BRAGDON v. ABBOTT, 524 U.S. 624 (1998) 118 S.Ct. 2196
BRAGDON v. ABBOTT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Argued March 30, 1998
Decided June 25, 1998
Respondent Abbott is infected with the human immunodeficiency virus
(HIV), but had not manifested its most serious symptoms when the
incidents in question occurred. At that time, she went to
petitioner's office for a dental examination and disclosed her
HIV infection. Petitioner discovered a cavity and informed
respondent of his policy against filling cavities of HIV-infected
patients in his office. He offered to perform the work at a
hospital at no extra charge, though respondent would have to pay
for use of the hospital's facilities. She declined and filed
suit under, inter alia, the Americans with Disabilities
Act of 1990 (ADA), which prohibits discrimination against any
individual "on the basis of disability in the . . . enjoyment of
the . . . services . . . of any place of public accommodation by
any person who . . . operates [such] a place," 42 U.S.C. Ã‚Â§ 12182(a),
but qualifies the prohibition by providing: "Nothing
[herein] shall require an entity to permit an individual to
participate in or benefit from the . . . accommodations of such
entity where such individual poses a direct threat to the health
or safety of others," Ã‚Â§ 12182(b)(3). The District Court
granted respondent summary judgment. The First Circuit affirmed,
agreeing with the lower court that respondent's HIV was a
disability under the ADA even though her infection had not yet
progressed to the symptomatic stage, and that treating her in
petitioner's office would not have posed a direct threat to the
health and safety of others. In making the latter ruling, the
court relied on the 1993 Dentistry Guidelines of the Centers for
Disease Control and Prevention (CDC) and on the 1991 American
Dental Association Policy on HIV.
1. Even though respondent's HIV infection had not progressed to
the so-called symptomatic phase, it was a "disability" under
Ã‚Â§ 12102(2)(A), that is, "a physical . . . impairment that
substantially limits one or more of [an individual's] major life
activities." Pp. 630-647.
(a) The ADA definition is drawn almost verbatim from definitions
applicable to Ã‚Â§ 504 of the Rehabilitation Act of 1973 and
another federal statute. Because the ADA expressly provides that
"nothing [herein] shall be construed to apply a lesser standard
than . . . under . . . the Rehabilitation Act . . . or the
regulations issued . . . pursuant to [it],"
Ã‚Â§ 12201(a), this Court must construe the ADA to grant at
least as much protection as the regulations implementing the
Rehabilitation Act. Pp. 631-632.
(b) From the moment of infection and throughout every stage of
the disease, HIV infection satisfies the statutory and regulatory
definition of a "physical impairment." Applicable Rehabilitation
Act regulations define "physical or mental impairment" to mean
"any physiological disorder or condition . . . affecting . . .
the . . . body['s] . . . hemic and lymphatic [systems]." HIV
infection falls well within that definition. The medical
literature reveals that the disease follows a predictable and
unalterable course from infection to inevitable death. It causes
immediate abnormalities in a person's blood, and the infected
person's white cell count continues to drop throughout the course
of the disease, even during the intermediate stage when its
attack is concentrated in the lymph nodes. Thus, HIV infection
must be regarded as a physiological disorder with an immediate,
constant, and detrimental effect on the hemic and lymphatic
systems. Pp. 632-637.
(c) The life activity upon which respondent relies, her ability
to reproduce and to bear children, constitutes a "major life
activity" under the ADA. The plain meaning of the word "major"
denotes comparative importance and suggests that the touchstone
is an activity's significance. Reproduction and the sexual
dynamics surrounding it are central to the life process itself.
Petitioner's claim that Congress intended the ADA only to cover
those aspects of a person's life that have a public, economic, or
daily character founders on the statutory language. Nothing in
the definition suggests that activities without such a dimension
may somehow be regarded as so unimportant or insignificant as not
to be "major." This interpretation is confirmed by the
Rehabilitation Act regulations, which provide an illustrative,
nonexhaustive list of major life activities. Inclusion on that
list of activities such as caring for one's self, performing
manual tasks, working, and learning belies the suggestion that a
task must have a public or economic character. On the contrary,
the regulations support the inclusion of reproduction, which
could not be regarded as any less important than working and
learning. Pp. 637-639.
(d) Respondent's HIV infection "substantially limits" her major
life activity within the ADA's meaning. Although the
Rehabilitation Act regulations provide little guidance in this
regard, the Court's evaluation of the medical evidence
demonstrates that an HIV-infected woman's ability to reproduce is
substantially limited in two independent ways: If she tries to
conceive a child, (1) she imposes on her male partner a
statistically significant risk of becoming infected; and (2) she
risks infecting her child during gestation and childbirth,
transmission. Evidence suggesting that antiretroviral therapy
can lower the risk of perinatal transmission to about 8%, even
if relevant, does not avail petitioner because it cannot be
said as a matter of law that an 8% risk of transmitting a
dread and fatal disease to one's child does not represent a
substantial limitation on reproduction. The decision to
reproduce carries economic and legal consequences as well.
There are added costs for antiretroviral therapy, supplemental
insurance, and long-term health care for the child who must be
examined and treated. Some state laws, moreover, forbid
HIV-infected persons to have sex with others, regardless
of consent. In the context of reviewing summary judgment,
the Court must take as true respondent's unchallenged
testimony that her HIV infection controlled her decision not to
have a child. Pp. 639-642.
(e) The uniform body of administrative and judicial precedent
interpreting similar language in the Rehabilitation Act confirms
the Court's holding. Every agency and court to consider the
issue under the Rehabilitation Act has found statutory coverage
for persons with asymptomatic HIV. The uniformity of that
precedent is significant. When administrative and judicial
interpretations have settled the meaning of an existing statutory
provision, repetition of the same language in a new statute
indicates, as a general matter, Congress' intent to incorporate
such interpretations as well. See, e.g.,
Lorillard v. Pons, 434 U.S. 575, 580-581. Pp.
(f) The Court's holding is further reinforced by the guidance
issued by the Justice Department and other agencies authorized to
administer the ADA, which supports the conclusion that persons
with asymptomatic HIV fall within the ADA's definition of
disability. The views of agencies charged with implementing a
statute are entitled to deference. See Chevron U.S. A.
Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844. Pp. 646-647.
2. In affirming the summary judgment, the First Circuit did not
cite sufficient material in the record to determine, as a matter
of law, that respondent's HIV infection posed no direct threat to
the health and safety of others. The ADA's direct threat
provision, Ã‚Â§ 12182(b)(3), stems from School Bd. of Nassau
Cty. v. Arline, 480 U.S. 273, 287, in which this
Court reconciled competing interests in prohibiting discrimination
and preventing the spread of disease by construing the
Rehabilitation Act not to require the hiring of a person who
posed "a significant risk of communicating an infectious disease
to others," id., at 287, and n. 16. The existence of a
significant risk is determined from the standpoint of the health
care professional who refuses treatment or accommodation, and the
risk assessment is based on the medical or other objective,
scientific evidence available to him and his profession, not
simply on his good-faith belief that a significant risk existed.
See id., at 288; id., at 288, n. 18,
distinguished. For the most part, the First Circuit followed the
proper standard and conducted a thorough review of the evidence.
However, it might have mistakenly relied on the 1993 CDC
Dentistry Guidelines, which recommend certain universal
precautions to combat the risk of HIV transmission in the dental
environment, but do not actually assess the level of such risk,
and on the 1991 American Dental Association Policy on HIV, which
is the work of a professional organization, not a public health
authority, and which does not reveal the extent to which it was
based on the Association's assessment of dentists' ethical and
professional duties, rather than scientific assessments. Other
evidence in the record might support affirmance of the trial
court's ruling, and there are reasons to doubt whether petitioner
advanced evidence sufficient to raise a triable issue of fact on
the significance of the risk, but this Court's evaluation is
constrained by the fact that it has not had briefs and arguments
directed to the entire record. A remand will permit a full
exploration of the issues through the adversary process. Pp. 648-655.
107 F.3d 934, affirmed in part, vacated in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, in
which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined.
STEVENS, J., filed a concurring Opinion, in which BREYER, J.,
joined, post, p. 655. GINSBURG, J., filed a concurring opinion,
post, p. 656. REHNQUIST, C.J., filed an opinion concurring in
the judgment in part and dissenting in part, in which SCALIA and THOMAS,
JJ., joined, and in Part II of which O'CONNOR, J., joined, post, p. 657.
O'CONNOR, J., filed an opinion concurring in the judgment in part and
dissenting in part, post, p. 664.
John W. McCarthy argued the cause for petitioner. With him on the
briefs was Brent A. Singer.
Bennett H. Klein argued the cause for respondents. With him on the
brief for respondent Abbott was Wendy E. Parmet. John E. Carnes filed
a brief for respondent Maine Human Rights Commission.
Deputy Solicitor General Wallace argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief were
Solicitor General Waxman,
Acting Assistant General Lee, James A. Feldman,
Jessica Dunsay Silver, and Thomas E. Chandler.[fn*]
[fn*] Ann Elizabeth Reesman filed a brief for the Equal Employment
Advisory Council as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the City of
Los Angeles by James K. Hahn and David I. Schulman; for the AIDS Action
Council et al. by Chai R. Feldblum, Steven R. Shapiro, Matthew Coles,
and Robert A. Long Jr.; for the American Medical Association by Carter
G. Phillips, Mark E. Haddad, Jack R. Bierig, Michael L. Ile, and Leonard A.
Nelson; for the Elizabeth Glaser Pediatric AIDS Foundation by Lynn
E. Cunningham; for the Infectious Diseases Society of America et al.
by Catherine A. Hanssens, Heather C. Sawyer, Beatrice Dohrn,
Daniel Bruner, Elizabeth A. Seaton, and Laura M.
Flegel; and for Senator Harkin et al. by Arlene Mayerson.
Peter M. Sfikas filed a brief for the American Dental Association as
JUSTICE KENNEDY delivered the opinion of the Court.
We address in this case the application of the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. Ã‚Â§ 12101
et seq., to persons infected with the human
immunodeficiency virus (HIV). We granted certiorari to review,
first, whether HIV infection is a disability under the ADA when
the infection has not yet progressed to the so-called symptomatic
phase; and, second, whether the Court of Appeals, in affirming a
grant of summary judgment, cited sufficient material in the
record to determine, as a matter of law, that respondent's
infection with HIV posed no direct threat to the health and
safety of her treating dentist 522 U.S. 991 (1995).
Respondent Sidney Abbott (hereinafter respondent) has been infected with
HIV since 1986. When the incidents we recite occurred, her infection had
not manifested its most serious symptoms. On September 16, 1994, she went
to the office of petitioner Randon Bragdon in Bangor, Maine, for a dental
appointment. She disclosed her HIV infection on the
patient registration form. Petitioner completed a dental
examination, discovered a cavity, and informed respondent of his
policy against filling cavities of HIV-infected patients. He
offered to perform the work at a hospital with no added fee for
his services, though respondent would be responsible for the cost
of using the hospital's facilities. Respondent declined.
Respondent sued petitioner under state law and Ã‚Â§ 302 of the
ADA, 104 Stat. 355, 42 U.S.C. Ã‚Â§ 12182, alleging
discrimination on the basis of her disability. The state-law
claims are not before us. Section 302 of the ADA provides:
"No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who . . .
operates a place of public accommodation." Ã‚Â§ 12182(a).
The term "public accommodation" is defined to include the
"professional office of a health care provider." Ã‚Â§ 12181(7)(F).
A later subsection qualifies the mandate not to discriminate. It
"Nothing in this subchapter shall require an entity to permit an
individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of such
entity where such individual poses a direct threat to the health
or safety of others." Ã‚Â§ 12182(b)(3).
The United States and the Maine Human Rights Commission intervened
as plaintiffs. After discovery, the parties filed cross-motions
for summary judgment. The District Court ruled in favor of the
plaintiffs, holding that respondent's HIV infection satisfied the
ADA's definition of disability. 912 F. Supp. 580, 585-587 (Me. 1995).
The court held further that petitioner raised no genuine issue
of material fact as to whether respondent's HIV infection would have
posed a direct threat to the health or safety of others during the
course of a dental treatment. Id., at 587-591.
The court relied on affidavits submitted by Dr. Donald Wayne
Marianos, Director of the Division of Oral Health of the Centers
for Disease Control and Prevention (CDC). The Marianos affidavits
asserted it is safe for dentists to treat patients infected with
HIV in dental offices if the dentist follows the so-called universal
precautions described in the Recommended Infection-Control
Practices for Dentistry issued by CDC in 1993 (1993 CDC Dentistry
Guidelines). 912 F. Supp., at 589.
The Court of Appeals affirmed. It held respondent's HIV
infection was a disability under the ADA, even though her
infection had not yet progressed to the symptomatic stage.
107 F.3d 934, 939-943 (CA1 1997). The Court of Appeals also agreed
that treating the respondent in petitioner's office would not
have posed a direct threat to the health and safety of others.
Id., at 943-948. Unlike the District Court, however,
the Court of Appeals declined to rely on the Marianos affidavits.
Id., at 946, n. 7. Instead the court relied on the 1993
CDC Dentistry Guidelines, as well as the Policy on AIDS, HIV
Infection and the Practice of Dentistry, promulgated by the
American Dental Association in 1991 (1991 American Dental
Association Policy on HIV). 107 F.3d, at 945-946.
We first review the ruling that respondent's HIV infection
constituted a disability under the ADA. The statute defines
"(A) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." Ã‚Â§ 12102(2).
We hold respondent's HIV infection was a disability under
subsection (A) of the definitional section of the statute. In
light of this conclusion, we need not consider the applicability
of subsections (B) or (C).
Our consideration of subsection (A) of the definition proceeds in
three steps. First, we consider whether respondent's HIV
infection was a physical impairment. Second, we identify the
life activity upon which respondent relies (reproduction and
childbearing) and determine whether it constitutes a major life
activity under the ADA. Third, tying the two statutory phrases
together, we ask whether the impairment substantially limited the
major life activity. In construing the statute, we are informed
by interpretations of parallel definitions in previous statutes
and the views of various administrative agencies which have faced
this interpretive question.
The ADA's definition of disability is drawn almost verbatim from
the definition of "handicapped individual" included in the
Rehabilitation Act of 1973, 87 Stat. 361, as amended,
29 U.S.C. Ã‚Â§ 706(8)(B) (1988 ed.),
and the definition of "handicap" contained in the Fair Housing
Amendments Act of 1988, 102 Stat. 1619, 42 U.S.C. Ã‚Â§ 3602(h)(1) (1988 ed.).
Congress' repetition of a well-established term carries the
implication that Congress intended the term to be construed in
accordance with pre-existing regulatory interpretations. See
FDIC v. Philadelphia Gear Corp., 476 U.S. 426,
437-438 (1986); Commissioner v. Estate of Noel,
380 U.S. 678, 681-682 (1965); ICC v. Parker,
326 U.S. 60, 65 (1945). In this case, Congress did more than
suggest this construction; it adopted a specific statutory
provision in the ADA directing as follows:
"Except as otherwise provided in this chapter, nothing
in this chapter shall be construed to apply a lesser standard
than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. Ã‚Â§ 790 et seq.)
or the regulations issued by Federal agencies pursuant to such
title." 42 U.S.C. Ã‚Â§ 12201(a).
The directive requires us to construe the ADA to grant at least
as much protection as provided by the regulations implementing
the Rehabilitation Act.
The first step in the inquiry under subsection (A) requires us to
determine whether respondent's condition constituted a physical
impairment. The Department of Health, Education and Welfare
(HEW) issued the first regulations interpreting the
Rehabilitation Act in 1977. The regulations are of particular
significance because, at the time, HEW was the agency responsible
for coordinating the implementation and enforcement of Ã‚Â§ 504 of that
statute. Consolidated Rail Corporation v. Darrone,
465 U.S. 624 634, (1984) (citing Exec. Order No. 11914, 3 C.F.R. Ã‚Â§ 117
(1976-1980 Comp.)). Section 504 prohibits discrimination against
individuals with disabilities by recipients of federal financial assistance
29 U.S.C. Ã‚Â§ 794. The HEW regulations, which appear without
change in the current regulations issued by the Department of
Health and Human Services, define "physical or mental impairment"
"(A) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological; musculoskeletal; special
sense organs; respiratory, including speech organs;
cardiovascular; reproductive, digestive, genito-urinary; hemic
and lymphatic; skin; and endocrine; or
"(B) any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities." 45 C.F.R. Ã‚Â§ 84.3(j)(2)(i)
In issuing these regulations, HEW decided against including a
list of disorders constituting physical or mental impairments,
out of concern that any specific enumeration might not be
comprehensive. 42 Fed. Reg. 22685 (1977), reprinted in
45 C.F.R. pt. 84, App. A, p. 334 (1997). The commentary accompanying the
regulations, however, contains a representative list of disorders
and conditions constituting physical impairments, including "such
diseases and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes,
mental retardation, emotional illness, and . . . drug addiction
and alcoholism." Ibid.
In 1980, the President transferred responsibility for the
implementation and enforcement of Ã‚Â§ 504 to the Attorney
General. See, e.g., Exec. Order No. 12250, 3 C.F.R. Ã‚Â§ 298
(1981). The regulations issued by the Justice Department, which
remain in force to this day, adopted verbatim the HEW definition
of physical impairment quoted above. 28 C.F.R. Ã‚Â§ 41.31(b)(1)
(1997). In addition, the representative list of diseases and
conditions originally relegated to the commentary accompanying
the HEW regulations were incorporated into the text of the
HIV infection is not included in the list of specific disorders
constituting physical impairments, in part because HIV was not
identified as the cause of AIDS until 1983. See
BarreÃƒÂ©-Sinoussi et al., Isolation of a T-Lymphotropic
Retrovirus from a Patient at Risk for Acquired Immune Deficiency
Syndrome (AIDS), 220 Science 868 (1983); Gallo et al., Frequent
Detection and Isolation of Cytopathic Retroviruses (HTLV-III) from
Patients with AIDS and at Risk for AIDS, 224 Science 500 (1984);
Levy et al., Isolation of Lymphocytopathic Retroviruses from San
Francisco Patients with AIDS, 225 Science 840 (1984). HIV
infection does fall well within the general definition set forth
by the regulations, however.
The disease follows a predictable and, as of today, an
unalterable course. Once a person is infected with HIV, the
virus invades different cells in the blood and in body tissues.
Certain white blood cells, known as helper T-lymphocytes or CD4+
cells, are particularly vulnerable to HIV. The virus attaches to
the CD4 receptor site of the target cell and fuses its membrane
to the cell's membrane. HIV is a retrovirus, which means it uses
an enzyme to convert its own genetic material into a form
indistinguishable from the genetic material of the target cell.
The virus' genetic material migrates to the cell's nucleus and
becomes integrated with the cell's chromosomes. Once integrated,
the virus can use the cell's own genetic machinery to replicate
itself. Additional copies of the virus are released into the
body and infect other cells in turn. Young, The Replication
Cycle of HIV-1, in The AIDS Knowledge Base, pp. 3.1-2 to 3.1-7
(P. Cohen, M. Sande, & P. Volberding eds., 2d ed. 1994)
(hereinafter AIDS Knowledge Base); Folks & Hart, The Life Cycle
of Human Immunodeficiency Virus Type 1, in AIDS:
Etiology, Diagnosis, Treatment and Prevention 29-39 (V. DeVita
et al. eds., 4th ed. 1997) (hereinafter AIDS: Etiology); Greene,
Molecular Insights into HIV-1 Infection, in The Medical
Management of AIDS 18-24 (M. Sande & P. Volberding eds., 5th ed.
1997) (hereinafter Medical Management of AIDS). Although the
body does produce antibodies to combat HIV infection, the
antibodies are not effective in eliminating the virus. Pantaleo
et al., Immunopathogenesis of Human Immunodeficiency Virus
Infection, in AIDS: Etiology 79; Gard-ner, HIV Vaccine Development,
in AIDS Knowledge Base 3.6-5; Haynes, Immune Responses to Human
Immunodeficiency Virus Infection, in AIDS: Etiology 91.
The virus eventually kills the infected host cell. CD4+ cells
play a critical role in coordinating the body's immune response
system, and the decline in their number causes
corresponding deterioration of the body's ability to fight infections
from many sources. Tracking the infected individual's CD4+ cell
count is one of the most accurate measures of the course of the
disease. Greene, Medical Management of
AIDS 19, 24. Osmond, Classification and Staging of HIV Disease,
in AIDS Knowledge Base 1.1-8; Saag, Clinical Spectrum of Human
Immunodeficiency Virus Diseases, in AIDS: Etiology 204.
The initial stage of HIV infection is known as acute or primary
HIV infection. In a typical case, this stage lasts three months.
The virus concentrates in the blood. The assault on the immune
system is immediate. The victim suffers from a sudden and
serious decline in the number of white blood cells. There is no
latency period. Mononucleosis-like symptoms often emerge between
six days and six weeks after infection, at times accompanied by
fever, headache, enlargement of the lymph nodes
(lymphadenopathy), muscle pain (myalgia), rash, lethargy,
gastrointestinal disorders, and neurological disorders. Usually
these symptoms abate within 14 to 21 days. HIV antibodies appear
in the bloodstream within 3 weeks; circulating HIV can be
detected within 10 weeks. Carr & Cooper, Primary HIV Infection,
in Medical Management of AIDS 89-91; Cohen & Volberding, Clinical
Spectrum of HIV Disease, in AIDS Knowledge Base 4.1-7; Crowe &
McGrath, Acute HIV Infection, in AIDS Knowledge Base 4.2-1 to
4.2-4; Saag, AIDS: Etiology 204-205.
After the symptoms associated with the initial stage subside, the
disease enters what is referred to sometimes as its asymptomatic
phase. The term is a misnomer, in some respects, for clinical
features persist throughout, including lymphadenopathy, dermatological
disorders, oral lesions, and bacterial infections. Although it varies
with each individual, in most instances this stage lasts from 7 to 11
years. The virus now tends to concentrate in the lymph nodes, though
low levels of the virus continue to
appear in the blood. Cohen & Volberding, AIDS Knowledge Base 4.1-4, 4.1-8;
Saag, AIDS: Etiology 205-206; Staprans & Feinberg, Natural History and
Immunopathogenesis of HIV-1 Disease, in Medical Management of AIDS 29, 38.
It was once
thought the virus became inactive during this period, but it is
now known that the relative lack of symptoms is attributable to
the virus' migration from the circulatory system into the lymph nodes.
Cohen & Volberding, AIDS Knowledge Base 4.1-4. The migration
reduces the viral presence in other parts of the body, with a
corresponding diminution in physical manifestations of the
disease. The virus, however, thrives in the lymph nodes, which,
as a vital point of the body's immune response system, represents
an ideal environment for the infection of other CD4+ cells.
Staprans & Feinberg, Medical Management of AIDS 33-34. Studies
have shown that viral production continues at a high rate. Cohen
& Volberding, AIDS Knowledge Base 4.1-4; Staprans & Feinberg,
Medical Management of AIDS 38. CD4+ cells continue to decline an
average of 5% to 10% (40 to 80 cells/mm3) per year throughout
this phase. Saag, AIDS: Etiology 207.
A person is regarded as having AIDS when his or her CD4+ count
drops below 200 cells/mm3 of blood or when CD4+ cells comprise
less than 14% of his or her total lymphocytes. U.S. Dept. of
Health and Human Services, Public Health Service, CDC, 1993
Revised Classification System for HIV Infection and Expanded
Surveillance Case Definition for AIDS Among Adolescents and Adults,
41 Morbidity and Mortality Weekly Rep., No. RR-17 (Dec. 18, 1992);
Osmond, AIDS Knowledge Base 1.1-2; Saag, AIDS: Etiology 207; Ward,
Petersen, & Jaffe, Current Trends in the Epidemiology of HIV/AIDS,
in Medical Management of AIDS 3. During this stage, the clinical
conditions most often associated with HIV, such as pneumocystis
carninii pneumonia, Kaposi's sarcoma, and non-Hodgkins
lymphoma, tend to appear. In addition, the general systemic disorders
present during all stages of the disease, such as fever, weight loss,
fatigue, lesions, nausea, and diarrhea, tend to worsen. In most cases,
once the patient's CD4+ count drops below 10
cells/mm3, death soon follows. Cohen & Volberding, AIDS
Knowledge Base 4.1-9; Saag, AIDS: Etiology 207-209.
In light of the immediacy with which the virus begins to damage
the infected person's white blood cells and the severity of the
disease, we hold it is an impairment from the moment of
infection. As noted earlier, infection with HIV causes immediate
abnormalities in a person's blood, and the infected person's
white cell count continues to drop throughout the course of the
disease, even when the attack is concentrated in the lymph nodes.
In light of these facts, HIV infection must be regarded as a
physiological disorder with a constant and detrimental effect on
the infected person's hemic and lymphatic systems from the moment
of infection. HIV infection satisfies the statutory and
regulatory definition of a physical impairment during every stage
of the disease.
The statute is not operative, and the definition not satisfied,
unless the impairment affects a major life activity. Respondent's
claim throughout this case has been that the HIV infection placed
a substantial limitation on her ability to reproduce and to bear
children. App. 14; 912 F. Supp., at 586; 107 F.3d, at 939. Given
the pervasive, and invariably fatal, course of the disease, its
effect on major life activities of many sorts might have been
relevant to our inquiry. Respondent and a number of amici make
arguments about HIV's profound impact on almost every phase of the
infected person's life. See Brief for Respondent Abbott
24-27; Brief for American Medical Association as Amicus Curiae
20; Brief for Infectious Diseases Society
of America et al. as Amici Curiae 7-11. In light of these
submissions, it may seem legalistic to circumscribe our discussion
to the activity of reproduction. We have little doubt that had
different parties brought the suit they would have maintained that
an HIV infection imposes substantial limitations on other major
From the outset, however, the case has been treated as one in
which reproduction was the major life activity limited by the
impairment. It is our practice to decide cases on the grounds
raised and considered in the Court of Appeals and included in the
question on which we granted certiorari. See, e.g.,
Blessing v. Freestone, 520 U.S. 329, 340, n. 3
(1997) (citing this Court's Rule 14.1(a)); Capitol Square
Review and Advisory Bd. v. Pinette, 515 U.S. 753,
760 (1995). We ask, then, whether reproduction is a major life
We have little difficulty concluding that it is. As the Court of
Appeals held, "[t]he plain meaning of the word `major' denotes
comparative importance" and "suggest[s] that the touchstone for
determining an activity's inclusion under the statutory rubric is
its significance." 107 F.3d, at 939, 940. Reproduction falls
well within the phrase "major life activity." Reproduction and
the sexual dynamics surrounding it are central to the life
While petitioner concedes the importance of reproduction, he
claims that Congress intended the ADA only to cover those aspects
of a person's life which have a public, economic, or daily
character. Brief for Petitioner 14, 28, 30, 31; see also
id., at 36-37 (citing Krauel v. Iowa
Methodist Medical Center, 95 F.3d 674, 677 (CA8 1996)). The
argument founders on the statutory language. Nothing in the
definition suggests that activities without a public, economic,
or daily dimension may somehow be regarded as so unimportant or
insignificant as to fall outside the meaning of the word "major."
The breadth of the term confounds the attempt to limit its
construction in this manner.
As we have noted, the ADA must be construed to be consistent with
regulations issued to implement the Rehabilitation Act. See
42 U.S.C. Ã‚Â§ 12201(a). Rather than enunciating a general
principle for determining what is and is not a major life
activity, the Rehabilitation Act regulations instead provide a
representative list, defining the term to include "functions such as
caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 45 C.F.R. Ã‚Â§ 84.3(j)(2)(ii) (1997);
28 C.F.R. Ã‚Â§ 41.31(b)(2) (1997). As the use of the term "such as" confirms,
the list is illustrative, not exhaustive.
These regulations are contrary to petitioner's attempt to limit
the meaning of the term "major" to public activities. The
inclusion of activities such as caring for one's self and
performing manual tasks belies the suggestion that a task must
have a public or economic character in order to be a major life
activity for purposes of the ADA. On the contrary, the
Rehabilitation Act regulations support the inclusion of
reproduction as a major life activity, since reproduction could
not be regarded as any less important than working and learning.
Petitioner advances no credible basis for confining major life
activities to those with a public, economic, or daily aspect. In
the absence of any reason to reach a contrary conclusion, we
agree with the Court of Appeals' determination that reproduction
is a major life activity for the purposes of the ADA.
The final element of the disability definition in subsection (A)
is whether respondent's physical impairment was a substantial
limit on the major life activity she asserts. The Rehabilitation
Act regulations provide no additional guidance. 45 C.F.R. pt. 84,
App. A, p. 334 (1997).
Our evaluation of the medical evidence leads us to
conclude that respondent's infection substantially limited her
ability to reproduce in two independent ways. First, a woman
infected with HIV who tries to conceive a child imposes on the
man a significant risk of becoming infected. The cumulative
results of 13 studies collected in a 1994 textbook on AIDS
indicates that 20% of male partners of women with HIV became
HIV-positive themselves, with a majority of the studies finding a
statistically significant risk of infection. Osmond & Padian,
Sexual Transmission of HIV, in AIDS
Knowledge Base 1.9-8, and tbl. 2; see also Haverkos & Battjes,
Female-to-Male Transmission of HIV, 268 JAMA 1855, 1856, tbl.
(1992) (cumulative results of 16 studies indicated 25% risk of
female-to-male transmission). (Studies report a similar, if not
more severe, risk of male-to-female transmission. See, e.g.,
Osmond & Padian, AIDS Knowledge Base 1.9-3, tbl. 1, 1.9-6 to
Second, an infected woman risks infecting her child during
gestation and childbirth, i.e., perinatal transmission.
Petitioner concedes that women infected with HIV face about a 25%
risk of transmitting the virus to their children.
107 F.3d, at 942; 912 F. Supp., at 587, n. 6. Published reports available in
1994 confirm the accuracy of this statistic. Report of a
Consensus Workshop, Maternal Factors Involved in Mother-to-Child
Transmission of HIV-1, 5 J. Acquired Immune Deficiency Syndromes
1019, 1020 (1992) (collecting 13 studies placing risk between 14%
and 40%, with most studies falling within the 25% to 30% range);
Connor et al., Reduction of Maternal-Infant Transmission of Human
Immunodeficiency Virus Type 1 with Zidovudine Treatment, 331 New
England J. Med. 1173, 1176 (1994) (placing risk at 25.5%); see also
Staprans & Feinberg, Medical Management of AIDS 32 (studies
report 13% to 45% risk of infection, with average of
Petitioner points to evidence in the record suggesting
that antiretroviral therapy can lower the risk of perinatal
transmission to about 8%. App. 53; see also Connor,
supra, at 1176 (8.3%); Sperling et al., Maternal Viral
Load, Zidovudine Treatment, and the Risk of Transmission of Human
Immunodeficiency Virus Type 1 from Mother to Infant, 335 New England
J. Med. 1621, 1622 (1996) (7.6%). The United States
questions the relevance of the 8% figure, pointing to regulatory
language requiring the substantiality of a limitation to be
assessed without regard to available mitigating measures. Brief
for United States as Amicus Curiae 18, n. 10 (citing
28 C.F.R. pt. 36, App. B, p. 611 (1997); 29 C.F.R. pt.
1630, App., p. 351 (1997)). We need not resolve this dispute in
order to decide this case, however. It cannot be said as a
matter of law that an 8% risk of transmitting a dread and fatal
disease to one's child does not represent a substantial
limitation on reproduction.
The Act addresses substantial limitations on major life
activities, not utter inabilities. Conception and childbirth are
not impossible for an HIV victim but, without doubt, are
dangerous to the public health. This meets the definition of a
substantial limitation. The decision to reproduce carries
economic and legal consequences as well. There are added costs
for antiretroviral therapy, supplemental insurance, and long-term
health care for the child who must be examined and, tragic to
think, treated for the infection. The laws of some States,
moreover, forbid persons infected with HIV to have sex with
others, regardless of consent. Iowa Code Ã‚Â§Ã‚Â§ 139.1,
139.31 (1997); Md. Health Code Ann. Ã‚Â§ 18-601.1(a) (1994);
Mont. Code Ann. Ã‚Â§Ã‚Â§ 50-18-101, 50-18-112 (1997); Utah
Code Ann. Ã‚Â§ 26-6-3.5(3) (Supp. 1997); id.,
Ã‚Â§ 26-6-5 (1995); Wash. Rev. Code Ã‚Â§ 9A.36.011(1)(b) (Supp. 1998);
see also N.D. Cent. Code Ã‚Â§ 12.1-20-17 (1997).
In the end, the disability definition does not turn on personal
choice. When significant limitations result from
the impairment, the definition is met even if the difficulties are
not insurmountable. For the statistical and other reasons we have
cited, of course, the limitations on reproduction may be
insurmountable here. Testimony from the respondent that her HIV
infection controlled her decision not to have a child is
unchallenged. App. 14; 912 F. Supp., at 587; 107 F.3d, at 942.
In the context of reviewing summary judgment, we must take it to
be true. Fed. Rule Civ. Proc. 56(e). We agree with the District
Court and the Court of Appeals that no triable issue of fact
impedes a ruling on the question of statutory coverage.
Respondent's HIV infection is a physical impairment which
substantially limits a major life activity, as the ADA defines
it. In view of our holding, we
need not address the second question presented, i.e.,
whether HIV infection is a per se disability under the ADA.
Our holding is confirmed by a consistent course of agency
interpretation before and after enactment of the ADA. Every
agency to consider the issue under the Rehabilitation Act found
statutory coverage for persons with asymptomatic HIV.
Responsibility for administering the Rehabilitation Act was not
delegated to a single agency, but we need not pause to inquire
whether this causes us to withhold deference to agency
interpretations under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
It is enough to observe that the well-reasoned views of the
agencies implementing a statute "constitute a body of experience
and informed judgment to which courts and litigants may properly
resort for guidance." Skidmore v. Swift & Co.,
323 U.S. 134, 139-140 (1944).
One comprehensive and significant administrative precedent
is a 1988 opinion issued by the Office of Legal Counsel of the
Department of Justice (OLC) concluding that the
Rehabilitation Act "protects symptomatic and asymptomatic
HIV-infected individuals against discrimination in any covered
program." Application of Section 504 of the Rehabilitation Act to
HIV-Infected Individuals, 12 Op. Off. Legal Counsel 264, 264-265
(Sept. 27, 1988) (preliminary print) (footnote omitted). Relying
on a letter from Surgeon General C. Everett Koop stating that,
"from a purely scientific perspective, persons with HIV are
clearly impaired" even during the asymptomatic phase, OLC
determined asymptomatic HIV was a physical impairment under the
Rehabilitation Act because it constituted a "physiological
disorder or condition affecting the hemic and lymphatic systems."
Id., at 271 (internal quotation marks omitted). OLC
determined further that asymptomatic HIV imposed a substantial
limit on the major life activity of reproduction. The opinion
"Based on the medical knowledge available to us, we believe that
it is reasonable to conclude that the life activity of
procreation . . . is substantially limited for an asymptomatic
HIV-infected individual. In light of the significant risk that
the AIDS virus may be transmitted to a baby during pregnancy,
HIV-infected individuals cannot, whether they are male or female,
engage in the act of procreation with the normal expectation of
bringing forth a healthy child." Id., at 273.
In addition, OLC indicated that "[t]he life activity of engaging
in sexual relations is threatened and probably substantially
limited by the contagiousness of the virus." Id., at 274.
Either consideration was sufficient to render asymptomatic HIV
infection a handicap for purposes of the Rehabilitation Act. In the
course of its opinion, OLC considered, and rejected, the contention
that the limitation could be discounted as a voluntary response to the
infection. The limitation, it reasoned, was the infection's manifest
physical effect. Id., at 274, and n. 13. Without exception,
the other agencies to address the problem before enactment of the ADA
reached the same result. Federal Contract Compliance Manual App. 6D,
8 FEP Manual 405:352 (Dec. 23, 1988); In re Ritter,
No. 03890089, 1989 WL 609697, *10 (EEOC, Dec. 8, 1989); see also
Comptroller General's Task Force on AIDS in the Workplace, Coping with
AIDS in the GAO Workplace: Task Force Report 29 (Dec. 1987); Report of
the Presidential Commission on the Human Immunodeficiency Virus
Epidemic 113-114, 122-123 (June 1988). Agencies have adhered to
this conclusion since the enactment of the ADA as well. See
5 C.F.R. Ã‚Â§ 1636.103 (1997); 7 C.F.R. Ã‚Â§ 15e.103 (1998);
22 C.F.R. Ã‚Â§ 1701.103 (1997); 24 C.F.R. Ã‚Â§ 9.103 (1997);
34 C.F.R. Ã‚Â§ 1200.103 (1997); 45 C.F.R. Ã‚Â§ 2301.103, 2490.103 (1997);
In re Westchester County Medical Center, [1991-1994
Transfer Binder] CCH Employment Practices Guide Ã‚Â¶ 5340, pp.
6110-6112 (Apr. 20, 1992), aff'd, id., Ã‚Â¶ 5362, pp.
6249-6250 (Dept. of Health & Human Servs. Departmental Appeals
Bd., Sept. 25, 1992);
In re Rosebud Sioux Tribe, No. 93-504-1, 1994 WL 603015
(Dept. of Health & Human Servs. Departmental Appeals Bd., July
14, 1994); In re Martin, No. 01954089, 1997 WL 151524,
*4 (EEOC, Mar. 27, 1997).
Every court which addressed the issue before the ADA was enacted
in July 1990, moreover, concluded that asymptomatic HIV infection
satisfied the Rehabilitation Act's definition of a handicap. See
Doe v. Garrett, 903 F.2d 1455, 1457 (CA11
1990), cert. denied, 499 U.S. 904 (1991); Ray v.
School Dist. of DeSoto County, 666 F. Supp. 1524, 1536
(MD Fla. 1987); Thomas v. Atascadero Unified School
Dist., 662 F. Supp. 376, 381 (CD Cal. 1987); District 27
Community School Bd. v. Board of Ed. of New York,
130 Misc.2d 398, 413-415, 502 N.Y.S.2d 325, 335-337 (Sup.Ct.,
Queens Cty. 1986); cf. Baxter v. Belleville,
720 F. Supp. 720, 729 (SD Ill. 1989) (Fair Housing Amendments
Act); Cain v. Hyatt, 734 F. Supp. 671, 679 (ED
Pa. 1990) (Pennsylvania Human Relations Act). (For cases finding
infection with HIV to be a handicap without distinguishing
between symptomatic and asymptomatic HIV, see Martinez
ex rel. Martinez v. School Bd. of Hillsborough
Cty., 861 F.2d 1502, 1506 (CA11 1988); Chalk v.
United States Dist. Ct., 840 F.2d 701, 706 (CA9 1988);
Doe v. Dolton Elementary School Dist. No. 148,
694 F. Supp. 440, 444-445 (ND Ill. 1988); Robertson v.
Granite City Community Unit School Dist. No. 9,
684 F. Supp. 1002, 1006-1007 (SD Ill. 1988); Local 1812, AFGE
v. United States Dept. of State, 662 F. Supp. 50, 54 (DC
1987); cf. Association of Relatives and Friends of AIDS
Patients v. Regulations and Permits Admin.,
740 F. Supp. 95, 103 (PR 1990) (Fair Housing Amendments Act).) We are
aware of no instance prior to the enactment of the ADA in which a
court or agency ruled that HIV infection was not a handicap under
the Rehabilitation Act.
Had Congress done nothing more than copy the Rehabilitation Act
definition into the ADA, its action would indicate
the new statute should be construed in light of this unwavering
line of administrative and judicial interpretation. All
indications are that Congress was well aware of the position
taken by OLC when enacting the ADA and intended to give that
position its active endorsement. H.R. Rep. No. 101-485, pt. 2,
p. 52 (1990) (endorsing the analysis and conclusion of the OLC
opinion); id., pt. 3, at 28, n. 18 (same); S.Rep. No.
101-116, pp. 21, 22 (1989) (same). As noted earlier, Congress also
incorporated the same definition into the Fair Housing Amendments
Act of 1988. See 42 U.S.C. Ã‚Â§ 3602(h)(1). We find it significant
that the implementing regulations issued by the Department of Housing
and Urban Development (HUD) construed the definition to include infection
with HIV. 54 Fed. Reg. 3232, 3245 (1989) (codified at 24 C.F.R. Ã‚Â§ 100.201
(1997)); see also In re Williams, 2A
P-H Fair Housing-Fair Lending Ã‚Â¶ 25,007, pp. 25,111-25,113 (HUD
Off. Admin. Law Judges, Mar. 22, 1991) (adhering to this
interpretation); In re Elroy R. and Dorothy Burns Trust, 2A P-H
Fair Housing-Fair Lending Ã‚Â¶ 25,073, p. 25,678 (HUD Off. Admin.
Law Judges, June 17, 1994) (same). Again the legislative record
indicates that Congress intended to ratify HUD's interpretation
when it reiterated the same definition in the ADA. H.R. Rep. No.
101-485, pt. 2, at 50; id., pt. 3, at 27; id.,
pt. 4, at 36; S.Rep. No. 101-116, at 21.
We find the uniformity of the administrative and judicial
precedent construing the definition significant. When
administrative and judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the
same language in a new statute indicates, as a general matter,
the intent to incorporate its administrative and judicial
interpretations as well. See, e.g., Lorillard
v. Pons, 434 U.S. 575, 580-581 (1978). The uniform body
of administrative and judicial precedent confirms the conclusion
we reach today as the most faithful way to effect the
Our conclusion is further reinforced by the administrative
guidance issued by the Justice Department to implement the public
accommodation provisions of Title III of the ADA. As the agency
directed by Congress to issue implementing regulations, see
42 U.S.C. Ã‚Â§ 12186(b), to render technical assistance explaining
the responsibilities of covered individuals and institutions,
Ã‚Â§ 12206(c), and to enforce Title III in court, Ã‚Â§
12188(b), the Department's views are entitled to deference. See
Chevron, 467 U.S., at 844.
The Justice Department's interpretation of the definition of
disability is consistent with our analysis. The regulations
acknowledge that Congress intended the
ADA's definition of disability to be given the same construction as
the definition of handicap in the Rehabilitation Act.
28 C.F.R. Ã‚Â§ 36.103(a) (1997); id., pt. 36, App. B, pp. 608, 609.
The regulatory definition developed by HEW to implement the
Rehabilitation Act is incorporated verbatim in the ADA
regulations. Ã‚Â§ 36.104. The Justice Department went further,
however. It added "HIV infection (symptomatic and asymptomatic)"
to the list of disorders constituting a physical impairment.
Ã‚Â§ 36.104(1)(iii). The technical assistance the Department
has issued pursuant to 42 U.S.C. Ã‚Â§ 12206 similarly concludes
that persons with asymptomatic HIV infection fall within the
ADA's definition of disability. See, e.g., U.S. Dept.
of Justice, Civil Rights Division, The Americans with
Disabilities Act: Title III Technical Assistance Manual 9 (Nov.
1993); Response to Congressman Sonny Callahan, 5 Nat. Disability
L. Rep. (LRP) Ã‚Â¶ 360, p. 1167 (Feb. 9, 1994); Response to A.
Laurence Field, 5 Nat. Disability L. Rep. (LRP) Ã‚Â¶ 21, p. 80
(Sept. 10, 1993). Any other conclusion, the Department reasoned,
would contradict Congress' affirmative ratification of the
administrative interpretations given previous versions of the
same definition. 28 C.F.R. pt. 36, App. B, pp. 609, 610 (1997)
(citing the OLC opinion and HUD regulations); 56 Fed. Reg. 7455,
7456 (1991) (same) (notice of proposed rulemaking).
We also draw guidance from the views of the agencies authorized
to administer other sections of the ADA. See 42 U.S.C. Ã‚Â§ 12116
(authorizing EEOC to issue regulations implementing Title
I); Ã‚Â§ 12134(a) (authorizing the Attorney General to issue
regulations implementing the public services provisions of Title
II, subtitle A); Ã‚Â§Ã‚Â§ 12149, 12164, 12186 (authorizing the
Secretary of Transportation to issue regulations implementing the
transportation-related provisions of Titles II and III); Ã‚Â§
12206(c) (authorizing the same agencies to offer technical assistance
for the provisions they administer). These agencies, too, concluded
that HIV infection is a physical impairment under the ADA.
28 C.F.R. Ã‚Â§ 35.104(1)(iii) (1997); 49 C.F.R. Ã‚Â§ 37.3, 38.3 (1997);
56 Fed. Reg. 13858 (1991); U.S. Dept. of Justice, Civil Rights
Division, The Americans with Disabilities Act: Title II Technical
Assistance Manual 4 (Nov. 1993); EEOC, A Technical Assistance
Manual on the Employment Provisions (Title I) of the Americans with
Disabilities Act II-3 (Jan. 1992) (hereinafter EEOC Technical Assistance
Manual); EEOC Interpretive Manual Ã‚Â§ 902.2(d), pp. 902-13 to
902-14 (reissued Mar. 14, 1995) (hereinafter EEOC Interpretive Manual),
reprinted in 2 BNA EEOC Compliance Manual 902:0013 (1998). Most
categorical of all is EEOC's conclusion that "an individual who
has HIV infection (including asymptomatic HIV infection) is an
individual with a disability." EEOC Interpretive Manual
Ã‚Â§ 902.4(c)(1), p. 902-21; accord, id., Ã‚Â§ 902.2(d),
p. 902-14, n. 18. In the EEOC's view, "impairments . . . such as
HIV infection, are inherently substantially limiting." 29 C.F.R. pt.
1630, App., p. 350 (1997); EEOC Technical Assistance Manual II-4;
EEOC Interpretive Manual Ã‚Â§ 902.4(c)(1), p. 902-21.
The regulatory authorities we cite are consistent with our
holding that HIV infection, even in the so-called asymptomatic
phase, is an impairment which substantially limits the major life
activity of reproduction.
The petition for certiorari presented three other questions for
review. The questions stated:
"3. When deciding under title III of the ADA whether a private
health care provider must perform invasive procedures on an
infectious patient in his office, should courts defer to the
health care provider's professional judgment, as long as it is
reasonable in light of then-current medical knowledge?
"4. What is the proper standard of judicial review
under title III of the ADA of a private health care provider's
judgment that the performance of certain invasive procedures in
his office would pose a direct threat to the health or safety
"5. Did petitioner, Randon Bragdon, D.M.D., raise a genuine issue
of fact for trial as to whether he was warranted in his judgment
that the performance of certain invasive procedures on a patient
in his office would have posed a direct threat to the health or
safety of others?" Pet. for Cert. i.
Of these, we granted certiorari only on question three. The
question is phrased in an awkward way, for it conflates two
separate inquiries. In asking whether it is appropriate to defer
to petitioner's judgment, it assumes that petitioner's assessment
of the objective facts was reasonable. The central premise of
the question and the assumption on which it is based merit
Again, we begin with the statute. Notwithstanding the protection
given respondent by the ADA's definition of disability,
petitioner could have refused to treat her if her infectious
condition "pose[d] a direct threat to the health or safety of
others." 42 U.S.C. Ã‚Â§ 12182(b)(3). The ADA defines a direct
threat to be "a significant risk to the health or safety of
others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids
or services." Ibid. Parallel provisions appear in the
employment provisions of Title I. Ã‚Â§Ã‚Â§ 12111(3),
The ADA's direct threat provision stems from the recognition in
School Bd. of Nassau Cty. v. Arline, 480 U.S. 273,
287 (1987), of the importance of prohibiting discrimination
against individuals with disabilities while protecting others
from significant health and safety risks, resulting, for
instance, from a contagious disease. In Arline, the
Court reconciled these objectives by construing the Rehabilitation
Act not to require the hiring of a person who posed "a
significant risk of communicating an infectious disease
to others." Id., at 287, n. 16. Congress amended the
Rehabilitation Act and the Fair Housing Act to incorporate the
language. See 29 U.S.C. Ã‚Â§ 706(8)(D) (excluding individuals
who "would constitute a direct threat to the health or safety of
other individuals"); 42 U.S.C. Ã‚Â§ 3604(f)(9) (same). It later
relied on the same language in enacting the ADA. See 28 C.F.R. pt.
36, App. B, p. 626 (1997) (ADA's direct threat provision codifies
Arline). Because few, if any, activities in life are
risk free, Arline and the ADA do not ask whether a risk
exists, but whether it is significant. Arline,
supra, at 287, and n. 16; 42 U.S.C. Ã‚Â§ 12182(b)(3).
The existence, or nonexistence, of a significant risk must be
determined from the standpoint of the person who refuses the
treatment or accommodation, and the risk assessment must be based
on medical or other objective evidence. Arline, supra,
at 288; 28 C.F.R. Ã‚Â§ 36.208(c) (1997); id., pt. 36, App.
B, p. 626. As a health care professional, petitioner had the
duty to assess the risk of infection based on the objective,
scientific information available to him and others in his
profession. His belief that a significant risk existed, even if
maintained in good faith, would not relieve him from liability.
To use the words of the question presented, petitioner receives
no special deference simply because he is a health care
professional. It is true that Arline reserved "the
question whether courts should also defer to the reasonable medical
judgments of private physicians on which an employer has
relied." 480 U.S., at 288, n. 18. At most, this statement
reserved the possibility that employers could consult with
individual physicians as objective third-party experts. It did
not suggest that an individual physician's state of mind could
excuse discrimination without regard to the objective
reasonableness of his actions.
Our conclusion that courts should assess the objective
reasonableness of the views of health care professionals
without deferring to their individual judgments does not answer
the implicit assumption in the question presented, whether
petitioner's actions were reasonable in light of the available
medical evidence. In assessing the reasonableness of
petitioner's actions, the views of public health authorities,
such as the U.S. Public Health Service, CDC, and the National
Institutes of Health, are of special weight and authority.
Arline, supra, at 288; 28 C.F.R. pt. 36, App. B, p. 626
(1997). The views of these organizations are not conclusive,
however. A health care professional who disagrees with the
prevailing medical consensus may refute it by citing a credible
scientific basis for deviating from the accepted norm. See W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law
of Torts Ã‚Â§ 32, p. 187 (5th ed. 1984).
We have reviewed so much of the record as necessary to illustrate
the application of the rule to the facts of this case. For the
most part, the Court of Appeals followed the proper standard in
evaluating petitioner's position and conducted a thorough
review of the evidence. Its rejection of the District Court's
reliance on the Marianos affidavits was a correct application of
the principle that petitioner's actions must be evaluated in
light of the available, objective evidence. The record did not
show that CDC had published the conclusion set out in the
affidavits at the time petitioner refused to treat respondent.
107 F.3d, at 946, n. 7.
A further illustration of a correct application of the objective
standard is the Court of Appeals' refusal to give weight
to petitioner's offer to treat respondent in a hospital. Id., at
943, n. 4. Petitioner testified that he believed hospitals had
safety measures, such as air filtration, ultraviolet lights, and
respirators, which would reduce the risk of HIV transmission. App.
151. Petitioner made no showing, however, that any area hospital
had these safeguards or even that he had hospital privileges.
Id., at 31. His expert also admitted the lack of any
scientific basis for the conclusion that these measures would
lower the risk of transmission. Id., at 209. Petitioner
failed to present any objective, medical evidence showing that
treating respondent in a hospital would be safer or more efficient
in preventing HIV transmission than treatment in a well-equipped
We are concerned, however, that the Court of Appeals might have
placed mistaken reliance upon two other sources. In ruling no
triable issue of fact existed on this point, the Court of Appeals
relied on the 1993 CDC Dentistry Guidelines and the 1991 American
Dental Association Policy on HIV. 107 F.3d, at 945-946. This
evidence is not definitive. As noted earlier, the CDC Guidelines
recommended certain universal precautions which, in CDC's view,
"should reduce the risk of disease transmission in the dental
environment." U.S. Dept. of Health and Human Services, Public
Health Service, CDC, Recommended Infection-Control Practices for
Dentistry, 41 Morbidity and Mortality Weekly Rep. No. RR-8, p. 1
(May 28, 1993). The Court of Appeals determined that, "[w]hile
the guidelines do not state explicitly that no further
risk-reduction measures are desirable or that routine dental care
for HIV-positive individuals is safe, those two conclusions seem
to be implicit in the guidelines' detailed delineation of
procedures for office treatment of HIV-positive patients."
107 F.3d, at 946. In our view, the Guidelines do not necessarily
contain implicit assumptions conclusive of the point to be decided.
The Guidelines set out CDC's recommendation that the universal
precautions are the best way
to combat the risk of HIV transmission. They do not assess the
level of risk.
Nor can we be certain, on this record, whether the 1991
American Dental Association Policy on HIV carries the weight
the Court of Appeals attributed to it. The Policy does provide
some evidence of the medical community's
objective assessment of the risks posed by treating people infected
with HIV in dental offices. It indicates:
"Current scientific and epidemiologic evidence indicates that
there is little risk of transmission of infectious diseases
through dental treatment if recommended infection control
procedures are routinely followed. Patients with HIV infection
may be safely treated in private dental offices when appropriate
infection control procedures are employed. Such infection
control procedures provide protection both for patients and
dental personnel." App. 225.
We note, however, that the Association is a professional
organization, which, although a respected source of information
on the dental profession, is not a public health authority. It
is not clear the extent to which the Policy was based on the
Association's assessment of dentists' ethical and professional
duties in addition to its scientific assessment of the risk to
which the ADA refers. Efforts to clarify dentists' ethical
obligations and to encourage dentists to treat patients with HIV
infection with compassion may be commendable, but the question
under the statute is one of statistical likelihood, not
professional responsibility. Without more information on the
manner in which the American Dental Association formulated this
Policy, we are unable to determine the Policy's value in
evaluating whether petitioner's assessment of the risks was
reasonable as a matter of law.
The court considered materials submitted by both parties on the
cross-motions for summary judgment. The petitioner was required
to establish that there existed a genuine
issue of material fact. Evidence which was merely colorable or
not significantly probative would not have been sufficient.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986).
We acknowledge the presence of other evidence in the
record before the Court of Appeals which, subject to further
arguments and examination, might support affirmance of the trial
court's ruling. For instance, the record contains substantial
testimony from numerous health experts indicating that it is safe
to treat patients infected with HIV in dental offices. App. 66-68,
88-90, 264-266, 268. We are unable to determine the import of this
evidence, however. The record does not disclose whether the
expert testimony submitted by respondent turned on evidence
available in September 1994. See id., at 69-70 (expert
testimony relied in part on materials published after September
There are reasons to doubt whether petitioner advanced evidence
sufficient to raise a triable issue of fact on the significance
of the risk. Petitioner relied on two principal points: First,
he asserted that the use of high-speed drills and surface cooling
with water created a risk of airborne HIV transmission. The
study on which petitioner relied was inconclusive, however,
determining only that "[f]urther work is required to determine
whether such a risk exists." Johnson & Robinson, Human
Immunodeficiency Virus-1 (HIV-1) in the Vapors of Surgical Power
Instruments, 33 J. of Medical Virology 47 (1991).
Petitioner's expert witness conceded, moreover, that no evidence
suggested the spray could transmit HIV. His opinion on airborne
risk was based on the absence of contrary evidence, not on
positive data. App. 166. Scientific evidence and expert
testimony must have a traceable, analytical basis in objective
fact before it may be considered on summary judgment. See
General Electric Co. v. Joiner, 522 U.S. 136,
144-145, 146 (1997).
Second, petitioner argues that, as of September 1994,
CDC had identified seven dental workers with possible
occupational transmission of HIV. See U.S. Dept. of Health
and Human Services, Public Health Service, CDC, HIV/AIDS
Surveillance Report, vol. 6, no. 1, p. 15, tbl. 11
(Mid-year ed. June 1994). These dental workers were exposed to HIV
in the course of their employment, but CDC could not determine
whether HIV infection had resulted from this exposure. Id.,
at 15, n. 3. It is now known that CDC could not ascertain how the seven
dental workers contracted the disease because they did not present
themselves for HIV testing at an appropriate time after this occupational
exposure. Gooch et al., Percutaneous Exposures to
HIV-Infected Blood Among Dental Workers Enrolled in the CDC
Needlestick Study, 126 J. American Dental Assn. 1237, 1239 (1995).
It is not clear on this record, however, whether this information
was available to petitioner in September 1994. If not, the seven
cases might have provided some, albeit not necessarily sufficient,
support for petitioner's position. Standing alone, we doubt it
would meet the objective, scientific basis for finding a significant
risk to the petitioner.
Our evaluation of the evidence is constrained by the fact that on
these and other points we have not had briefs and arguments
directed to the entire record. In accepting the case for review,
we declined to grant certiorari on question five, which asked
whether petitioner raised a genuine issue of fact for trial.
Pet. for Cert. i. As a result, the briefs and arguments
presented to us did not concentrate on the question of
sufficiency in light all of the submissions in the summary
judgment proceeding. "When attention has been focused on other
issues, or when the court from which a case comes has expressed
no views on a controlling question, it may be appropriate to
remand the case rather than deal with the merits of that question
in this Court." Dandridge v. Williams,
397 U.S. 471, 476, n. 6 (1970). This consideration carries particular
force where, as here, full briefing directed at the issue would
help place a complex factual record in proper perspective.
Resolution of the issue will be of importance
to health care workers not just for the result but also for
the precision and comprehensiveness of the reasons given for
We conclude the proper course is to give the Court of Appeals the
opportunity to determine whether our analysis of some of the
studies cited by the parties would change its conclusion that
petitioner presented neither objective evidence nor a triable
issue of fact on the question of risk. In remanding the case, we
do not foreclose the possibility that the Court of Appeals may
reach the same conclusion it did earlier. A remand will permit a
full exploration of the issue through the adversary process.
The determination of the Court of Appeals that respondent's HIV
infection was a disability under the ADA is affirmed. The
judgment is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, concurring.
The Court's opinion demonstrates that respondent's HIV infection
easily falls within the statute's definition of "disability."
Moreover, the Court's discussion in Part III of the relevant
evidence has persuaded me that the judgment of the Court of
Appeals should be affirmed. I do not believe petitioner has
sustained his burden of adducing evidence sufficient to raise a
triable issue of fact on the significance of the risk posed by
treating respondent in his office. The Court of Appeals reached
that conclusion after a careful and extensive study of the
record; its analysis on this question was perfectly consistent
with the legal reasoning in JUSTICE KENNEDY'S opinion
for the Court; and the latter opinion itself explains that
petitioner relied on data that were inconclusive and speculative
at best, see ante, at 653-654. Cf. General Electric
Co. v. Joiner, 522 U.S. 136 (1997).
There are not, however, five Justices who agree that the judgment
should be affirmed. Nor does it appear that there are five Justices
who favor a remand for further proceedings consistent with the views
expressed in either JUSTICE KENNEDY'S opinion for the Court or the
opinion of THE CHIEF JUSTICE. Because I am in agreement with the
legal analysis in JUSTICE KENNEDY'S opinion, in order to provide a
judgment supported by a majority, I join that opinion even though
I would prefer an outright affirmance. Cf. Screws v.
United States, 325 U.S. 91, 134 (1945) (Rutledge, J.,
concurring in result).
JUSTICE GINSBURG, concurring.
Human Immunodeficiency Virus (HIV) infection, as the description set out
in the Court's opinion documents, ante, at 635-637, has been regarded
as a disease limiting life itself. See Brief for American Medical
Association as Amicus Curiae 20. The disease inevitably pervades
life's choices: education, employment, family and financial
undertakings. It affects the need for and, as this case shows,
the ability to obtain health care because of the reaction of
others to the impairment. No rational legislator, it seems to me
apparent, would require nondiscrimination once symptoms become
visible but permit discrimination when the disease, though
present, is not yet visible. I am therefore satisfied that the
statutory and regulatory definitions are well met. HIV infection
is "a physical . . . impairment that substantially limits . . .
major life activities," or is so perceived,
42 U.S.C. Ã‚Â§ 12102(2)(A), (C), including the afflicted individual's family
relations, employment potential, and ability to care for herself,
see 45 C.F.R. Ã‚Â§ 84.3(j)(2)(ii) (1997); 28 C.F.R. Ã‚Â§ 41.31(b)(2)
I further agree, in view of the "importance [of the issue] to
health care workers," ante, at 654-655, that it is wise to
remand, erring, if at all, on the side of caution. By taking
this course, the Court ensures a fully informed determination
whether respondent Abbott's disease posed "a significant
risk to the health or safety of [petitioner Bragdon] that [could
not] be eliminated by a modification of policies, practices, or
procedures . . . ." 42 U.S.C. Ã‚Â§ 12182(b)(3).
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and
JUSTICE THOMAS join, and with whom JUSTICE O'CONNOR joins
as to Part II, concurring in the judgment in part and
dissenting in part.
Is respondent Abbott (hereinafter respondent) Ã¢â‚¬â€ who has tested
positive for the human immunodeficiency virus (HIV) but was asymptomatic
at the time she suffered discriminatory treatment Ã¢â‚¬â€ a person with a
"disability" as that term is defined in the Americans with
Disabilities Act of 1990 (ADA)? The term "disability" is defined
in the ADA to include:
"(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment."
42 U.S.C. Ã‚Â§ 12102(2).
It is important to note that whether respondent has a
disability covered by the ADA is an individualized inquiry.
The Act could not be clearer on this point: Section 12102(2)
states explicitly that the disability determination must be
made "with respect to an individual." Were this
not sufficiently clear, the Act goes on to provide that the
"major life activities" allegedly limited by an impairment must
be those "of such individual." Ã‚Â§ 12102(2)(A).
The individualized nature of the inquiry is particularly
important in this case because the District Court disposed of it
on summary judgment. Thus all disputed issues of material fact
must be resolved against respondent. She contends
that her asymptomatic HIV status brings her within the first
definition of a "disability."[fn1] She must therefore
demonstrate, inter alia, that she was (1) physically or
mentally impaired and that such impairment (2) substantially
limited (3) one or more of her major life activities.
Petitioner does not dispute that asymptomatic HIV-positive status
is a physical impairment. I therefore assume this to be the
case, and proceed to the second and third statutory requirements
According to the Court, the next question is "whether
reproduction is a major life activity." Ante, at 638.
That, however, is only half of the relevant question. As
mentioned above, the ADA's definition of a "disability" requires
that the major life activity at issue be one "of such
individual." Ã‚Â§ 12102(2)(A). The Court truncates the
question, perhaps because there is not a shred of record evidence
indicating that, prior to becoming infected with HIV,
respondent's major life activities included reproduction[fn2]
for the moment that reproduction is a major life activity at
all). At most, the record indicates that after learning of her
HIV status, respondent, whatever her previous inclination,
conclusively decided that she would not have children. App. 14.
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." Ibid. 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. Brief for Respondent
But even aside from the facts of this particular case, the
Court is simply wrong in concluding as a general matter that
reproduction is a "major life activity." Unfortunately, the
ADA does not define the phrase "major life activities." But
the Act does incorporate by reference a list of such activities
contained in regulations issued under the Rehabilitation
Act. 42 U.S.C. Ã‚Â§ 12201(a); 45 C.F.R. Ã‚Â§ 84.3(j)(2)(ii)
(1997). The Court correctly recognizes that this list of major life
activities "is illustrative, not exhaustive," ante, at 639,
but then makes no attempt to demonstrate that reproduction is a major
life activity in the same sense that "caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working" are. Ante, at 638-639.
Instead, the Court argues that reproduction is a "major" life
activity in that it is "central to the life process itself."
Ante, at 638. In support of this reading, the Court
focuses on the fact that "`major'" indicates "`comparative
importance,'" ibid.; see also Webster's Collegiate
Dictionary 702 (10th ed. 1994) ("greater in dignity, rank,
importance, or interest"), ignoring the alternative definition of
"major" as "greater in quantity, number, or extent,"
ibid. It is the latter definition that is most
consistent with the ADA's illustrative list of major life
No one can deny that reproductive decisions are important in a
person's life. But so are decisions as to who to marry, where to
live, and how to earn one's living. Fundamental importance of
this sort is not the common thread linking the statute's listed
activities. The common thread is rather that the activities are
repetitively performed and essential in the day-to-day existence
of a normally functioning individual. They are thus quite
different from the series of activities leading to the birth of a
Both respondent, Brief for Respondent Abbott 20, n. 24, and
the, Government, Brief for United States Amicus Curiae 13, argue that
reproduction must be a major life activity because regulations issued under
the ADA define the term "physical impairment" to include physiological
disorders affecting the reproductive system. 28 C.F.R. Ã‚Â§ 36.104
(1997). If reproduction were not a major life activity, they argue,
then it would have made little sense to include the reproductive
disorders in the roster of physical impairments. This argument
is simply wrong. There are numerous disorders of the reproductive
system, such as dysmenorrhea and endometriosis, which are so painful
that they limit a woman's ability to engage in major life activities
such as walking and working. And, obviously, cancer of the various
reproductive organs limits one's ability to engage in numerous
activities other than reproduction.
But even if I were to assume that reproduction is a
major life activity of respondent, I do not agree that an
asymptomatic HIV infection "substantially limits" that activity.
The record before us leaves no doubt that those so infected are
still entirely able to engage in sexual intercourse, give birth
to a child if they become pregnant, and perform the manual tasks
necessary to rear a child to maturity. See App. 53-54. While
individuals infected with HIV may choose not to engage in these
activities, there is no support in language, logic, or our case
law for the proposition that such voluntary choices constitute a
"limit" on one's own life activities.
The Court responds that the ADA "addresses substantial
limitations on major life activities, not utter inabilities."
Ante, at 641. I agree, but fail to see how this assists
the Court's cause. Apart from being unable to demonstrate that
she is utterly unable to engage in the various activities that
comprise the reproductive process, respondent has not even
explained how she is less able to engage in those activities.
Respondent contends that her ability to reproduce is limited
because "the fatal nature of HIV infection means that a parent is
unlikely to live long enough to raise and nurture the child to
adulthood." Brief for Respondent Abbott 22. But the ADA's
definition of a disability is met only if the alleged impairment
substantially "limits" (present tense) a major life activity.
42 U.S.C. Ã‚Â§ 12102(2)(A). Asymptomatic HIV does not presently limit
respondent's ability to perform any of the tasks necessary to bear
or raise a child. Respondent's argument, taken to its logical
extreme, would render every individual with a genetic marker for
some debilitating disease "disabled" here and now because of some
possible future effects.
In my view, therefore, respondent has failed to demonstrate that
any of her major life activities were substantially limited by
her HIV infection.
While the Court concludes to the contrary as to the "disability"
issue, it then quite correctly recognizes that petitioner could
nonetheless have refused to treat respondent if her condition
posed a "direct threat." The Court of Appeals
affirmed the judgment of the District Court granting summary
judgment to respondent on this issue. The Court vacates this
portion of the Court of Appeals' decision, and remands the case
to the lower court, presumably so that it may "determine whether
our analysis of some of the studies cited by the parties would
change its conclusion that petitioner presented neither objective
evidence nor a triable issue of fact on the question of risk."
Ante, at 655. I agree that the judgment should be
vacated, although I am not sure I understand the Court's cryptic
direction to the lower court.
"[D]irect threat" is defined as a "significant risk to the health
or safety of others that cannot be eliminated by a modification
of policies, practices, or procedures or by the provision of
auxiliary aids or services." Ã‚Â§ 12182(b)(3). This statutory
definition of a direct threat consists of two parts. First, a
court must ask whether treating the infected patient without
precautionary techniques would pose a "significant risk to
the health or safety of others." Ibid. Whether a
particular risk is significant depends on:
"`(a) the nature of the risk (how the disease is transmitted),
(b) the duration of the risk (how long is the
carrier infectious), (c) the severity of the risk (what is the
potential harm to third parties) and (d) the probabilities the
disease will be transmitted and will cause varying degrees of
harm.'" School Bd. of Nassau Cty. v. Arline, 480 U.S. 273,
Even if a significant risk exists, a health practitioner will
still be required to treat the infected patient if "a
modification of policies, practices, or procedures" (in this
case, universal precautions) will "eliminat[e]" the risk. Ã‚Â§
I agree with the Court that "[t]he existence, or nonexistence, of a
significant risk must be determined from the standpoint of the
person who refuses the treatment or accommodation," as of the
time that the decision refusing treatment is made.
Ante, at 649. I disagree with the Court, however,
that "[i]n assessing the reasonableness of petitioner's actions,
the views of public health authorities . . . are of special weight
and authority." Ante, at 650. Those views are, of
course, entitled to a presumption of validity when the actions of
those authorities themselves are challenged in court, and even in
disputes between private parties where Congress has committed
that dispute to adjudication by a public health authority. But
in litigation between private parties originating in the federal
courts, I am aware of no provision of law or judicial practice that
would require or permit courts to give some scientific views more
credence than others simply because they have been endorsed by a
politically appointed public health authority (such as the
Surgeon General). In litigation of this latter sort, which is
what we face here, the credentials of the scientists employed by
the public health authority, and the soundness of their studies,
must stand on their own. The Court cites no authority for its
limitation upon the courts' truth-finding function, except the
statement in School Bd. of Nassau Cty. v. Arline,
480 U.S., at 288, that in making findings regarding the risk of
contagion under the Rehabilitation Act, "courts normally should
defer to the reasonable medical judgments of public health officials."
But there is appended to that dictum the following footnote, which
makes it very clear that the Court was urging respect for medical
judgment, and not necessarily respect for "official" medical
judgment over "private" medical judgment: "This case does not
present, and we do not address, the question whether courts should
also defer to the reasonable medical judgments of private physicians
on which an employer has relied." Id., at 288, n. 18.
Applying these principles here, it is clear to me that petitioner
has presented more than enough evidence to avoid summary judgment
on the "direct threat" question. In June 1994, the Centers for
Disease Control and Prevention published a study identifying
seven instances of possible transmission of HIV from patients to
dental workers. See ante,
at 654. While it is not entirely certain whether these dental
workers contracted HIV during the course of providing dental
treatment, the potential that the disease was transmitted during
the course of dental treatment is relevant evidence. One need
only demonstrate "risk," not certainty of infection. See Arline,
supra, at 288 ("`The probabilities the disease will be
transmitted'" is a factor in assessing risk). Given the
"severity of the risk" involved here, i.e., near certain
death, and the fact that no public health authority had outlined
a protocol for eliminating this risk in the context of
routine dental treatment, it seems likely that petitioner can
establish that it was objectively reasonable for him to conclude
that treating respondent in his office posed a "direct threat" to
In addition, petitioner offered evidence of 42 documented
incidents of occupational transmission of HIV to health-care
workers other than dental professionals. App. 106. The Court of
Appeals dismissed this evidence as irrelevant because these
health professionals were not dentists. 107 F.3d 934, 947 (CA1
1997). But the fact that the health care workers were not
dentists is no more valid a basis for distinguishing these
transmissions of HIV than the fact that the health care workers
did not practice in Maine. At a minimum, petitioner's evidence
was sufficient to create a triable issue on this question, and
summary judgment was accordingly not appropriate.
[fn1] Respondent alternatively urges us to find that she is disabled in
that she is "regarded as" such. 42 U.S.C. Ã‚Â§ 12102(2)(C). We
did not, however, grant certiorari on that question. While
respondent can advance arguments not within the question
presented in support of the judgment below, Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14
(1985); Dandridge v. Williams, 397 U.S. 471,
475, n. 6 (1970), we have rarely addressed arguments not asserted
below. It was the United States, not respondent, that asserted
the "regarded as" argument below. The Court of Appeals declined
to address it, as should we.
In any event, the "regarded as" prong requires a plaintiff to
demonstrate that the defendant regarded him as having
"such an impairment" (i.e., one that
substantially limits a major life activity).
42 U.S.C. Ã‚Â§ 12102(2)(C) (emphasis added). Respondent
has offered no evidence to support the assertion that petitioner regarded
her as having an impairment that substantially limited her ability to
reproduce, as opposed to viewing her as simply impaired.
[fn2] Calling reproduction a major life activity is somewhat inartful.
Reproduction is not an activity at all, but a process. One could
be described as breathing, walking, or performing manual tasks,
but a human being (as opposed to a copier machine or a gremlin)
would never be described as reproducing. I assume that in using
the term reproduction, respondent and the Court are referring to
the numerous discrete activities that comprise the reproductive process,
and that is the sense in which I have used the term.
JUSTICE O'CONNOR, concurring in the judgment in part and dissenting
I agree with THE CHIEF JUSTICE that respondent's claim
of disability should be evaluated on an individualized basis and
that she has not proved that her asymptomatic HIV status
substantially limited one or more of her major life activities.
In my view, the act of giving birth to a child, while a very
important part of the lives of many women, is not generally the
same as the representative major life activities of
all persons Ã¢â‚¬â€ "caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working" Ã¢â‚¬â€ listed in regulations relevant to the Americans with
Disabilities Act of 1990. See 45 C.F.R. Ã‚Â§ 84.3(j)(2)(ii) (1997);
28 C.F.R. Ã‚Â§ 41.31(b)(2) (1997). Based on that conclusion, there is
no need to address whether other aspects of intimate or family
relationships not raised in this case could constitute major life
activities; nor is there reason to consider whether HIV status
would impose a substantial limitation on one's ability to reproduce
if reproduction were a major life activity.
I join in Part II of THE CHIEF JUSTICE'S opinion
concurring in the judgment in part and dissenting in part, which
concludes that the Court of Appeals failed to properly
determine whether respondent's condition posed a direct threat.
Accordingly, I agree that a remand is necessary on that issue.