). In addition, the representative list of diseases and conditions
originally relegated to the commentary accompanying the HEW regulations
were incorporated into the text of the regulations. Ibid. |
| [62] | HIV infection is not included in the list of specific disorders constituting
physical impairments, in part because HIV was not identified as the cause
of AIDS until 1983. See Barré-Sinoussi et al., Isolation of a T-Lymphotropic
Retrovirus from a Patient at Risk for Acquired Immune Deficiency Syndrome
(AIDS), 220 Science 868 (1983); Gallo et al., Frequent Detection and Isolation
of Cytopathic Retroviruses (HTLV-III) from Patients with AIDS and at Risk
for AIDS, 224 Science 500 (1984); Levy et al., Isolation of Lymphocytopathic
Retroviruses from San Francisco Patients with AIDS, 225 Science 840 (1984).
HIV infection does fall well within the general definition set forth by
the regulations, however. |
| [63] | The disease follows a predictable and, as of today, an unalterable course.
Once a person is infected with HIV, the virus invades different cells
in the blood and in body tissues. Certain white blood cells, known as
helper T-lymphocytes or CD4+ cells, are particularly vulnerable to HIV.
The virus attaches to the CD4 receptor site of the target cell and fuses
its membrane to the cell's membrane. HIV is a retrovirus, which means
it uses an enzyme to convert its own genetic material into a form indistinguishable
from the genetic material of the target cell. The virus' genetic material
migrates to the cell's nucleus and becomes integrated with the cell's
chromosomes. Once integrated, the virus can use the cell's own genetic
machinery to replicate itself. Additional copies of the virus are released
into the body and infect other cells in turn. Young, The Replication Cycle
of HIV-1, in The AIDS Knowledge Base, pp. 3.1-2 to 3.1-7 (P. Cohen, M.
Sande, & P. Volberding eds., 2d ed. 1994) (hereinafter AIDS Knowledge
Base); Folks & Hart, The Life Cycle of Human Immunodeficiency Virus
Type 1, in AIDS: Etiology, Diagnosis, Treatment and Prevention 29-39 (V.
DeVita et al. eds., 4th ed. 1997) (hereinafter AIDS: Etiology); Greene,
Molecular Insights into HIV-1 Infection, in The Medical Management of
AIDS 18-24 (M. Sande & P. Volberding eds., 5th ed. 1997) (hereinafter
Medical Management of AIDS). Although the body does produce antibodies
to combat HIV infection, the antibodies are not effective in eliminating
the virus. Pantaleo et al., Immunopathogenesis of Human Immunodeficiency
Virus Infection, in AIDS: Etiology 79; Garner, HIV Vaccine Development,
in AIDS Knowledge Base 3.6-5; Haynes, Immune Responses to Human Immunodeficiency
Virus Infection, in AIDS: Etiology 91. |
| [64] | The virus eventually kills the infected host cell. CD4+ cells play a
critical role in coordinating the body's immune response system, and the
decline in their number causes corresponding deterioration of the body's
ability to fight infections from many sources. Tracking the infected individual's
CD4+ cell count is one of the most accurate measures of the course of
the disease. Greene, Medical Management of AIDS 19, 24. Osmond, Classification
and Staging of HIV Disease, in AIDS Knowledge Base 1.1-8; Saag, Clinical
Spectrum of Human Immunodeficiency Virus Diseases, in AIDS: Etiology 204. |
| [65] | The initial stage of HIV infection is known as acute or primary HIV
infection. In a typical case, this stage lasts three months. The virus
concentrates in the blood. The assault on the immune system is immediate.
The victim suffers from a sudden and serious decline in the number of
white blood cells. There is no latency period. Mononucleosis-like symptoms
often emerge between six days and six weeks after infection, at times
accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopathy),
muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and
neurological disorders. Usually these symptoms abate within 14 to 21 days.
HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV
can be detected within 10 weeks. Carr & Cooper, Primary HIV Infection,
in Medical Management of AIDS 89-91; Cohen & Volberding, Clinical
Spectrum of HIV Disease, in AIDS Knowledge Base 4.1-7; Crowe & McGrath,
Acute HIV Infection, in AIDS Knowledge Base 4.2-1 to 4.2-4; Saag, AIDS:
Etiology 204-205. |
| [66] | After the symptoms associated with the initial stage subside, the disease
enters what is referred to sometimes as its asymptomatic phase. The term
is a misnomer, in some respects, for clinical features persist throughout,
including lymphadenopathy, dermatological disorders, oral lesions, and
bacterial infections. Although it varies with each individual, in most
instances this stage lasts from 7 to 11 years. The virus now tends to
concentrate in the lymph nodes, though low levels of the virus continue
to appear in the blood. Cohen & Volberding, AIDS Knowledge 4.1-4,
4.1-8; Saag, AIDS: Etiology 205-206; Strapans & Feinberg, Natural
History and Immunopathogenesis of HIV-1 Disease, in Medical Management
of AIDS 38. It was once thought the virus became inactive during this
period, but it is now known that the relative lack of symptoms is attributable
to the virus' migration from the circulatory system into the lymph nodes.
Cohen & Volberding, AIDS Knowledge Base 4.1-4. The migration reduces
the viral presence in other parts of the body, with a corresponding diminution
in physical manifestations of the disease. The virus, however, thrives
in the lymph nodes, which, as a vital point of the body's immune response
system, represents an ideal environment for the infection of other CD4+
cells. Strapans & Feinberg, Medical Management of AIDS 33-34. Studies
have shown that viral production continues at a high rate. Cohen &
Volberding, AIDS Knowledge Base 4.1-4; Strapans & Feinberg, Medical
Management of AIDS 38. CD4+ cells continue to decline an average of 5%
to 10% (40 to 80 cells/mm3) per year throughout this phase. Saag, AIDS:
Etiology 207. |
| [67] | A person is regarded as having AIDS when his or her CD4+ count drops
below 200 cells/mm3 of blood or when CD4+ cells comprise less than 14%
of his or her total lymphocytes. U. S. Dept. of Health and Human Services,
Public Health Service, CDC, 1993 Revised Classification System for HIV
Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents
and Adults, 41 Morbidity & Mortality Weekly Rep., No. RR-17 (Dec.
18, 1992); Osmond, AIDS Knowledge Base 1.1-2; Saag, AIDS: Etiology 207;
Ward, Petersen, & Jaffe, Current Trends in the Epidemiology of HIV/AIDS,
in Medical Management of AIDS 3. During this stage, the clinical conditions
most often associated with HIV, such as pneumocystis carninii pneumonia,
Kaposi's sarcoma, and non-Hodgkins lymphoma, tend to appear. In addition,
the general systemic disorders present during all stages of the disease,
such as fever, weight loss, fatigue, lesions, nausea, and diarrhea, tend
to worsen. In most cases, once the patient's CD4+ count drops below 10
cells/mm3, death soon follows. Cohen & Volberding, AIDS Knowledge
Base 4.1-9; Saag, AIDS: Etiology 207-209. |
| [68] | In light of the immediacy with which the virus begins to damage the
infected person's white blood cells and the severity of the disease, we
hold it is an impairment from the moment of infection. As noted earlier,
infection with HIV causes immediate abnormalities in a person's blood,
and the infected person's white cell count continues to drop throughout
the course of the disease, even when the attack is concentrated in the
lymph nodes. In light of these facts, HIV infection must be regarded as
a physiological disorder with a constant and detrimental effect on the
infected person's hemic and lymphatic systems from the moment of infection.
HIV infection satisfies the statutory and regulatory definition of a physical
impairment during every stage of the disease. |
| [69] | 2. |
| [70] | The statute is not operative, and the definition not satisfied, unless
the impairment affects a major life activity. Respondent's claim throughout
this case has been that the HIV infection placed a substantial limitation
on her ability to reproduce and to bear children. App. 14; 912 F. Supp.,
at 586; 107 F. 3d, at 939. Given the pervasive, and invariably fatal,
course of the disease, its effect on major life activities of many sorts
might have been relevant to our inquiry. Respondent and a number of amici
make arguments about HIV's profound impact on almost every phase of the
infected person's life. See Brief for Respondent Sidney Abbott 24-27;
Brief for American Medical Association as Amicus Curiae 20; Brief for
Infectious Diseases Society of America et al. as Amici Curiae 7-11. In
light of these submissions, it may seem legalistic to circumscribe our
Discussion to the activity of reproduction. We have little doubt that
had different parties brought the suit they would have maintained that
an HIV infection imposes substantial limitations on other major life activities. |
| [71] | From the outset, however, the case has been treated as one in which
reproduction was the major life activity limited by the impairment. It
is our practice to decide cases on the grounds raised and considered in
the Court of Appeals and included in the question on which we granted
certiorari. See, e.g., Blessing v. Freestone, 520 U. S. 329, 340, n. 3
(1997) (citing this Court's Rule 14.1(a)); Capitol Square Review and Advisory
Bd. v. Pinette, 515 U. S. 753, 760 (1995). We ask, then, whether reproduction
is a major life activity. |
| [72] | We have little difficulty concluding that it is. As the Court of Appeals
held, "[t]he plain meaning of the word `major' denotes comparative importance"
and "suggest[s] that the touchstone for determining an activity's inclusion
under the statutory rubric is its significance." 107 F. 3d, at 939, 940.
Reproduction falls well within the phrase "major life activity." Reproduction
and the sexual dynamics surrounding it are central to the life process
itself. |
| [73] | While petitioner concedes the importance of reproduction, he claims
that Congress intended the ADA only to cover those aspects of a person's
life which have a public, economic, or daily character. Brief for Petitioner
14, 28, 30, 31; see also id., at 36-37 (citing Krauel v. Iowa Methodist
Medical Center, 95 F. 3d 674, 677 (CA8 1996)). The argument founders on
the statutory language. Nothing in the definition suggests that activities
without a public, economic, or daily dimension may somehow be regarded
as so unimportant or insignificant as to fall outside the meaning of the
word "major." The breadth of the term confounds the attempt to limit its
construction in this manner. |
| [74] | As we have noted, the ADA must be construed to be consistent with regulations
issued to implement the Rehabilitation Act. See 42 U. S. C. Section 12201(a).
Rather than enunciating a general principle for determining what is and
is not a major life activity, the Rehabilitation Act regulations instead
provide a representative list, defining term to include "functions such
as caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." 45 CFR Section 84.3(j)(2)(ii)
(1997); 28 CFR Section 41.31(b)(2) (1997). As the use of the term "such
as" confirms, the list is illustrative, not exhaustive. |
| [75] | These regulations are contrary to petitioner's attempt to limit the
meaning of the term "major" to public activities. The inclusion of activities
such as caring for one's self and performing manual tasks belies the suggestion
that a task must have a public or economic character in order to be a
major life activity for purposes of the ADA. On the contrary, the Rehabilitation
Act regulations support the inclusion of reproduction as a major life
activity, since reproduction could not be regarded as any less important
than working and learning. Petitioner advances no credible basis for confining
major life activities to those with a public, economic, or daily aspect.
In the absence of any reason to reach a contrary Conclusion, we agree
with the Court of Appeals' determination that reproduction is a major
life activity for the purposes of the ADA. |
| [76] | 3. |
| [77] | The final element of the disability definition in subsection (A) is
whether respondent's physical impairment was a substantial limit on the
major life activity she asserts. The Rehabilitation Act regulations provide
no additional guidance. 45 CFR pt. 84, App. A, p. 334 (1997). |
| [78] | Our evaluation of the medical evidence leads us to conclude that respondent's
infection substantially limited her ability to reproduce in two independent
ways. First, a woman infected with HIV who tries to conceive a child imposes
on the man a significant risk of becoming infected. The cumulative results
of 13 studies collected in a 1994 textbook on AIDS indicates that 20%
of male partners of women with HIV became HIV-positive themselves, with
a majority of the studies finding a statistically significant risk of
infection. Osmond & Padian, Sexual Transmission of HIV, in AIDS Knowledge
Base 1.9-8, and tbl. 2; see also Haverkos & Battjes, Female-to-Male
Transmission of HIV, 268 JAMA 1855, 1856, tbl. (1992) (cumulative results
of 16 studies indicated 25% risk of female-to-male transmission). (Studies
report a similar, if not more severe, risk of male-to-female transmission.
See, e.g., Osmond & Padian, AIDS Knowledge Base 1.9-3, tbl. 1, 1.9-6
to 1.9-7.) |
| [79] | Second, an infected woman risks infecting her child during gestation
and childbirth, i.e., perinatal transmission. Petitioner concedes that
women infected with HIV face about a 25% risk of transmitting the virus
to their children. 107 F. 3d, at 942; 912 F. Supp., at 387, n. 6. Published
reports available in 1994 confirm the accuracy of this statistic. Report
of a Consensus Workshop, Maternal Factors Involved in Mother-to-Child
Transmission of HIV-1, 5 J. Acquired Immune Deficiency Syndromes 1019,
1020 (1992) (collecting 13 studies placing risk between 14% and 40%, with
most studies falling within the 25% to 30% range); Connor et al., Reduction
of Maternal-Infant Transmission of Human Immunodeficiency Virus Type 1
with Zidovudine Treatment, 331 New Eng. J. Med. 1173, 1176 (1994) (placing
risk at 25.5%); see also Strapans & Feinberg, Medical Management of
AIDS 32 (studies report 13% to 45% risk of infection, with average of
approximately 25%). |
| [80] | Petitioner points to evidence in the record suggesting that antiretroviral
therapy can lower the risk of perinatal transmission to about 8%. App.
53; see also Connor, supra, at 1176 (8.3%); Sperling et al., Maternal
Viral Load, Zidovudine Treatment, and the Risk of Transmission of Human
Immunodeficiency Virus Type 1 from Mother to Infant, 335 New Eng. J. Med.
1621, 1622 (1996) (7.6%). The Solicitor General questions the relevance
of the 8% figure, pointing to regulatory language requiring the substantiality
of a limitation to be assessed without regard to available mitigating
measures. Brief for United States as Amicus Curiae 18, n. 10 (citing 28
CFR pt. 36, App. B, p. 611 (1997); 29 CFR pt. 1630, App., p. 351 (1997)).
We need not resolve this dispute in order to decide this case, however.
It cannot be said as a matter of law that an 8% risk of transmitting a
dread and fatal disease to one's child does not represent a substantial
limitation on reproduction. |
| [81] | The Act addresses substantial limitations on major life activities,
not utter inabilities. Conception and childbirth are not impossible for
an HIV victim but, without doubt, are dangerous to the public health.
This meets the definition of a substantial limitation. The decision to
reproduce carries economic and legal consequences as well. There are added
costs for antiretroviral therapy, supplemental insurance, and long-term
health care for the child who must be examined and, tragic to think, treated
for the infection. The laws of some States, moreover, forbid persons infected
with HIV from having sex with others, regardless of consent. Iowa Code
Sections 139.1, 139.31 (1997); Md. Health Code Ann. Section 18-601.1(a)
(1994); Mont. Code Ann. Sections 50-18-101, 50-18-112 (1997); Utah Code
Ann. Section 26-6-3.5(3) (Supp. 1997); id., Section 26-6-5 (1995); Wash.
Rev. Code Section 9A.36.011(1)(b) (Supp. 1998); see also N. D. Cent. Code
Section 12.1-20-17 (1997). |
| [82] | In the end, the disability definition does not turn on personal choice.
When significant limitations result from the impairment, the definition
is met even if the difficulties are not insurmountable. For the statistical
and other reasons we have cited, of course, the limitations on reproduction
may be insurmountable here. Testimony from the respondent that her HIV
infection controlled her decision not to have a child is unchallenged.
App. 14; 912 F. Supp., at 587; 107 F. 3d, at 942. In the context of reviewing
summary judgment, we must take it to be true. Fed. Rule Civ. Proc. 56(e).
We agree with the District Court and the Court of Appeals that no triable
issue of fact impedes a ruling on the question of statutory coverage.
Respondent's HIV infection is a physical impairment which substantially
limits a major life activity, as the ADA defines it. In view of our holding,
we need not address the second question presented, i.e., whether HIV infection
is a per se disability under the ADA. |
| [83] | B. |
| [84] | Our holding is confirmed by a consistent course of agency interpretation
before and after enactment of the ADA. Every agency to consider the issue
under the Rehabilitation Act found statutory coverage for persons with
asymptomatic HIV. Responsibility for administering the Rehabilitation
Act was not delegated to a single agency, but we need not pause to inquire
whether this causes us to withhold deference to agency interpretations
under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837, 844 (1984). It is enough to observe that the well-reasoned
views of the agencies implementing a statute "constitute a body of experience
and informed judgment to which courts and litigants may properly resort
for guidance." Skidmore v. Swift & Co., 323 U. S. 134, 139-140 (1944). |
| [85] | One comprehensive and significant administrative precedent is a 1988
opinion issued by the Office of Legal Counsel of the Department of Justice
(OLC) concluding that the Rehabilitation Act "protects symptomatic and
asymptomatic HIV-infected individuals against discrimination in any covered
program." Application of Section 504 of the Rehabilitation Act to HIV-Infected
Individuals, 12 Op. Off. Legal Counsel 264, 264-265 (Sept. 27, 1988) (preliminary
print) (footnote omitted). Relying on a letter from Surgeon General C.
Everett Koop stating that, "from a purely scientific perspective, persons
with HIV are clearly impaired" even during the asymptomatic phase, OLC
determined asymptomatic HIV was a physical impairment under the Rehabilitation
Act because it constituted a "physiological disorder or condition affecting
the hemic and lymphatic systems." Id., at 271 (internal quotation marks
omitted). OLC determined further that asymptomatic HIV imposed a substantial
limit on the major life activity of reproduction. The Opinion said: |
| [86] | "Based on the medical knowledge available to us, we believe that it
is reasonable to conclude that the life activity of procreation ... is
substantially limited for an asymptomatic HIV-infected individual. In
light of the significant risk that the AIDS virus may be transmitted to
a baby during pregnancy, HIV-infected individuals cannot, whether they
are male or female, engage in the act of procreation with the normal expectation
of bringing forth a healthy child." Id., at 273. |
| [87] | In addition, OLC indicated that "[t]he life activity of engaging in
sexual relations is threatened and probably substantially limited by the
contagiousness of the virus." Id., at 274. Either consideration was sufficient
to render asymptomatic HIV infection a handicap for purposes of the Rehabilitation
Act. In the course of its Opinion, OLC considered, and rejected, the contention
that the limitation could be discounted as a voluntary response to the
infection. The limitation, it reasoned, was the infection's manifest physical
effect. Id., at 274, and n. 13. Without exception, the other agencies
to address the problem before enactment of the ADA reached the same result.
Federal Contract Compliance Manual App. 6D, 8 FEP Manual 405:352 (Dec.
23, 1988); In re David Ritter, No. 03890089, 1989 WL 609697, *10 (EEOC,
Dec. 8, 1989); see also Comptroller General's Task Force on AIDS in the
Workplace, Coping with AIDS in the GAO Workplace: Task Force Report 29
(Dec. 1987); Report of the Presidential Commission on the Human Immunodeficiency
Virus Epidemic 113-114, 122-123 (June 1988). Agencies have adhered to
this Conclusion since the enactment of the ADA as well. See 5 CFR Section
1636.103 (1997); 7 CFR Section 15e.103 (1998); 22 CFR Section 1701.103
(1997); 24 CFR Section 9.103 (1997); 34 CFR Section 1200.103 (1997); 45
CFR Sections 2301.103, 2490.103 (1997); In re Westchester County Medical
Center, [1991-1994 Transfer Binder] CCH Employment Practices Guide ¶ ;5340,
pp. 6110-6112 (Apr. 20, 1992), aff'd, id., ¶ ;5362, pp. 6249-6250 (Dept.
of Health & Human Servs. Departmental Appeals Bd., Sept. 25, 1992);
In re Rosebud Sioux Tribe, No. 93-504-1, 1994 WL 603015 (Dept. of Health
& Human Servs. Departmental Appeals Bd., July 14, 1994); In re David
T. Martin, No. 01954089, 1997 WL 151524, *4 (EEOC, Mar. 27, 1997). |
| [88] | Every court which addressed the issue before the ADA was enacted in
July 1990, moreover, concluded that asymptomatic HIV infection satisfied
the Rehabilitation Act's definition of a handicap. See Doe v. Garrett,
903 F. 2d 1455, 1457 (CA11 1990), cert. denied, 499 U. S. 904 (1991);
Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524, 1536 (MD Fla.
1987); Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376, 381
(CD Cal. 1987); District 27 Community School Bd. v. Board of Ed. of New
York, 130 Misc. 2d 398, 413-415, 502 N. Y. S. 2d 325, 335-337 (Sup. Ct.,
Queens Cty. 1986); cf. Baxter v. Belleville, 720 F. Supp. 720, 729 (SD
Ill. 1989) (Fair Housing Amendments Act); Cain v. Hyatt, 734 F. Supp.
671, 679 (ED Pa. 1990) (Pennsylvania Human Relations Act). (For cases
finding infection with HIV to be a handicap without distinguishing between
symptomatic and asymptomatic HIV, see Martinez ex rel. Martinez v. School
Bd. of Hillsborough Cty., 861 F. 2d 1502, 1506 (CA11 1988); Chalk v. United
States Dist. Ct., 840 F. 2d 701, 706 (CA9 1988); Doe v. Dolton Elementary
School Dist. No. 148, 694 F. Supp. 440, 444-445 (ND Ill. 1988); Robertson
v. Granite City Community Unit School Dist. No. 9, 684 F. Supp. 1002,
1006-1007 (SD Ill. 1988); Local 1812, AFGE v. United States Dept. of State,
662 F. Supp. 50, 54 (DC 1987); cf. Association of Relatives and Friends
of AIDS Patients v. Regulations and Permits Admin., 740 F. Supp. 95, 103
(PR 1990) (Fair Housing Amendments Act).) We are aware of no instance
prior to the enactment of the ADA in which a court or agency ruled that
HIV infection was not a handicap under the Rehabilitation Act. |
| [89] | Had Congress done nothing more than copy the Rehabilitation Act definition
into the ADA, its action would indicate the new statute should be construed
in light of this unwavering line of administrative and judicial interpretation.
All indications are that Congress was well aware of the position taken
by OLC when enacting the ADA and intended to give that position its active
endorsement. H. R. Rep. No. 101-485, pt. 2, p. 52 (1990) (endorsing the
analysis and Conclusion of the OLC Opinion); id., pt. 3, at 28, n. 18
(same); S. Rep. No. 101-116, pp. 21, 22 (1989) (same). As noted earlier,
Congress also incorporated the same definition into the Fair Housing Amendments
Act of 1988. See 42 U. S. C. Section 3602(h)(1). We find it significant
that the implementing regulations issued by the Department of Housing
and Urban Development (HUD) construed the definition to include infection
with HIV. 54 Fed. Reg. 3232, 3245 (1989) (codified at 24 CFR Section 100.201
(1997)); see also In re Willie L. Williams, 2A P-H Fair Housing-Fair Lending
¶ ;25,007, pp. 25,111-25,113 (HUD Off. Admin. Law Judges, Mar. 22, 1991)
(adhering to this interpretation); In re Elroy R. and Dorothy Burns Trust,
2A P-H Fair Housing-Fair Lending ¶ ;25,073, p. 25,678 (HUD Off. Admin.
Law Judges, June 17, 1994) (same). Again the legislative record indicates
that Congress intended to ratify HUD's interpretation when it reiterated
the same definition in the ADA. H. R. Rep. No. 101-485, pt. 2, at 50;
id., pt. 3, at 27; id., pt. 4, at 36; S. Rep. No. 101-116, at 21. |
| [90] | We find the uniformity of the administrative and judicial precedent
construing the definition significant. When administrative and judicial
interpretations have settled the meaning of an existing statutory provision,
repetition of the same language in a new statute indicates, as a general
matter, the intent to incorporate its administrative and judicial interpretations
as well. See, e.g., Lorillard v. Pons, 434 U. S. 575, 580-581 (1978).
The uniform body of administrative and judicial precedent confirms the
Conclusion we reach today as the most faithful way to effect the congressional
design. |
| [91] | C. |
| [92] | Our Conclusion is further reinforced by the administrative guidance
issued by the Justice Department to implement the public accommodation
provisions of Title III of the ADA. As the agency directed by Congress
to issue implementing regulations, see 42 U. S. C. Section 12186(b), to
render technical assistance explaining the responsibilities of covered
individuals and institutions, Section 12206(c), and to enforce Title III
in court, Section 12188(b), the Department's views are entitled to deference.
See Chevron, 467 U. S., at 844. |
| [93] | The Justice Department's interpretation of the definition of disability
is consistent with our analysis. The regulations acknowledge that Congress
intended the ADA's definition of disability to be given the same construction
as the definition of handicap in the Rehabilitation Act. 28 CFR Section
36.103(a) (1997); id., pt. 36, App. B, pp. 608, 609. The regulatory definition
developed by HEW to implement the Rehabilitation Act is incorporated verbatim
in the ADA regulations. Section 36.104. The Justice Department went further,
however. It added "HIV infection (symptomatic and asymptomatic)" to the
list of disorders constituting a physical impairment. Section 36.104(1)(iii).
The technical assistance the Department has issued pursuant to 42 U. S.
C. Section 12206 similarly concludes that persons with asymptomatic HIV
infection fall within the ADA's definition of disability. See, e.g., U.
S. Dept. of Justice, Civil Rights Division, The Americans with Disabilities
Act: Title III Technical Assistance Manual 9 (Nov. 1993); Response to
Congressman Sonny Callahan, 5 Nat. Disability L. Rep. (LRP) ¶ ;360, p.
1167 (Feb. 9, 1994); Response to A. Laurence Field, 5 Nat. Disability
L. Rep. (LRP) ¶ ;21, p. 80 (Sept. 10, 1993). Any other Conclusion, the
Department reasoned, would contradict Congress' affirmative ratification
of the administrative interpretations given previous versions of the same
definition. 28 CFR pt. 36, App. B, p. 609, 610 (1997) (citing the OLC
Opinion and HUD regulations); 56 Fed. Reg. 7455, 7456 (1991) (same) (notice
of proposed rulemaking). |
| [94] | We also draw guidance from the views of the agencies authorized to administer
other sections of the ADA. See 42 U. S. C. Section 12116 (authorizing
EEOC to issue regulations implementing Title I); Section 12134(a) (authorizing
the Attorney General to issue regulations implementing the public services
provisions of Title II, subtitle A); Sections 12149, 12164, 12186 (authorizing
the Secretary of Transportation to issue regulations implementing the
transportation-related provisions or Titles II and III); Section 12206(c)
(authorizing the same agencies to offer technical assistance for the provisions
they administer). These agencies, too, concluded that HIV infection is
a physical impairment under the ADA. 28 CFR Section 35.104(1)(iii) (1997);
49 CFR Sections 37.3, 38.3 (1997); 56 Fed. Reg. 13858 (1991); U. S. Dept.
of Justice, Civil Rights Division, The Americans with Disabilities Act:
Title II Technical Assistance Manual 4 (Nov. 1993); EEOC, A Technical
Assistance Manual on the Employment Provisions (Title I) of the Americans
with Disabilities Act II-3 (Jan. 1992) (hereinafter EEOC Technical Assistance
Manual); EEOC Interpretive Manual Section 902.2(d), pp. 902-13 to 902-14
(reissued Mar. 14, 1995) (hereinafter EEOC Interpretive Manual), reprinted
in 2 BNA EEOC Compliance Manual 902:0013 (1998). Most categorical of all
is EEOC's Conclusion that "an individual who has HIV infection (including
asymptomatic HIV infection) is an individual with a disability." EEOC
Interpretive Manual Section 902.4(c)(1), p. 902-21; accord, id., Section
902.2(d), p. 902-14, n. 18. In the EEOC's view, "impairments ... such
as HIV infection, are inherently substantially limiting." 29 CFR pt. 1630,
App., p. 350 (1997); EEOC Technical Assistance Manual II-4; EEOC Interpretive
Manual Section 902.4(c)(1), p. 902-21. |
| [95] | The regulatory authorities we cite are consistent with our holding that
HIV infection, even in the so-called asymptomatic phase, is an impairment
which substantially limits the major life activity of reproduction. |
| [96] | III. |
| [97] | The petition for certiorari presented three other questions for review.
The questions stated: |
| [98] | "3.When deciding under title III of the ADA whether a private health
care provider must perform invasive procedures on an infectious patient
in his office, should courts defer to the health care provider's professional
judgment, as long as it is reasonable in light of then-current medical
knowledge? |
| [99] | "4.What is the proper standard of judicial review under title III of
the ADA of a private health care provider's judgment that the performance
of certain invasive procedures in his office would pose a direct threat
to the health or safety of others? |
| [100] | "5.Did petitioner, Randon Bragdon, D. M. D., raise a genuine issue of
fact for trial as to whether he was warranted in his judgment that the
performance of certain invasive procedures on a patient in his office
would have posed a direct threat to the health or safety of others?" Pet.
for Cert. i. |
| [101] | Of these, we granted certiorari only on question three. The question
is phrased in an awkward way, for it conflates two separate inquiries.
In asking whether it is appropriate to defer to petitioner's judgment,
it assumes that petitioner's assessment of the objective facts was reasonable.
The central premise of the question and the assumption on which it is
based merit separate consideration. |
| [102] | Again, we begin with the statute. Notwithstanding the protection given
respondent by the ADA's definition of disability, petitioner could have
refused to treat her if her infectious condition "pose[d] a direct threat
to the health or safety of others." 42 U. S. C. Section 12182(b)(3). The
ADA defines a direct threat to be "a significant risk to the health or
safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or services."
Ibid. Parallel provisions appear in the employment provisions of Title
I. Sections 12111(3), 12113(b). |
| [103] | The ADA's direct threat provision stems from the recognition in School
Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 287 (1987), of the importance
of prohibiting discrimination against individuals with disabilities while
protecting others from significant health and safety risks, resulting,
for instance, from a contagious disease. In Arline, the Court reconciled
these objectives by construing the Rehabilitation Act not to require the
hiring of a person who posed "a significant risk of communicating an infectious
disease to others." Id., at 287, n. 16. Congress amended the Rehabilitation
Act and the Fair Housing Act to incorporate the language. See 29 U. S.
C. Section 706(8)(D) (excluding individuals who "would constitute a direct
threat to the health or safety of other individuals"); 42 U. S. C. Section
3604(f)(9) (same). It later relied on the same language in enacting the
ADA. See 28 CFR pt. 36, App. B, p. 626 (1997) (ADA's direct threat provision
codifies Arline). Because few, if any, activities in life are risk free,
Arline and the ADA do not ask whether a risk exists, but whether it is
significant. Arline, supra, at 287, and n. 16; 42 U. S. C. Section 12182(b)(3). |
| [104] | The existence, or nonexistence, of a significant risk must be determined
from the standpoint of the person who refuses the treatment or accommodation,
and the risk assessment must be based on medical or other objective evidence.
Arline, supra, at 288; 28 CFR Section 36.208(c) (1997); id., pt. 36, App.
B, p. 626. As a health care professional, petitioner had the duty to assess
the risk of infection based on the objective, scientific information available
to him and others in his profession. His belief that a significant risk
existed, even if maintained in good faith, would not relieve him from
liability. To use the words of the question presented, petitioner receives
no special deference simply because he is a health care professional.
It is true that Arline reserved "the question whether courts should also
defer to the reasonable medical judgments of private physicians on which
an employer has relied." 480 U. S., at 288, n. 18. At most, this statement
reserved the possibility that employers could consult with individual
physicians as objective third-party experts. It did not suggest that an
individual physician's state of mind could excuse discrimination without
regard to the objective reasonableness of his actions. |
| [105] | Our Conclusion that courts should assess the objective reasonableness
of the views of health care professionals without deferring to their individual
judgments does not answer the implicit assumption in the question presented,
whether petitioner's actions were reasonable in light of the available
medical evidence. In assessing the reasonableness of petitioner's actions,
the views of public health authorities, such as the U. S. Public Health
Service, CDC, and the National Institutes of Health, are of special weight
and authority. Arline, supra, at 288; 28 CFR pt. 36, App. B, p. 626 (1997).
The views of these organizations are not conclusive, however. A health
care professional who disagrees with the prevailing medical consensus
may refute it by citing a credible scientific basis for deviating from
the accepted norm. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts Section 32, p. 187 (5th ed. 1984). |
| [106] | We have reviewed so much of the record as necessary to illustrate the
application of the rule to the facts of this case. For the most part,
the Court of Appeals followed the proper standard in evaluating the petitioner's
position and conducted a thorough review of the evidence. Its rejection
of the District Court's reliance on the Marianos affidavits was a correct
application of the principle that petitioner's actions must be evaluated
in light of the available, objective evidence. The record did not show
that CDC had published the Conclusion set out in the affidavits at the
time petitioner refused to treat respondent. 107 F. 3d, at 946, n. 7. |
| [107] | A further illustration of a correct application of the objective standard
is the Court of Appeals' refusal to give weight to the petitioner's offer
to treat respondent in a hospital. Id., at 943, n. 4. Petitioner testified
that he believed hospitals had safety measures, such as air filtration,
ultraviolet lights, and respirators, which would reduce the risk of HIV
transmission. App. 151. Petitioner made no showing, however, that any
area hospital had these safeguards or even that he had hospital privileges.
Id., at 31. His expert also admitted the lack of any scientific basis
for the Conclusion that these measures would lower the risk of transmission.
Id., at 209. Petitioner failed to present any objective, medical evidence
showing that treating respondent in a hospital would be safer or more
efficient in preventing HIV transmission than treatment in a well-equipped
dental office. |
| [108] | We are concerned, however, that the Court of Appeals might have placed
mistaken reliance upon two other sources. In ruling no triable issue of
fact existed on this point, the Court of Appeals relied on the 1993 CDC
Dentistry Guidelines and the 1991 American Dental Association Policy on
HIV. 107 F. 3d, at 945-946. This evidence is not definitive. As noted
earlier, the CDC Guidelines recommended certain universal precautions
which, in CDC's view, "should reduce the risk of disease transmission
in the dental environment." U. S. Dept. of Health and Human Services,
Public Health Service, CDC, Recommended Infection Control Practices for
Dentistry, 41 Morbidity & Mortality Weekly Rep. No. RR-18, p. 1 (May
28, 1993). The Court of Appeals determined that, "[w]hile the guidelines
do not state explicitly that no further risk-reduction measures are desirable
or that routine dental care for HIV-positive individuals is safe, those
two Conclusions seem to be implicit in the guidelines' detailed delineation
of procedures for office treatment of HIV-positive patients." 107 F. 3d,
at 946. In our view, the Guidelines do not necessarily contain implicit
assumptions conclusive of the point to be decided. The Guidelines set
out CDC's recommendation that the universal precautions are the best way
to combat the risk of HIV transmission. They do not assess the level of
risk. |
| [109] | Nor can we be certain, on this record, whether the 1991 American Dental
Association Policy on HIV carries the weight the Court of Appeals attributed
to it. The Policy does provide some evidence of the medical community's
objective assessment of the risks posed by treating people infected with
HIV in dental offices. It indicates: |
| [110] | "Current scientific and epidemiologic evidence indicates that there
is little risk of transmission of infectious diseases through dental treatment
if recommended infection control procedures are routinely followed. Patients
with HIV infection may be safely treated in private dental offices when
appropriate infection control procedures are employed. Such infection
control procedures provide protection both for patients and dental personnel."
App. 225. |
| [111] | We note, however, that the Association is a professional organization,
which, although a respected source of information on the dental profession,
is not a public health authority. It is not clear the extent to which
the Policy was based on the Association's assessment of dentists' ethical
and professional duties in addition to its scientific assessment of the
risk to which the ADA refers. Efforts to clarify dentists' ethical obligations
and to encourage dentists to treat patients with HIV infection with compassion
may be commendable, but the question under the statute is one of statistical
likelihood, not professional responsibility. Without more information
on the manner in which the American Dental Association formulated this
Policy, we are unable to determine the Policy's value in evaluating whether
petitioner's assessment of the risks was reasonable as a matter of law. |
| [112] | The court considered materials submitted by both parties on the cross
motions for summary judgment. The petitioner was required to establish
that there existed a genuine issue of material fact. Evidence which was
merely colorable or not significantly probative would not have been sufficient.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249-250 (1986). |
| [113] | We acknowledge the presence of other evidence in the record before the
Court of Appeals which, subject to further arguments and examination,
might support affirmance of the trial court's ruling. For instance, the
record contains substantial testimony from numerous health experts indicating
that it is safe to treat patients infected with HIV in dental offices.
App. 66-68, 88-90, 264-266, 268. We are unable to determine the import
of this evidence, however. The record does not disclose whether the expert
testimony submitted by respondent turned on evidence available in September
1994. See id., at 69-70 (expert testimony relied in part on materials
published after September 1994). |
| [114] | There are reasons to doubt whether petitioner advanced evidence sufficient
to raise a triable issue of fact on the significance of the risk. Petitioner
relied on two principal points: First, he asserted that the use of high-speed
drills and surface cooling with water created a risk of airborne HIV transmission.
The study on which petitioner relied was inconclusive, however, determining
only that "[f]urther work is required to determine whether such a risk
exists." Johnson & Robinson, Human Immunodeficiency Virus-1 (HIV-1)
in the Vapors of Surgical Power Instruments, 33 J. of Medical Virology
47, 47 (1991). Petitioner's expert witness conceded, moreover, that no
evidence suggested the spray could transmit HIV. His opinion on airborne
risk was based on the absence of contrary evidence, not on positive data.
App. 166. Scientific evidence and expert testimony must have a traceable,
analytical basis in objective fact before it may be considered on summary
judgment. See General Electric Co. v. Joiner, 522 U. S. ___, ___, ___
(1997) (slip op., at 7, 9). |
| [115] | Second, petitioner argues that, as of September 1994, CDC had identified
seven dental workers with possible occupational transmission of HIV. See
U. S. Dept. of Health and Human Services, Public Health Service, CDC,
HIV/AIDS Surveillance Report, vol. 6, no. 1, p. 15, tbl. 11 (Mid-year
ed. June 1994). These dental workers were exposed to HIV in the course
of their employment, but CDC could not determine whether HIV infection
had resulted. Id., at 15, n. 3. It is now known that CDC could not ascertain
whether the seven dental workers contracted the disease because they did
not present themselves for HIV testing at an appropriate time after their
initial exposure. Gooch et al., Percutaneous Exposures to HIV-Infected
Blood Among Dental Workers Enrolled in the CDC Needlestick Study, 126
J. American Dental Assn. 1237, 1239 (1995). It is not clear on this record,
however, whether this information was available to petitioner in September
1994. If not, the seven cases might have provided some, albeit not necessarily
sufficient, support for petitioner's position. Standing alone, we doubt
it would meet the objective, scientific basis for finding a significant
risk to the petitioner. |
| [116] | Our evaluation of the evidence is constrained by the fact that on these
and other points we have not had briefs and arguments directed to the
entire record. In accepting the case for review, we declined to grant
certiorari on question five, which asked whether petitioner raised a genuine
issue of fact for trial. Pet. for Cert. i. As a result, the briefs and
arguments presented to us did not concentrate on the question of sufficiency
in light all of the submissions in the summary judgment proceeding. "When
attention has been focused on other issues, or when the court from which
a case comes has expressed no views on a controlling question, it may
be appropriate to remand the case rather than deal with the merits of
that question in this Court." Dandridge v. Williams, 397 U. S. 471, 476,
n. 6 (1970). This consideration carries particular force where, as here,
full briefing directed at the issue would help place a complex factual
record in proper perspective. Resolution of the issue will be of importance
to health care workers not just for the result but also for the precision
and comprehensiveness of the reasons given for the decision. |
| [117] | We conclude the proper course is to give the Court of Appeals the opportunity
to determine whether our analysis of some of the studies cited by the
parties would change its Conclusion that petitioner presented neither
objective evidence nor a triable issue of fact on the question of risk.
In remanding the case, we do not foreclose the possibility that the Court
of Appeals may reach the same Conclusion it did earlier. A remand will
permit a full exploration of the issue through the adversary process. |
| [118] | The determination of the Court of Appeals that respondent's HIV infection
was a disability under the ADA is affirmed. The judgment is vacated, and
the case is remanded for further proceedings consistent with this opinion. |
| [119] | It is so ordered. |
| [120] | Stevens, J., Concurring |
| [121] | BRAGDON v. ABBOTT |
| [122] | ____ U. S. ____ (1998) |
| [123] | SUPREME COURT OF THE UNITED STATES |
| [124] | No. 97-156 |
| [125] | RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT et al. |
| [126] | on writ of certiorari to the united states court of appeals for the
first circuit |
| [127] | [June 25, 1998] |
| [128] | Justice Stevens, with whom Justice Breyer joins, Concurring. |
| [129] | The Court's opinion demonstrates that respondent's HIV infection easily
falls within the statute's definition of "disability." Moreover, the Court's
Discussion in Part III of the relevant evidence has persuaded me that
the judgment of the Court of Appeals should be affirmed. I do not believe
petitioner has sustained his burden of adducing evidence sufficient to
raise a triable issue of fact on the significance of the risk posed by
treating respondent in his office. The Court of Appeals reached that Conclusion
after a careful and extensive study of the record; its analysis on this
question was perfectly consistent with the legal reasoning in Justice
Kennedy's opinion for the Court; and the latter opinion itself explains
that petitioner relied on data that was inconclusive and speculative at
best, see ante, at 27-28. Cf. General Electric Co. v. Joiner, 522 U. S.
___ (1997). |
| [130] | There are not, however, five Justices who agree that the judgment should
be affirmed. Nor does it appear that there are five Justices who favor
a remand for further proceedings consistent with the views expressed in
either Justice Kennedy's opinion for the Court or the opinion of the Chief
Justice. Because I am in agreement with the legal analysis in Justice
Kennedy's opinion, in order to provide a judgment supported by a majority,
I join that opinion even though I would prefer an outright affirmance.
Cf. Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., Concurring
in result). |
| [131] | Ginsburg, J., Concurring |
| [132] | BRAGDON v. ABBOTT |
| [133] | ____ U. S. ____ (1998) |
| [134] | SUPREME COURT OF THE UNITED STATES |
| [135] | No. 97-156 |
| [136] | RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT et al. |
| [137] | on writ of certiorari to the united states court of appeals for the
first circuit |
| [138] | [June 25, 1998] |
| [139] | Justice Ginsburg, Concurring. |
| [140] | HIV infection, as the description set out in the Court's opinion documents,
ante, at 8-10, has been regarded as a disease limiting life itself. See
Brief for American Medical Association as Amicus Curiae 20. The disease
inevitably pervades life's choices: education, employment, family and
financial undertakings. It affects the need for and, as this case shows,
the ability to obtain health care because of the reaction of others to
the impairment. No rational legislator, it seems to me apparent, would
require nondiscrimination once symptoms become visible but permit discrimination
when the disease, though present, is not yet visible. I am therefore satisfied
that the statutory and regulatory definitions are well met. HIV infection
is "a physical . . . impairment that substantially limits . . . major
life activities," or is so perceived, 42 U. S. C. Sections 12102(2)(A),(C),
including the afflicted individual's family relations, employment potential,
and ability to care for herself, see 45 CFR Section 84.3(j)(2)(ii) (1997);
28 CFR Section 41.31(b)(2) (1997). |
| [141] | I further agree, in view of the "importance [of the issue] to health
care workers," ante, at 28, that it is wise to remand, erring, if at all,
on the side of caution. By taking this course, the Court ensures a fully
informed determination whether respondent Abbott's disease posed "a significant
risk to the health or safety of [petitioner Bragdon] that [could not]
be eliminated by a modification of policies, practices, or procedures
. . . ." 42 U. S. C. Section 12182(b)(3). |
| [142] | Opinion of Rehnquist, C. J. |
| [143] | BRAGDON v. ABBOTT |
| [144] | ____ U. S. ____ (1998) |
| [145] | SUPREME COURT OF THE UNITED STATES |
| [146] | No. 97-156 |
| [147] | RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT et al. |
| [148] | on writ of certiorari to the united states court of appeals for the
first circuit |
| [149] | [June 25, 1998] |
| [150] | Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas
join, and with whom Justice O'Connor joins as to Part II, Concurring in
the judgment in part and Dissenting in part. |
| [151] | I. |
| [152] | Is respondent -- who has tested positive for the human immunodeficiency
virus (HIV) but was asymptomatic at the time she suffered discriminatory
treatment -- a person with a "disability" as that term is defined in the
Americans with Disabilities Act of 1990 (ADA)? The term "disability" is
defined in the ADA to include: |
| [153] | "(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; |
| [154] | "(B) a record of such an impairment; or |
| [155] | "(C) being regarded as having such an impairment." 42 U. S. C. Section
12102(2). |
| [156] | It is important to note that whether respondent has a disability covered
by the ADA is an individualized inquiry. The Act could not be clearer
on this point: Section 12102(2) states explicitly that the disability
determination must be made "with respect to an individual." Were this
not sufficiently clear, the Act goes on to provide that the "major life
activities" allegedly limited by an impairment must be those "of such
individual." Section 12102(3)(A). |
| [157] | The individualized nature of the inquiry is particularly important in
this case because the District Court disposed of it on summary judgment.
Thus all disputed issues of material fact must be resolved against respondent.
She contends that her asymptomatic HIV status brings her within the first
definition of a "disability."*fn1
She must therefore demonstrate, inter alia, that she was (1) physically
or mentally impaired and that such impairment (2) substantially limited
(3) one or more of her major life activities. |
| [158] | Petitioner does not dispute that asymptomatic HIV-positive status is
a physical impairment. I therefore assume this to be the case, and proceed
to the second and third statutory requirements for "disability." |
| [159] | According to the Court, the next question is "whether reproduction is
a major life activity." Ante, at 11. That, however, is only half of the
relevant question. As mentioned above, the ADA's definition of a "disability"
requires that the major life activity at issue be one "of such individual."
Section 12102(2)(A). The Court truncates the question, perhaps because
there is not a shred of record evidence indicating that, prior to becoming
infected with HIV, respondent's major life activities included reproduction*fn2
(assuming for the moment that reproduction is a major life activity at
all). At most, the record indicates that after learning of her HIV status,
respondent, whatever her previous inclination, conclusively decided that
she would not have children. App. 14. There is absolutely no evidence
that, absent the HIV, respondent would have had or was even considering
having children. Indeed, when asked during her deposition whether her
HIV infection had in any way impaired her ability to carry out any of
her life functions, respondent answered "No." Ibid. It is further telling
that in the course of her entire brief to this Court, respondent studiously
avoids asserting even once that reproduction is a major life activity
to her. To the contrary, she argues that the "major life activity" inquiry
should not turn on a particularized assessment of the circumstances of
this or any other case. Brief for Respondent Sidney Abbott 30-31. |
| [160] | But even aside from the facts of this particular case, the Court is
simply wrong in concluding as a general matter that reproduction is a
"major life activity." Unfortunately, the ADA does not define the phrase
"major life activities." But the Act does incorporate by reference a list
of such activities contained in regulations issued under the Rehabilitation
Act. 42 U. S. C. Section 12201(a); 45 CFR Section 84.3(j)(2)(ii) (1997).
The Court correctly recognizes that this list of major life activities
"is illustrative, not exhaustive," ante, at 12, but then makes no attempt
to demonstrate that reproduction is a major life activity in the same
sense that "caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working" are. |
| [161] | Instead, the Court argues that reproduction is a "major" life activity
in that it is "central to the life process itself." Ante, at 11-12. In
support of this reading, the Court focuses on the fact that " `major'
" indicates " `comparative importance,' " ibid.; see also Webster's Collegiate
Dictionary 702 (10th ed. 1994) ("greater in dignity, rank, importance,
or interest"), ignoring the alternative definition of "major" as "greater
in quantity, number, or extent," ibid. It is the latter definition that
is most consistent with the ADA's illustrative list of major life activities. |
| [162] | No one can deny that reproductive decisions are important in a person's
life. But so are decisions as to who to marry, where to live, and how
to earn one's living. Fundamental importance of this sort is not the common
thread linking the statute's listed activities. The common thread is rather
that the activities are repetitively performed and essential in the day-to-day
existence of a normally functioning individual. They are thus quite different
from the series of activities leading to the birth of a child. |
| [163] | Both respondent, Brief for Respondent Sidney Abbott 20, n. 24, and the
United States as amicus curiae, Brief for United States as Amicus Curiae
13, argue that reproduction must be a major life activity because regulations
issued under the ADA define the term "physical impairment" to include
physiological disorders affecting the reproductive system. 28 CFR Section
36.104 (1997). If reproduction were not a major life activity, they argue,
then it would have made little sense to include the reproductive disorders
in the roster of physical impairments. This argument is simply wrong.
There are numerous disorders of the reproductive system, such as dysmenorrhea
and endometriosis, which are so painful that they limit a woman's ability
to engage in major life activities such as walking and working. And, obviously,
cancer of the various reproductive organs limits one's ability to engage
in numerous activities other than reproduction. |
| [164] | But even if I were to assume that reproduction is a major life activity
of respondent, I do not agree that an asymptomatic HIV infection "substantially
limits" that activity. The record before us leaves no doubt that those
so infected are still entirely able to engage in sexual intercourse, give
birth to a child if they become pregnant, and perform the manual tasks
necessary to rear a child to maturity. See App. 53-54. While individuals
infected with HIV may choose not to engage in these activities, there
is no support in language, logic, or our case law for the proposition
that such voluntary choices constitute a "limit" on one's own life activities. |
| [165] | The Court responds that the ADA "addresses substantial limitations on
major life activities, not utter inabilities." Ante, at 14. I agree, but
fail to see how this assists the Court's cause. Apart from being unable
to demonstrate that she is utterly unable to engage in the various activities
that comprise the reproductive process, respondent has not even explained
how she is less able to engage in those activities. |
| [166] | Respondent contends that her ability to reproduce is limited because
"the fatal nature of HIV infection means that a parent is unlikely to
live long enough to raise and nurture the child to adulthood." Brief for
Respondent Sidney Abbott 22. But the ADA's definition of a disability
is met only if the alleged impairment substantially "limits" (present
tense) a major life activity. 42 U. S. C. Section 12102(2)(A). Asymptomatic
HIV does not presently limit respondent's ability to perform any of the
tasks necessary to bear or raise a child. Respondent's argument, taken
to its logical extreme, would render every individual with a genetic marker
for some debilitating disease "disabled" here and now because of some
possible future effects. |
| [167] | In my view, therefore, respondent has failed to demonstrate that any
of her major life activities were substantially limited by her HIV infection. |
| [168] | II. |
| [169] | While the Court concludes to the contrary as to the "disability" issue,
it then quite correctly recognizes that petitioner could nonetheless have
refused to treat respondent if her condition posed a "direct threat."
The Court of Appeals affirmed the judgment of the District Court granting
summary judgment to respondent on this issue. The Court vacates this portion
of the Court of Appeals' decision, and remands the case to the lower court,
presumably so that it may "determine whether our analysis of some of the
studies cited by the parties would change its Conclusion that petitioner
presented neither objective evidence nor a triable issue of fact on the
question of risk." Ante, at 29. I agree that the judgment should be vacated,
although I am not sure I understand the Court's cryptic direction to the
lower court. |
| [170] | "[D]irect threat" is defined as a "significant risk to the health or
safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aides or services."
Section 12182(b)(3). This statutory definition of a direct threat consists
of two parts. First, a court must ask whether treating the infected patient
without precautionary techniques would pose a "significant risk to the
heath or safety of others." Ibid. Whether a particular risk is significant
depends on: |
| [171] | " `(a) the nature of the risk (how the disease is transmitted), (b)
the duration of the risk (how long is the carrier infectious), (c) the
severity of the risk (what is the potential harm to third parties) and
(d) the probabilities the disease will be transmitted and will cause varying
degrees of harm.' " School Bd. of Nassau Cty. v. Arline, 480 U. S. 273,
288 (1987). |
| [172] | Even if a significant risk exists, a health practitioner will still
be required to treat the infected patient if "a modification of policies,
practices, or procedures" (in this case, universal precautions) will "eliminat[e]"
the risk. Section 12182(b)(3). |
| [173] | I agree with the Court that "the existence, or nonexitence, of a significant
risk must be determined from the standpoint of the person who refuses
the treatment or accommodation," as of the time that the decision refusing
treatment is made. Ante, at 23. I disagree with the Court, however, that
"[i]n assessing the reasonableness of petitioner's actions, the views
of public health authorities ... are of special weight and authority."
Ante, at 24. Those views are, of course, entitled to a presumption of
validity when the actions of those authorities themselves are challenged
in court, and even in disputes between private parties where Congress
has committed that dispute to adjudication by a public health authority.
But in litigation between private parties originating in the federal courts,
I am aware of no provision of law or judicial practice that would require
or permit courts to give some scientific views more credence than others
simply because they have been endorsed by a politically appointed public
health authority (such as the Surgeon General). In litigation of this
latter sort, which is what we face here, the credentials of the scientists
employed by the public health authority, and the soundness of their studies,
must stand on their own. The Court cites no authority for its limitation
upon the courts' truth-finding function, except the statement in School
Bd. of Nassau Cty. v. Arline, 480 U. S., at 288, that in making findings
regarding the risk of contagion under the Rehabilitation Act, "courts
normally should defer to the reasonable medical judgments of public health
officials." But there is appended to that dictum the following footnote,
which makes it very clear that the Court was urging respect for medical
judgment, and not necessarily respect for "official" medical judgment
over "private" medical judgment: "This case does not present, and we do
not address, the question whether courts should also defer to the reasonable
medical judgments of private physicians on which an employer has relied."
Id., at 288, n. 18. |
| [174] | Applying these principles here, it is clear to me that petitioner has
presented more than enough evidence to avoid summary judgment on the "direct
threat" question. In June 1994, the Centers for Disease Control and Prevention
published a study identifying seven instances of possible transmission
of HIV from patients to dental workers. See Ante, at 27. While it is not
entirely certain whether these dental workers contracted HIV during the
course of providing dental treatment, the potential that the disease was
transmitted during the course of dental treatment is relevant evidence.
One need only demonstrate "risk," not certainty of infection. See Arline,
supra, at 288 (" `the probabilities the disease will be transmitted' "
is a factor in assessing risk). Given the "severity of the risk" involved
here, i.e., near certain death, and the fact that no public health authority
had outlined a protocol for eliminating this risk in the context of routine
dental treatment, it seems likely that petitioner can establish that it
was objectively reasonable for him to conclude that treating respondent
in his office posed a "direct threat" to his safety. |
| [175] | In addition, petitioner offered evidence of 42 documented incidents
of occupational transmission of HIV to healthcare workers other than dental
professionals. App. 106. The Court of Appeals dismissed this evidence
as irrelevant because these health professionals were not dentists. 107
F. 3d 934, 947 (CA1 1997). But the fact that the health care workers were
not dentists is no more valid a basis for distinguishing these transmissions
of HIV than the fact that the health care workers did not practice in
Maine. At a minimum, petitioner's evidence was sufficient to create a
triable issue on this question, and summary judgment was accordingly not
appropriate. |
| [176] | O'Connor, J., Dissenting |
| [177] | BRAGDON v. ABBOTT |
| [178] | ____ U. S. ____ (1998) |
| [179] | SUPREME COURT OF THE UNITED STATES |
| [180] | No. 97-156 |
| [181] | RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT et al. |
| [182] | on writ of certiorari to the united states court of appeals for the
first circuit |
| [183] | [June 25, 1998] |
| [184] | Justice O'Connor, Concurring in the judgment in part and Dissenting
in part. |
| [185] | I agree with The Chief Justice that respondent's claim of disability
should be evaluated on an individualized basis and that she has not proven
that her asymptomatic HIV status substantially limited one or more of
her major life activities. In my view, the act of giving birth to a child,
while a very important part of the lives of many women, is not generally
the same as the representative major life activities of all persons --
"caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working" -- listed in regulations relevant
to the Americans with Disabilities Act of 1990. See 45 CFR Section 84.3(j)(2)(ii)
(1997); 28 CFR Section 41.31(b)(2) (1997). Based on that Conclusion, there
is no need to address whether other aspects of intimate or family relationships
not raised in this case could constitute major life activities; nor is
there reason to consider whether HIV status would impose a substantial
limitation on one's ability to reproduce if reproduction were a major
life activity. |
| [186] | I join in Part II of The Chief Justice's opinion Concurring in the judgment
in part and Dissenting in part, which concludes that the Court of Appeals
failed to properly determine whether respondent's condition posed a direct
threat. Accordingly, I agree that a remand is necessary on that issue. |
| |
|
| Opinion Footnotes | |
| |
|
| [187] | *fn1
Respondent alternatively urges us to find that she is disabled in that
she is "regarded as" such. 42 U. S. C. Section 12102(2)(C). We did not,
however, grant certiorari on that question. While respondent can advance
arguments not within the question presented in support of the judgment
below, Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119, n.
14 (1985); Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970), we
have rarely addressed arguments not asserted below. It was the United
States, not respondent, that asserted the "regarded as" argument below.
The Court of Appeals declined to address it, as should we. In any event,
the "regarded as" prong requires a plaintiff to demonstrate that the defendant
regarded him as having "such an impairment" (i.e., one that substantially
limits a major life activity). 42 U. S. C. Section 12102(2)(C). Respondent
has offered no evidence to support the assertion that petitioner regarded
her as having an impairment that substantially limited her ability to
reproduce, as opposed to viewing her as simply impaired. |
| [188] | *fn2
Calling reproduction a major life activity is somewhat inartful. Reproduction
is not an activity at all, but a process. One could be described as breathing,
walking, or performing manual tasks, but a human being (as opposed to
a copier machine or a gremlin) would never be described as reproducing.
I assume that in using the term reproduction, respondent and the Court
are referring to the numerous discrete activities that comprise the reproductive
process, and that is the sense in which I have used the term. |
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