With any luck, the recently-enacted ADA Amendments Act of 2008 — with a mandate to construe the definition of disability “in favor of broad coverage” — will put an end to calamities such as inflicted in this Seventh Circuit decision, where the panel majority affirms dismissal of an ADA case because the EEOC plead the wrong kind of disability: HIV infection instead of AIDS.
EEOC v. Lee’s Log Cabin, Inc., No. 06-3278 (7th Cir. Oct. 6, 2008): Stewart. a frequent customer of the Lee’s Log Cabin restaurant, applied to work there in 2004 when she was 18 years old. Stewart admitted on the application that she had a lifting restriction of ten pounds, which was less than the 25-30 pounds provided on the job description. A month after making her application, Stewart returned to ask the assistant manager (named Zastrow) whether they had considered her application. Unfortunately, Zastrow had learned (apparently through a newspaper story) that Stewart was HIV-positive, had been fired by a prior employer and that the EEOC had reached a settlement on her behalf for disability discrimination. When Stewart got her application returned to her, it had “HIV +” written on the front.
The EEOC filed a complaint alleging that the defendant failed to hire her “because it learned that she was HIV positive.” By the time the parties set about briefing summary judgment, though, the EEOC had switched to describing Stewart’s condition as “AIDS.” The district court considered this to be a “gross departure” from the agency’s original theory, disregarded the agency’s declarations (by Stewart and her attorney) and dismissed the case.
The panel split over the issue of whether pleading HIV-positive status was materially different from alleging AIDS. The majority opinion held that the district court did not abuse its discretion in disregarding the affidavits that identified AIDS, rather than HIV infection, as the pertinent disability:
“The ADA’s applicability depends upon whether the claimant’s asserted impairment is a ‘disability’ within the meaning of the statute; this, in turn, depends upon whether the asserted impairment ‘substantially limits one or more of the major life activities’ of the claimant. Given the symptomatic variances in the different stages of this disease, whether an ADA claimant was HIV-positive or had full-blown AIDS at the time of the alleged discrimination is highly relevant to this foundational aspect of the claim. The EEOC has not explained why it waited until its response to summary judgment, a month before trial, to disclose that Stewart had AIDS and that this was the actual basis for the discrimination alleged in the case.”
The panel went on to hold, laternatively, that Stewart was not a “qualified individual” owing to her lifting restriction:
“Log Cabin required its wait-staff employees to lift, transport, and carry objects weighing from 25 to 30 pounds up to 20 or more times per shift, and Stewart indicated on her job application that she could not lift more than 10 pounds. The EEOC claims Log Cabin’s heavy-lifting requirement is pretextual, and as proof points to one waitress at the restaurant who could not meet the requirement. The agency overstates this waitress’s limitations; she could handle the lifting required by the job, she simply could not lift over her head. Log Cabin was able to accommodate her ‘no overhead lifting’ limitation. Stewart, on the other hand, answered ‘no’ to the application question whether accommodations could be made to overcome her lifting restriction.”
Judge Williams, in dissent, objected to both holdings. It found that the HIV/AIDS dichotomy was slicing the baloney too thin. After canvassing the medical facts about HIV and AIDS, and why they are really two points on a continuum, Judge Williams addressed the pleadings issue:
“HIV and AIDS are not separate diseases. Importantly, persons with AIDS do not cease to be HIV positive; once someone is HIV positive or is infected with HIV, she is always HIV positive. Nor do persons with AIDS no longer suffer from HIV infection.
“Therefore, having AIDS is not inconsistent with being HIV positive, nor is it a new ’cause of action’ under the ADA. By the time Stewart applied for a position as a waitress at Log Cabin, she was both HIV positive and had AIDS. Though she did not reveal this to Log Cabin at the time she applied for the job, a manager at the restaurant discovered she was infected with HIV and wrote ‘HIV +’ in large capital letters across her application. Stewart was not hired. Pursuant to the federal notice pleading standard, the EEOC’s complaint, which merely initiated this litigation, provided a short and plain statement of the grievance: Log Cabin refused to hire Stewart ‘because it learned she was HIV positive.’ Any facts consistent with the complaint’s allegations could be proved later and did not require an amended complaint. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-14 (2002); Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2006).”
Judge Williams also reckoned that there was at least a genuine issue of material fact on the lifting restriction: “Though she noted on her application that there was no way Log Cabin could accommodate her inability to lift more than ten pounds, she also contemporaneously told Log Cabin that her inability to do so was temporary. Indeed, that would explain why she wrote on her application that there was no accommodation for her restriction. If she believed the restriction would not be an issue by the time she began the position, there would be no reason for the Log Cabin to have to ‘accommodate’ her. Therefore, a reasonable jury could find that Stewart was qualified for the job.”
The pity, despite Judge Williams’s ingenuity, is that all of this could have been avoided if the EEOC had simply plead “HIV/AIDS.”