A federal trial judge refused to dismiss a former employee’s ADA case against her municipal employer who radically and negatively altered her working situation shortly after she informed them that she had been diagnosed with HIV. Evidence of discrimination included the employer’s closing of a bathroom and kitchenette where the employee was stationed; switching her to a night shift during which she had no contact with others, and excluding her from social events to which other employees were invited.
Despite 2008 amendments to the ADA that removed any question as to whether HIV is a covered disability under the federal disability antidiscrimination law, the trial judge centered its discussion on whether HIV is in fact a covered disability under the law. Despite evidence of the impact of HIV on her health and the ADA’s explicit extension of the definition of disability to “immune system disorders,” among other related conditions, the judge concluded that the former worker’s case “survives summary judgment . . .by the thinnest of margins” and that her “failure to introduce testimony by a medical expert on the effects of her HIV diagnosis on her symptoms, though not fatal at this stage, will severely impede her chances of success at trial.” This view seems at direct odds with both the text and the intention of the ADA Amendments Act.
The opinion also illustrates the limitations of relying on a plaintiff’s physical aspects of a claimed disability rather than on the ADA’s protection of those whom employers “regard as” having a disability. Since the plaintiff was not seeking a reasonable accommodation (which the ADAAA excluded for plaintiffs relying on a “regarded as” claim), and since the judge agreed that there was ample evidence that the employer created a hostile environment in response to the plaintiff’s HIV status, it may be advisable for the plaintiff’s attorney to amend the complaint to include the claim that the discrimination against her was due to her employer’s “regarding her” as having a disability that made her infectious and unsafe to have in contact with others. Attorney Jose Rafael Santiago Pereles of Ponce, Puerto Rico represents the plaintiff.