Public Health Law Map - Beta 5 - Medical and Public Health Law Site

or recurrent, that the key word was major, and that reproduction was a major life
activity. This analysis potentially overrules many circuit cases that used a very
narrow definition of major life activity.
The third prong of the ADA definition is whether the impairment affects the major
life activity. Plaintiff argued that the chance of infecting a partner and passing the
infection on to her children affected the major life activity of reproduction. The
Court could find no guidance on this issue, but agreed that these factors certainly
affected a person’s decision to have children. The Court held that this satisfied the
ADA requirements, making her HIV infection a covered disability.
b) The Dissent on Major Life Activity
The Chief Justice’s opinion attacked this conclusion by focusing on the language in
the ADA that demands that the determinations of disability and accommodation be
individualized. This language was put into the ADA to prevent employers from
excluding disabled workers based on stereotypes of what persons with a specific
disability can do. The employer must give the employee a chance to do the job,
rather than have blanket exclusions based on laundry lists of disabilities. The Chief
Justice argued that this standard of individualized determination of disability should
also be applied to the plaintiff. The plaintiff rejected this individualized
determination and denied that she, personally, suffered any impairment to a major
life function:
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.”
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.
c) Unanswered Questions
Unfortunately, the Court’s opinion ignored the issue of whether the determination
of effect on a major life activity must be specific to the plaintiff. Instead, the court
presented a barrage of information about what a bad disease HIV is and how it is
clear that HIV-infected persons are impaired. It is clear that HIV infection does
affect several major life activities and that this case is correctly decided. However,
the Chief Justice’s concern with individualized determinations is well founded. Not
every disability is so clear-cut as to its effects on the major life activities. Many
diseases have a spectrum of effects, ranging from minor alterations in diagnostic
tests with little chance of progression, to full-blown disease with major illness and
death. This is especially problematic in mental illnesses, with their highly variable
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