Published November, 2008

EEOC v. Lee's Log Cabin, Inc., Amicus Brief on Rehearing Petition, Seventh Circuit Court of Appeals, ACLU (2008)

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 ACLU submitted this brief in support of the employee’s petition for a rehearing en banc, arguing that the original three-judge panel placed “undue importance” on the label assigned to the employee’s disabling condition. According to the brief, the label “HIV” or “AIDS” has limited relevance in terms of whether the employee’s disabling impairment substantially limited a major life activity.