OCTOBER TERM, 1997
Syllabus
BRAGDON
v. ABBOTT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No. 97-156. 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. § 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," § 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.
Held:
1. Even though respondent's HIV infection had not progressed to
the so-called symptomatic phase, it was a "disability" under §
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 § 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],"
625
§ 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, i.
e., perinatal trans-
626
Syllabus
mISSIon. 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. 642-645.
(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, §
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 objec-
627
tive, 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, Act-
628
ing Assistant Attorney General Lee, James A. Feldman, Jessica
Dunsay Silver, and Thomas E. Chandler. *
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.
§ 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 (1997).
I
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
*
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
amicus curiae.
629
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 § 302 of the ADA,
104 Stat. 355, 42 U. S. C. § 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." § 12182(a).
The term "public accommodation" is defined to include the
"professional office of a health care provider." § 12181(7)(F).
A later subsection qualifies the mandate not to discrimi-
nate. It provides:
"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." § 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
630
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.
II
We first review the ruling that respondent's HIV infection
constituted a disability under the ADA. The statute defines
disability as:
"(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." §
12102(2).
631
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.
A
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. §
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. § 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, 681682 (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
632
Rehabilitation Act of 1973 (29 U. S. C. 790 et seq.) or the
regulations issued by Federal agencies pursuant to such title." 42
U. S. C. § 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.
1
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 § 504 of that statute.
Consolidated Rail Corporation v.
Darrone, 465 U. S. 624, 634 (1984)
(citing Exec. Order No. 11914,3 CFR 117 (1976-1980 Comp.)). Section
504 prohibits discrimination against individuals with disabilities
by recipients of federal financial assistance. 29 U. S. C. § 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" to mean:
"(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 CFR § 84.3(j)(2)(i)
(1997).
633
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 CFR 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 § 504 to the Attorney General.
See,
e. g., Exec. Order No. 12250, 3 CFR 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 CFR § 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 regulations.
Ibid.
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 Barre-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
634
virus invades different cells in the blood and in body tissues.
Certain white blood cells, known as helper T-Iymphocytes or CD4 +
cells, are particularly vulnerable to HI\!. 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. De Vita 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; Gardner,
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
635
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
636
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 totallymphocytes. 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
637
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.
2
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 life activities.
638
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
activity.
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 process
itself.
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. § 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
639
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 45 CFR § 84.3(j)(2)(ii) (1997); 28 CFR § 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.
3
The final element of the disability definition in subsection (A)
is whether respondent's physical impairment was a substantiallimit
on the major life activity she asserts. The Rehabilitation Act
regulations provide no additional guidance. 45 CFR 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
640
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 1.9-7.)
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 approximately
25%).
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 CFR pt. 36, App. B, p. 611 (1997); 29 CFR pt.
641
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 §§ 139.1, 139.31 (1997); Md. Health Code Ann. §
18-601.1(a) (1994); Mont. Code Ann. §§ 50-18-101, 50-18-112 (1997);
Utah Code Ann. § 26-6-3.5(3) (Supp. 1997); id., § 26-6-5 (1995);
Wash. Rev. Code § 9A.36.011(1)(b) (Supp. 1998); see also N. D.
Cent. Code § 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
642
need not address the second question presented, i.
e.,
whether HIV infection is a
per se disability under the
ADA.
B
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 HI\!. 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
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 said:
643
"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 CFR § 1636.103 (1997); 7
CFR § 15e.103 (1998); 22 CFR § 1701.103 (1997); 24 CFR § 9.103
(1997); 34 CFR § 1200.103 (1997); 45 CFR §§ 2301.103,2490.103
(1997);
In re Westchester County Medical Center, [1991-1994
Transfer Binder] CCH Employment Practices Guide ~ 5340, pp.
6110-6112 (Apr. 20, 1992), aff'd, id., ~ 5362, pp. 6249-6250 (Dept.
of Health & Human Servs. Departmental Appeals Bd., Sept. 25,
1992);
644
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 (CAll 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 (CAll 1988);
Chalk v.
United States Dist.
Ct., 840 F.2d
701, 706
(CA9 1988); Doe v.
Dolton Elementary School
Dist. No. 1.1,8, 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
645
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. 101485, 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. §
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 HI\': 54 Fed. Reg. 3232, 3245 (1989) (codified at 24 CFR §
100.201 (1997)); see also
In re Williams, 2A P-H Fair
Housing-Fair Lending ~ 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 ~ 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 congressional design.
646
C
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. § 12186(b), to render technical assistance explaining the
responsibilities of covered individuals and institutions, §
12206(c), and to enforce Title III in court, § 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 CFR § 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. § 36.104. The Justice Department went
further, however. It added "HIV infection (symptomatic and
asymptomatic)" to the list of disorders constituting a physical
impairment. § 36.104(1)(iii). The technical assistance the
Department has issued pursuant to 42 U. S. C. § 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 N at. Disability L. Rep. (LRP) ~
360, p. 1167 (Feb. 9, 1994); Response to A. Laurence Field, 5 Nat.
Disability L. Rep. (LRP) ~ 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 CFR 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).
647
We also draw guidance from the views of the agencies authorized
to administer other sections of the ADA. See 42 U. S. C. § 12116
(authorizing EEOC to issue regulations implementing Title I); §
12134(a) (authorizing the Attorney General to issue regulations
implementing the public services provisions of Title II, subtitle
A); §§ 12149, 12164, 12186 (authorizing the Secretary of
Transportation to issue regulations implementing the
transportation-related provisions of Titles II and III); § 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 CFR §
35.104(1)(iii) (1997); 49 CFR §§ 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 § 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 §
902.4(c)(1), p. 902-21; accord, id., § 902.2(d), p. 90214, n. 18.
In the EEOC's view, "impairments ... such as HIV infection, are
inherently substantially limiting." 29 CFR pt. 1630, App., p. 350
(1997); EEOC Technical Assistance Manual II-4; EEOC Interpretive
Manual § 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.
648
III
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 thencurrent 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 of others?
"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 separate
consideration.
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. § 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
649
or services."
Ibid. Parallel provisions appear in the
employment provisions of Title 1. §§ 12111(3), 12113(b).
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. § 706(8)(D) (excluding
individuals who "would constitute a direct threat to the health or
safety of other individuals"); 42 U. S. C. § 3604(f)(9) (same). It
later relied on the same language in enacting the ADA. See 28 CFR
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. § 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 CFR § 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
650
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 CFR 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 § 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
651
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
dental office.
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 HI\!. 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
652
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
653
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 1994).
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 HI\!.
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 occupa-
654
tional transmission of HI\!. 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 aI., 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 im-
655
portance to health care workers not just for the result but also
for the precision and comprehensiveness of the reasons given for
the decision.
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).
656
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. §§ 12102(2)(A), (C),
including the afflicted individual's family relations, employment
potential, and ability to care for herself, see 45 CFR §
84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997).
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 determina-
657
tion 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. § 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.
I
Is respondent Abbott (hereinafter respondent)-who has tested
positive for the human immunodeficiency virus (HIV) but was
asymptomatic at the time she suffered discriminatory treatment-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 individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." 42 U. S. C. §
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." § 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
658
Opinion of REHNQUIST, C. J.
that her asymptomatic HIV status brings her within the first
definition of a "disability." 1 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 HIVpositive status
is a physical impairment. I therefore assume this to be the case,
and proceed to the second and third statutory requirements for
"disability."
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." § 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 2
(assuming
1 Respondent alternatively urges us to find that she is disabled
in that she is "regarded as" such. 42 U. S. C. § 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. § 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.
2 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 com-
659
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 HI\'; 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 Abbott 30-31.
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. § 12201(a); 45 CFR §
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 impor-
prise the reproductive process, and that is the sense in which I
have used the term.
660
Opinion of REHNQUIST, C. J.
tance,'" 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 activities.
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 child.
Both respondent, Brief for Respondent Abbott 20, n. 24, and the
Government, Brief for United States as
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 CFR § 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
661
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. § 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.
II
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
662
Opinion of REHNQUIST, C. J.
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." § 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, 288
(1987).
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. § 12182(b)(3).
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,
663
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,
664
Opinion of O'CONNOR, J.
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 (" '[T]he 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 his safety.
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 (CAl1997). 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.
JUSTICE O'CONNOR, concurring in the judgment in part and
dissenting in part.
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
665
all persons-"caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working"-listed in regulations relevant to the Americans with
Disabilities Act of 1990. See 45 CFR § 84.3(j)(2)(ii) (1997); 28
CFR § 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 substantiallimitation 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.
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