Is HIV a disability under the Americans with Disabilities Act: unanswered questions after Bragdon v. Abbott.

AuthorMayer, Connie
PositionBragdon v. Abbott

    The condition known as acquired immunodeficiency syndrome ("AIDS") was first reported to the Centers for Disease Control (CDC) in 1981. (2) By 1983, scientists had identified a new human retrovirus called HIV or Human Immunodeficiency Virus, that was responsible for AIDS. (3) Since that time, the number of persons with HIV infection and AIDS has grown and HIV/AIDS now effects every country in the world. In July 1996, an estimated 22 million persons across the world were living with HIV infection. (4) Medical experts now know that HIV is a progressive disease that attacks the body at the outset and even during the Early Disease Stage, or so-called "asymptomatic stage," HIV continues to have severe deteriorating physical effects. But during this "asymptomatic" stage, most individuals generally have no outward manifestations of the HIV disease. (5) This fact raises the issue of whether a person with HIV who is asymptomatic can be held to be "disabled" for purposes of the protections of the Americans With Disabilities Act.

    Prior to the passage of the ADA in 1990, the term "individual with a handicap" had been clearly established under federal disability laws to include all people with HIV. Every reported decision under the Rehabilitation Act and the Fair Housing Amendment Act had determined that asymptomatic HIV was protected as a per se disability. (6) Prior to 1997, only a few Courts had faced the issue of whether a plaintiff with asymptomatic HIV was disabled under the ADA. (7) In 1997, the Fourth and First Circuit Courts of Appeal decided cases in direct conflict with one another, opening the door for the U. S. Supreme Court to review the issue of the definition of disability under the ADA because of the split created by these Circuit Court opinions.

    The two cases, Abbott v. Bragdon (8) and Runnebaum v. NationsBank of Maryland, N.A. (9) both involved plaintiffs who were HIV-positive but asymptomatic. The Abbott Court held that asymptomatic HIV was a disability and therefore the plaintiff who was seeking dental treatment was protected under the Americans With Disabilities Act. (10) The Runnebaum Court, on the other hand, took the opposite view and found that the plaintiff was not disabled within the meaning of the ADA and therefore was not protected from the alleged discriminatory firing by his employer. (11) This article explores the divergent analysis applied to the two cases and then discusses the Supreme Court's opinion in Bragdon v. Abbott. Finally, the article discusses what questions remain unanswered as a result of the Bragdon v. Abbott decision.


    HIV is a human virus that can infect and replicate in numerous types of human cells. (12) Certain immune-system T-cells, white blood cells contain a surface protein known as CD4 and are particularly susceptible to HIV infection. (13) Infected T-cells (T-cells that are "CD4+") eventually die, and as the number of such cells decreases, the body's ability to fight infection also decreases. The infected individual's CD4+ cell count is thus "the best predictive marker of relative risk for developing HIV-related opportunistic diseases. (14) As a result, HIV disease is viewed as progressing in stages that correspond to a level of CD4+ cells or that result in an AIDS-defining condition in the patient. (15)

    HIV disease begins with exposure to and infection by HIV. After infection, HIV immediately attacks the cells of the immune system. HIV attaches to the CD4 receptor on the surface of a T-cell and its membrane fuses with that of the host cell, injecting the viral genetic material into the host T-cell. (16) The host cell can then become a factory for the production of more copies of HIV's genetic material, and these copies spread to other cells. (17) Within two to four weeks after initial infection, high levels of circulating HIV can be detected. (18) As a result of this attack on the cells, HIV infection induces a chronic and progressive process with a broad spectrum of manifestations and complications from primary infection to life-threatening opportunistic infections. (19) There is, in fact, a single, continuous disease process beginning with the initial exposure to the infection and terminating in the advanced forms of immune deficiency, with death resulting from the complex interactions between the HIV infection itself and the secondary opportunistic infections and malignancies. (20)

    HIV disease is categorized by dividing the stages of the illness into five categories based CD4 count. The first stage of HIV disease is known as "acute retroviral seroconversion syndrome." (21) Within two to six weeks after initial infection, onset of symptoms usually occurs. (22) The most common symptoms include fevers, chronic abnormal enlargement of the lymph nodes, pharyngitis, and skin rash. Laboratory findings include anemia and thrombocytopenia. (23) Most symptoms diminish within two to three weeks but enlargement of the lymph nodes often persists throughout early HIV disease. (24)

    The second and third stages of HIV disease are known, respectively, as Early Stage Disease (CD4 count between 500 and 750 cells/mm3) and Middle Stage Disease (CD4 count between 200 and 500 cells/mm3). (25) The progression through these two relatively asymptomatic stages is the longest interval of HIV disease, with a typical duration of 10 years. (26) Most individuals in the Early Disease Stage have no symptoms related to HIV, other than mild-to-moderate lymphadenopathy (enlargement of the lymph nodes) which usually persists from the time of acute infection. (27) A consistent pattern of irregularities in the blood and immune symptoms can also be detected with laboratory tests. (28) A range of skin disorders and oral lesions often begin in the Early Stage Disease and persist through the Middle Stage. (29) Other mild-to-moderate symptoms may begin to appear during the Middle Stage Disease such as fatigue, night sweats, and weight loss. (30)

    As was noted above, CD4+ cell count is one of the most important markers of the disease's progression. Laboratory evidence demonstrates that CD4 cells decline steadily throughout Early Stage Disease. As HIV continues its attack on the immune system, a person with HIV experiences a slow, progressive decline in CD4+ cells (an average of 40 to 80 cells/mm 3 per year). (31) Additionally, it has been demonstrated that high levels of viral replication are present even among stable, asymptomatic individuals. (32) This replication of the virus is present in every organ system in the body. As a result, clinicians recommend antiretroviral therapy to patients even at the earliest stage of the disease and constant monitoring of the condition is required. (33)

    As the CD4+ count drops below 200 cells/mm3, the individual passes from the Middle Stage Disease to the Late Stage Disease which the CDC defines as AIDS. (34) Individuals with CD4 counts of less than 50 are in the final stage of AIDS known as Advanced HIV Disease. (35) Symptomatic HIV disease can range in duration from a brief period ending in death to a number of years. Symptoms at this stage include night sweats, chronic diarrhea, fever, weight loss, fatigue, and more frequent or severe skin and oral lesions. (36) "Nearly every organ system in the body can be affected," and "the effect of symptoms on the patient ranges from minimal to devastating." (37) When an individual with HIV reaches the final stages of the disease, CD4+ cells fall below 200 cells/mm3 and continue to decline. Opportunistic infections such as pneumocystis carinii pneumonia, encephalitis, and B-cell lymphoma begin to appear (38) When CD4+ counts drop below 50 cells/mm 3, an increasing array of opportunistic infections must be treated. (39) Neurological disease processes become especially prevalent including central nervous system lymphoma and dementia. Involuntary weight loss, or "wasting," are also common at this stage. (40)

    With aggressive antiretroviral therapy and prophylactic treatments designed to fend off opportunistic infections, the late stage of HIV disease can be managed for some time despite the profound immunosuppression brought about by HIV. (41) Recently, the incidence of AIDS-related deaths at this late stage of HIV disease declined, suggesting that "advancements in treatment are extending the lives of the most immunosupppressed HIV-infected patients". (42) However, death is still the expected occurrence at this stage of HIV disease and often death occurs because of an inability to control the opportunistic infections which the body cannot fight off. (43)

    In addition to the physical attack on the immune system, HIV infection creates serious mental health problems even in the earliest "asymptomatic" stage of the disease. (44) Persons living with HIV/AIDS may experience the same psychological reaction as those experienced by other terminally ill patients--disbelief, denial, numbness, anger, depression and suicidal ideation. (45) Yet unlike other terminal illnesses, such as cancer, a diagnosis of AIDS carries with it stigmatization and disapproval of a whole society. This disapproval often results in social ostracism and discrimination that create additional psychological stress. (46) In addition to its effect on the psychology of patients, in the later stages of the disease most patients experience some cognitive and affective changes related to HIV infection of the brain. Differentiating between the effects of anxiety and depression on cognition and the effects of neurological problems on cognition is difficult but may be crucial to proper diagnosis, intervention and therapy. (47)

    The mental health problems that are commonly experienced by persons living with AIDS include depression and anxiety, adjustment disorder, panic disorders, delirium and dementia. (48) Except for the last two, these problems exist in even the earliest stages of the HIV disease progression.

    Given the...

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