TOPICS > Politics

Expanding Coverage

June 30, 1998 at 12:00 AM EDT


MARGARET WARNER: In a closely watched case, the Supreme Court last week issued a major ruling on the nation’s leading disability law. In a 5-4 decision, the court said that people with HIV, the virus that causes AIDS, are protected by the Americans With Disabilities Act even though they don’t yet show any symptoms. Until now, the ADA was widely regarded as covering people with full-blown AIDS, but not necessarily people whose infection fell short of that. The case was brought by Sidney Abbott, a Maine woman who is HIV-positive.

In September 1994, Abbott was told by her dentist, Dr. Randon Bragdon, that he would not fill her cavity except in a hospital setting. Abbott sued Bragdon for violating the Americans With Disabilities Act, or the ADA. Though she showed no signs of AIDS, Abbott contended that HIV had already left her with a disability because it was discouraging her from having children. The ADA, passed by Congress and signed by President Bush in 1990, prohibits discrimination against the disabled in the private workplace, housing and health care.

The ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.” The law did not specify, however, what it meant by “major life activities.” Writing for the majority, Justice Anthony Kennedy said that HIV “was an impairment from the moment of infection” because it makes pregnancy exceedingly risky for HIV-infected women. In the main dissent, Chief Justice William Rehnquist said that “major life activities” under the ADA should be confined to those that are “repetitively performed and essential in the day-to-day existence of a normally functioning individual,” a category that would not include reproduction. Last week’s ruling could affect the estimated four hundred to six hundred thousand Americans infected with HIV who don’t yet have AIDS. What isn’t clear is its impact on millions of Americans with other serious but currently manageable diseases.

MARGARET WARNER: For more on the impact of this ruling we’re joined now by Chai Feldblum, a professor at Georgetown University Law Center. She filed a brief in the case on behalf of more than 60 AIDS and disabilities groups, and Stephen Bokat, a senior vice president and general counsel for the US Chamber of Commerce, which represents 3 million companies and businesses. Professor Feldblum, first, what are the practical implications of this decision for someone with HIV?

CHAI FELDBLUM, Georgetown University Law Center: Well, the brief decision reaffirms that people with HIV cannot be discriminated against in businesses like if they go to the dentist or the doctor. In employment, if they’re trying to keep a job by governments that are running programs, it says that people with HIV infection, whether it’s symptomatic, asymptomatic, any point in the spectrum, these people cannot be discriminated against, and there’s no justification for treating these people any differently from anyone else.

MARGARET WARNER: Would you agree with that?

STEPHEN BOKAT, General Counsel, U.S. Chamber of Commerce: I certainly would. There’s no question, businesses have accommodated people who are HIV positive and have AIDS in their employment for many years, and this decision will not require otherwise.

MARGARET WARNER: Now, when you say they accommodated people meaning what?

STEPHEN BOKAT: They have employed them. The law requires that a person be not discriminated against because they have a disability, in this case, HIV positive, or AIDS, and that if they have a limitation in their ability to perform a job, that the employer reasonably accommodates that limitation. Now if they can’t do the job and you don’t have to hire them where you have to end their employment, but as long as they can do it, you have to provide some accommodations.

MARGARET WARNER: Is it the case, in your view, that businesses in general not discriminated against people with HIV?

CHAI FELDBLUM: Well, I think there are tons and tons of businesses out there that have not discriminated, are not discriminating, because a lot of people understand now that there’s nothing to fear from someone who’s HIV infected. But the law is not in place for the 90 percent of people who are acting as they should. The law is in place for the 10 percent-you know, the employers who feel incorrectly that it’s some danger to them to have someone who’s HIV-infected, so it is a small number. But if you’re the person who’s just been fired from the job, or just been told by a hospital that it’s not going to serve you, it doesn’t matter that there are a hundred other employers or hospitals that are doing the right thing. The law is there to say everyone has the right to be treated equally. If they can do the job, they have to be given the opportunity to perform their job and naturally differently if they can get the money to pay for the hospital, then they can’t be denied services because they’re HIV-infected.

MARGARET WARNER: Now, what are the implications that now this would be whether it was HIV or any other disability? Does it have implications for insurance, for health insurance?

STEPHEN BOKAT: Well, the courts actually have been mixed on that. A number of the courts have said as long as you offer the same coverage for everyone, whether they have a disease or not, you don’t have to cover particular diseases. But that is not a settled issue, and this could well have implications for health insurance, particularly because the case turned on the question of a person’s ability to reproduce. That did not-at least people have now focused on that as a disability, putting aside the HIV, and this may say that problems reproducing could be covered under health insurance.

MARGARET WARNER: All right. Going beyond HIV, what do you think the broader implications of this ruling are?

CHAI FELDBLUM: Well, I think, number one, as Steve said, and where we will now disagree, where before we agreed about what business should do, I think it is definitely an unsettled question about what the ADA requires in insurance. So, for example, the courts have been clear that an employer can’t put a $5,000 cap on AIDS and a million dollar cap on other conditions. So there they have restricted the employers and regular insurance companies’ ability to discriminate in insurance. But some courts have allowed there to be discrimination in mental health coverage, less in mental health. Now maybe the question is an insurance plan doesn’t fertility treatment, which to me I think, you know, if I needed fertility treatments, I would find it discriminatory if my plan didn’t cover that and covered lots of other things. That is going to be, you know, litigated in the court. The other bigger question is the definition of disability generally.

When Congress passed the ADA, it knew that it was covering people with full-blown AIDS IN People with asymptomatic HIV infection. If someone who lobbied that law and listened to the debate, they knew it, but they used the definition of disability that you had up in your screen that were technical legal words, physical and mental impairment that limits a major life activity. And over the last eight years the courts have been constricting that definition. They’ve held people with breast cancer are not covered under the ADA, people with epilepsy, people with diabetes. But I can tell you members of Congress thought they were covering, so this case in a way is a bit of a stop to that constricted reading of the definition that was happening in the lower courts. So hopefully, as the lower courts now read this opinion, they will start loosening up the reins and allow people with breast cancer and epilepsy and diabetes if they can do the job, if they have the money to pay for the services, not to be turned away just because of their disability.

MARGARET WARNER: Do you agree, it’s going to expand into these other diseases that are serious but not incapacitated?

STEPHEN BOKAT: I think for the most part most employers have not discriminated against people with those disabilities. Yes, I think this decision will be a signal to the lower courts to give them a more expansive reading to what is a disability. But, you know, we believe there have to be some limits and there is going to be a good deal of litigation about what this case means.

MARGARET WARNER: Well, give me an example of an accommodation or a situation that you think it would be unreasonable to ask the employer to treat someone as disabled.

STEPHEN BOKAT: For example, accommodations can-somebody needs to take a large amount of time off and they’re away from the workplace for extended periods of time. The employer needs someone there to perform the job. Maybe it’s fertility treatment, and the only place they can get the fertility treatments is to go to California and they’re in the Washington area. So they say I need to go there for weeks at a time, and employer needs the employee in the workplace. That might be an example where the accommodation starts to impinge on the employer’s ability to get his job done.

MARGARET WARNER: Do you agree that that’s now a possibility, that kind of at least the claim on behalf of an employer?

CHAI FELDBLUM: No. I think that’s a completely unfounded fear. I mean, people should remember that with President Bush that signed the Americans With Disabilities Act in 1990, and we in the disability community negotiated not only with the business community but with the Bush administration to support this law, the law already says that if an accommodation would impose an undue hardship, which someone being away for a significant period of time in the day is an undue hardship, you don’t have to give that accommodation. The law has balances built into it already. There is no way we could have gotten a Republican administration and a Democratic Congress together to pass this law without the balances-this fear and misunderstanding about what the law requires, and I do hope that this Supreme Court case that will bring up the visibility of the law will also bring up the fact that the law has balances put into it already, because the point of the law is not to put businesses out of business. How would that help any of us? It’s to treat people equally who can do the job, or achieve the services.

STEPHEN BOKAT: I don’t disagree that the balances aren’t built in. The problem is that there are some very aggressive lawyers that keep trying to push the envelope and push the envelope, and employers are often pushed beyond what they think is reasonable, which in the gray cases and trying to figure out exactly how far you have to go that it’s a real difficulty for business and that-in a statute like this.

MARGARET WARNER: All right. Let me give you the opportunity to give us an example of someone with breast cancer or diabetes or any other disease like that, that you now think would get protection, that wouldn’t have before, that you think is reasonable. What kind of protection? Give us a situation.

CHAI FELDBLUM: Well, sometimes someone who has a particular medical condition does need to go get to chemotherapy and needs to be out of work for two weeks. It’s a defined amount of time, and it’s a type of job where two weeks would not impose an undue hardship on the employer. Sometimes before this case if someone asked for that accommodation and the employer thought, who wants to deal with this woman, now she’s asking two weeks and then maybe she’s going to be depressed about her breast cancer, and I’m just going to fire her now. This law now says you’d better hold on. You’d got to give her that accommodation if it is not an undue hardship. And in most cases people don’t need any accommodation; they just need the employer not to say this person is too much trouble because they have fill in the blank-whatever medical condition. Now, this law will say clearly you got to treat that person on the merits.

STEPHEN BOKAT: 99.9 percent of employers in this country certainly accommodated employees with conditions like breast cancer and are very sympathetic to those kinds of conditions. I think it’s an extremely rare circumstance even before this case where an employer would not accommodate someone who needed chemotherapy for something like breast cancer, so I bristle a little at the suggestion that there are employers out there that are now going to be forced into doing this, whereas in the past they had not, because I don’t think that’s really an accurate reflection of how business has responded to this law.

MARGARET WARNER: And very briefly, Mr. Bokat said he thought there’s going to be a lot more litigation. Do you agree?

CHAI FELDBLUM: I actually don’t think there’s going to be a ton more litigation than there has been. I would hope that both the business community and the civil rights community come together to figure out creatively how to deal with lawyers that really push the law beyond what it is intended to do.


STEPHEN BOKAT: Something we would be willing to do.

MARGARET WARNER: Well, good. Maybe it starts here. Thank you both very much.