Employer’s refusal to hire an HIV-positive job applicant was not an ADA violation.
Editor’s comment: To succeed on a claim under the old ADA, a Plaintiff must establish he/she is
a) “Disabled,”
b) Qualified to perform the essential function of the job either with our without reasonable accommodation, and
c) Suffered an adverse employment action because of the disability.
In Equal Employment Opportunity Commission (EEOC) v. Lee’s Log Cabin, Inc., (No. 06-3278 October 6, 2008), the EEOC (Plaintiff), on behalf of an HIV-positive female job applicant, sued Defendant due to the latter’s refusal to hire the applicant as a waitress. The applicant applied for the waitress position in 2004. She was 18 years of age and had been born with HIV. On the job application she apprised Defendant of her lifting restriction of 10 lbs. She further noted on the application this restriction could not be accommodated. The applicant knew from the job description Defendant’s wait-staff was required to lift between 25 and 30 lbs. multiple times during a shift. The parties disputed whether the applicant later told Defendant’s assistant manager her restriction was temporary.
The applicant returned to Defendant’s restaurant one month later and asked to revise her application. The assistant manager retrieved the application at which time the applicant saw “HIV+” written on the front. The assistant manager acknowledged he made the notation. He further explained the store owner made the hiring decisions. The store owner later testified he did not hire the applicant because she was unable to lift more than 10 lbs. and had no prior waitressing experience.
The EEOC filed suit alleging Defendant violated the American with Disabilities Act (ADA). This was the applicant’s second lawsuit in three years. In the first suit she alleged her employer fired her when it learned she was HIV positive. In the first suit the EEOC reached a settlement on her behalf.
Defendant filed a motion for summary judgment. Subsequently, the EEOC filed affidavits from the applicant and her physician which discussed how “AIDS” or “HIV/AIDS” affected her life activities. This was the first time the applicant alleged she actually had AIDS. The EEOC presented no evidence on how being HIV-positive alone affected the applicant. In addition, the EEOC submitted the physicians’ affidavit in violation of the District Court’s pre-trial order because it had failed to disclose the physician as its expert.
The District Court granted the motion for summary judgment. It held HIV and AIDS are not synonymous and the EEOC’s eleventh hour attempt to shift the factual basis of its claim came too late. Therefore, it disregarded the affidavits. The District Court held the EEOC’s failed to present evidence which showed HIV affected any of the applicant’s major life activities and thereby failed to make a threshold showing that her HIV-positive status met the statutory definition of “disability.” Finally, the District Court held there was no showing Defendant knew the applicant suffered from AIDS and it was “questionable” whether the applicant was a qualified individual under the ADA. Plaintiff appealed.
The Seventh Circuit noted the ADA prohibits discrimination against a qualified individual with a disability because of the disability. It noted further whether an individual has a disability under the ADA is an individual inquiry. The Seventh Circuit found the EEOC failed to explain why it waited until its response to summary judgment to disclose the applicant had AIDS “and that this was the actual basis for the discrimination alleged.” Thus, the Seventh Circuit held the District Court had not abused its discretion in disregarding the affidavits submitted by the applicant and her physician. Thus, the record was silent on the effect of HIV on the applicant’s life activities and the District Court necessarily concluded the EEOC failed to make a threshold evidentiary showing of a disability within the meaning of the ADA.
The Seventh Circuit also addressed whether the applicant was a “qualified individual” under the ADA. It found she was not. The Seventh Circuit found a “qualified individual” is one “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” and must also “satisfy the requisite skill, experience, education and other job-related requirements of the employment position.” In the present case the applicant informed the Defendant in her own job application she was unable to lift over 10 lbs. and further advised Defendant her restriction could not be accommodated. In addition, the applicant knew the position required lifting more then 10 lbs. Thus, summary judgment in favor of the Defendant was appropriate.
We note this ruling may be impacted when the ADAAA goes into effect on January 1, 2009. This article was researched and crafted by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.
