Published October, 2008

EEOC v. Lee's Log Cabin, Inc., 546 F.3d 438 (7th Cir. 2008)

In a 2-1 decision that flies in the face of both scientific evidence and common sense, the Seventh Circuit Court of Appeals has affirmed a District Court decision that relies on an erroneous distinction between HIV and AIDS as the basis for its reasoning.

In this case, the EEOC filed suit on behalf of an HIV-positive plaintiff who was denied a restaurant waitstaff position. In its initial complaint, the EEOC claimed that the hiring denial was based on the plaintiff’s HIV disease, which is an impairment that substantially limits a major life activity and, therefore, is a disability for purposes of an ADA claim. Later, in a response to the defendant’s motion for summary judgment, the EEOC submitted affidavits that explained how the plaintiff’s impairment, described then as AIDS or HIV/AIDS, substantially limited a major life activity. The District Court refused to allow submission of the affidavits, however, because it determined that the change in terminology from “HIV” to “AIDS” amounted to a shift in factual basis for the claim and was raised too late in the process.

The Court of Appeals followed the reasoning of the District Court in holding that the terms HIV and AIDS are not synonymous for the purpose of determining whether the EEOC’s “belated alternation of the factual basis of its claim” should have been entertained by the District Court. After a lengthy discussion of the distinction between HIV and AIDS, based in part on the U.S. Supreme Court’s reasoning in Bragdon v. Abbott, the Court of Appeals found that they are not the same condition and the EEOC erred in “altering” its claim.

The problems with this decision, as the dissent points out, are many. Most importantly, though, is the fact that HIV and AIDS are the same condition. Anyone who has AIDS is HIV-positive, and AIDS is one stage in the progression of HIV disease. Moreover, neither the plaintiff’s coverage as a “person with a disability” under the ADA in this case, nor the defendant’s refusal to hire her, in any way hinged on the clinical distinction between being HIV-positive and having a diagnosis of AIDS. The Court of Appeals’ artificial focus on an unwarranted, overly narrow characterization of HIV or AIDS as a disability for purposes of ADA coverage effectively allowed it to bypass the central question of whether discrimination had occurred.