Handicap Rights

By Richard Lacayo

The issue at hand was tuberculosis, but the question in many minds was AIDS. In a decision with important implications for employees and schoolchildren with serious illnesses, the U.S. Supreme Court last week ruled that a federal law against handicap discrimination can protect those with contagious diseases.

The 7-to-2 decision involved the case of Gene Arline, who in 1979 was dismissed as a third-grade teacher after she suffered her third flare-up of tuberculosis symptoms in two years. The school board in Nassau County, Fla., said it feared she could spread the disease. Bitter "after what they did to me," Arline sued, arguing that she was protected by the 1973 federal Rehabilitation Act, which prohibits discrimination against the handicapped by recipients of federal funds. The trouble was that the law made no specific mention of contagious diseases.

But last week the high court used sweeping language to rule that Arline's rights had been violated. Writing for the majority, Justice William Brennan held that Congress had passed the law "to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others." In a dissent that was joined by Antonin Scalia, Chief Justice William Rehnquist said neither the language of the law nor the record of congressional discussion preceding its passage provided evidence that contagiousness was intended to fall within its definition of handicap. The majority of the Justices were convinced, however, that in amendments to the law the legislators had acknowledged that the "myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment."

Employers may still dismiss someone who is incapable of doing work or who poses a significant risk of spreading disease. But, Brennan stressed, each individual case must be judged in the light of medical evidence that such a risk exists and a showing that safe alternative work cannot reasonably be found for the employee.

"The fact that some persons who have contagious diseases may pose a serious health threat to others," he wrote, "does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases." Accordingly, he left it for a lower court to determine, for instance, whether Arline could safely re-enter the classroom or be assigned to a nonteaching job.

Sufferers from epilepsy, hemophilia and other conditions that often prompt discrimination were comforted by the court's opinion. But it was AIDS patients who appeared to be the biggest winners, as the decision was a clear repudiation of the Justice Department's view on AIDS discrimination. The department had argued that an employer may discriminate against workers purely on the basis of fear that they could spread a disease, even if that fear is irrational. The court ruling mentions AIDS only in a footnote, in which it declines for now to decide whether carriers of the AIDS virus who do not actually have the disease might also be considered handicapped. But taken as a whole, the court's broad language strongly suggests that people who are suffering from AIDS will be able to use the handicap law as a protection against job discrimination. Assistant Attorney General Charles Cooper conceded as much, saying "the decision essentially rejected our analysis."

The implications of the high court's pronouncement were dramatized last week by a Louis Harris survey of 227 scientists. They predicted that more than 1,000,000 Americans will have developed AIDS by the year 2000 if no cure or vaccine is discovered before then. Courts and administrative agencies in about half the states have already decided that AIDS falls within the scope of state-level disability statutes. Last week's decision from the high bench sent a complementary message. "The message is of common sense in a time of crisis," proclaimed Thomas Stoddard, executive director of the Lambda Legal Defense and Education Fund, a gay-rights organization. "It is that people deserve individualized treatment, compassion and fairness."

With reporting by Anne Constable/Washington