Is HIV Disability under the Americans with Disabilities Act: Unanswered Questions after Bragdon v. Abbott

Prior to the passage of the ADA in 1990, the term individual with a handicap had been clearly established under federal disability laws to include all people with HIV. Every reported decision under the Rehabilitation Act and the Fair Housing Amendment Act had determined that asymptomatic HIV was protected as a per se disability. Prior to 1997, only a few Courts had faced the issue of whether a plaintiff with asymptomatic HIV was disabled under the ADA. In 1997, the Fourth and First Circuit Courts of Appeal decided cases in direct conflict with one another, opening the door for the U.S. Supreme Court to review the issue of the definition of disability under the ADA because of the split created by these Circuit Court opinions. The two cases, Abbott v. Bragdon and Runnebaum v. NationsBank of Maryland, N.A. both involved plaintiffs who were HIV - positive but asymptomatic. The Abbott Court held that asymptomatic HIV was a disability and therefore the plaintiff who was seeking dental treatment was protected under the Americans With Disabilities Act. The Runnebaum Court, on the other hand, took the opposite view and found that the plaintiff was not disabled within the meaning of the ADA and therefore was not protected from the alleged discriminatory firing by his employer. This article explores the divergent analysis applied to the two cases and then discusses the Supreme Court\u27s opinion in Bragdon v. Abbott. Finally, the article discusses what questions remain unanswered as a result of the Bragdon v. Abbott decision