1 By “social construction” we mean the complex of images, perceptions and assumptions thathave come to be associated with and surround the disease. Our use of the term is quite similar toSontag’s use of the term “metaphor.” See generally Susan Sontag, AIDS and its Metaphors (1989) (explaining how our understanding of AIDS is shaped by the metaphors we use in discussingthe disease).

2 Sontag depicts the initial construction of HIV disease as a plague. See id. at 44. The publicassociated HIV not only with death, but also with homosexuality, sexuality and the use of illegaldrugs. See id. For a further discussion of this imagery, see infra text accompanying notes 14-29.

3 Recent reports suggest that in many individuals, combinations of protease inhibitors can reduce the level of HIV in patients’ blood below detectable levels. See Altman, Lawrence K., With AIDS Advance, More Disappointment, N.Y. Times, Jan. 19, 1997, at A-1Google Scholar; see also Deekset, Steven G. et al., HIV-1 Protease Inhibitors: A Review for Clinicians, 277 JAMA 145, 148 (1997)Google Scholar (noting that the four protease inhibitors in early phase 1 and phase 2 studies “increased the level of CD4+T lymphocytes and decreased the levels of plasma viral RNA, sometimes dramatically”). The treatments,however, do not work for everyone, and no one knows their long-term effects. See Altman, supra, at A-1.

4 This was most clearly displayed by Sullivan, Andrew in his article, When Plagues End, N.Y.Times, Nov. 10, 1996, Magazine, at 52.Google Scholar

5 Sullivan, however, writes of the difficulties experienced by individuals who thought theywere terminally ill and now discover a life before them. See id.

6 See Altman, supra note 3, at 14. Overconfidence about our “conquest” of tuberculosis, combined with the advent of drug resistance and the failure to address the underlying social problemsthat helped breed the disease has been blamed for the reemcrgence of epidemic tuberculosis in thelate 1980s. See United Hospital Fund of New York, The Tuberculosis Revival: Individual Rights and Societal Obligations in a Time of AIDS 5-6 (1992).

7 See, e.g., Kastor, Elizabeth, The New ‘Miracle ‘ AIDS Drugs: A Dose of Hope and Hard Reality, Wash. Post, Sept. 5, 1996, at A1Google Scholar (describing the plight of individuals for whom protease inhibitors do not work).

8 Rich, Frank, The Miracle Backlash, NY. Times, Dec. 7, 1996, at 23.Google Scholar

9 See Decks et al., supra note 3, at 150 (noting that drug resistance presents a considerable obstacle to these medications’ long-term success).

10 According to a recent article,

New Hope in HIV Disease, 274 Science 1988, 1989 (1996).Google Scholar For a general discussion of the international aspects of the epidemic, see Global Aids Policy Coalition, Aids and the World II: Global Dimensions, Social Roots, and Responses (Jonathan M. Mann & Daniel J.M. Tarantolla eds., 1996). The problem also exists in the United States. Deeks et al. recently reported that “[t]he total annual cost of combination therapy plus the associated monitoring will ... be well over $10,000 per year, assuming no major toxicity.” Deeks et al., supra note 3, at 151.

11 See discussion infra Part III.C.

12 See cases cited infra Part V.

13 Pub. L. No. 101-336, 104 Stat. 328 (1990) (codified at 42 U.S.C. §§ 12101-13 (1994)).

14 See Pneumocystis Pneumonia—Los Angeles, 30 Morbidity & Mortality Wkly. Rep. (U.S.Dep’t Health & Human Servs.) No. 21, at 251 (June 5, 1981).

15 See, e.g., Kaposi’s Sarcoma and Pneumocystis Among Homosexual Men—New York City andCalifornia, 30 Morbidity & Mortality Wkly. Rep. (U.S. Dep’t Health & Human Servs.) No. 25, at305 (July 3, 1981).

16 Cindy Patton, Sex and Germs: The Politics of AIDS 24 (1985).

17 See id. at 5.

18 Dolgin, Janet L., AIDS: Social Meanings and Legal Ramifications, 14 Hofstra L. Rev. 193, 197 (1985).Google Scholar For a discussion from this period of the social meaning of AIDS, see Dennis Altman, AIDS in the Mind of America 19-21, 58-81 (1986).

19 See Orland, Leonard & Wise, Sue L., The AIDS Epidemic: A Constitutional Conundrum, 14 Hofstra L. Rev. 137, 144 (1985).Google Scholar

20 See Sontag, supra note 1, at 60.

Id.

21 See, e.g., Altman, supra note 18, at 58-81; Monroe E. Price, Shattered Mirrors: Our Search for Identity and Community in the AIDS Era 63-69 (1989); Sontag, supra note 1, at26; Doglin, supra note 18, at 195-200.

22 See Parmet, Wendy E., AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53, 54 n.4 (1985)Google Scholar (discussing calls for quarantining individuals with HIV infection).

23 See Schwarz, Frederick A.O. Jr. & Schaffer, Frederick P., AIDS in the Classroom, 14 Hofstra L. Rev. 163, 173 (1985).Google Scholar

24 See White v. Western School Corp., No, IP 85-1192-C (S.D. Ind. Aug, 23, 1985) (LEXIS, Genfed Library, Dist. File).

25 See id.

26 The late 1980s saw the emergence of a new crisis for already overburdened inner-city hospitals. Increasing numbers of HIV-infected “boarder babies,” a term given to those infants not in needof hospital care but lacking homes because of their HIV status, soon got the attention of the popularpress. See Colburn, Don, Children, AIDS and a Special Home; ‘Grandma’s House’ Is to Be theCity’s First Residence for HIV-infected Infants, Wash. Post, Jan. 19, 1988Google Scholar, (Health) at 6 (“Thegrowing number of boarder babies is directly related to the rising number of births by women infected with the AIDS virus . . . .”); English, Merle, Care Beds for Tots Unfilled, Newsday, Feb. 20, 1989, at 7Google Scholar (“[0]n any given day there are about 30 boarder babies with acquired immune deficiencysyndrome in [New York City’s] 11 municipal hospitals.”).

27 Innocent victims were often presented in contrast to other infected individuals who were presumably responsible for contracting the disease because of their irresponsible lifestyles. See Brandt, Allan M., AIDS; From Social History to Social Policy, in AIDS: The Burdens of History 165, 165-66 (Fee, Elizabeth & Fox, Daniel M. eds., 1988).Google Scholar Children, hemophiliacs, recipients of bloodtransfusions and sometimes the wives of secretly bisexual men were frequently portrayed by themedia as the epidemic’s innocent victims. See id.

28 For examples of attempts to provide a constitutional law framework from which to assess thechallenges posed by the AIDS epidemic, see Gostin, Lawrence O., The Future of Public Health, 12 Am. J.L. & Med. 461 (1986)Google ScholarPubMed; Merritt, Deborah, Communicable Disease and Constitutional Law:Controlling AIDS, 61 N.Y.U. L. Rev. 739 (1986).Google Scholar

29 Report of the President’s Commission on the Human Immunodeficiency Virus 119(1988) [hereinafter President’s commission]. Others have argued that excessive concern aboutdiscrimination prevented public health officials from adopting “traditional” strategies to stem theepidemic. See Bayer, Ronald, Rethinking: Aspects of AIDS Policy, 11 J. Contemp. Health L. & Pol’y 457 (1995).Google ScholarPubMed

30 Institute of Medicine, National Academy of Sciences, Confronting AIDS: Update 1988, at 62-64.

31 See Parmet, supra note 22, at 87 n. 222.

32 See id.

33 478 U.S. 186 (1986).

34 Leonard, Arthur, Employment Discrimination Against Persons with AIDS, 10 U. Dayton L.Rev. 681 (1985)Google ScholarPubMed [hereinafter Leonard I].

35 At the time, the common term was handicap discrimination. See infra note 40 and accompanying text.

36 29 U.S.C. § 794(1994).

37 See Leonard, Arthur, Employment Law Revisited, 14 Hofstra L. Rev. 11, 21 n.52 (1985).Google Scholar

38 For a discussion of the development of disability discrimination law, see Drimmcr, Jonathan C., Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, 40 UCLA L. Rev. 1341, 1375-85 (1993).Google Scholar

39 This imagery of disability is most apparent in the U.S. Supreme Court’s opinion in Buck v.Bell, 274 U.S. 200 (1927), which upheld the forced sterilization of a woman who was thought to bementally retarded. The opinion manages simultaneously to picture the woman as a threat to society,and as requiring society’s paternalistic protection. Such protection would be afforded by sterilizingher and thereafter releasing her from institutionalization, which would otherwise have been necessary both for her own and society’s good.

40 For discussions of social attitudes toward people with disabilities, see Drimmer, supra note 38, at 1342-55; West, Jane, The Social and Policy Context of the Act, in The Americans with Disabilities Act: From Policy to Practice 3, 9-11 (West, Jane ed., 1991)Google Scholar; Zola, Irving Kenneth, Self, Identity and the Naming Question: Reflections on the Language of Disability, 36 Soc. -Sci. Med. 167, 168 (1993).CrossRefGoogle ScholarPubMed

41 Hahn, Harlan, The Politics of Physical Differences: Disability and Discrimination, in Perspectives on Disability 118-20 (Nagler, Mark ed., 1990).Google Scholar

42 Pub. L. No. 93-112, 87 Stat. 355, 394 (codified at 29 U.S.C. § 794 (1994)).

43 29 U.S.C. § 794. The original statute used the term “qualified handicapped individual.” Pub. L. No. 93-112, § 504, 87 Stat. 355, 393 (1973). That term was later amended to conform withthe more contemporary phrase “individual with a disability.” Pub. L. No. 102-569, 106 Stat. 4344(1993) (codified at 29 U.S.C. § 706(8)). Because much of the early case law and commentary surrounding HIV addressed the statute prior to its amendment, this Article inevitably uses both terms.

44 29 U.S.C. § 706(8)(B).

45 The possibility that individuals with AIDS could be protected by disability law was introduced earlier by Burns, Robert S., See AIDS: A Legal Epidemic?, 17 Akron L. Rev. 717, 730 n.139, 734 n.193 (1984).Google Scholar He did not develop the argument as fully as Leonard later did.

46 Leonard I, supra note 34, at 691. In making this argument, Leonard was implicitly relyingon the fact that all individuals with AIDS were ill. This fact was inevitable because at the time inwhich Leonard was writing, the definition of AIDS was such that only individuals who had comedown with one or more opportunistic infections were categorized as having AIDS. Later developments in testing for the HIV virus, T-cell counts, and ultimately viral loads, led to changes in thedefinition of AIDS itself, as well as a reconsideration of the disease as HIV disease, constituting aspectrum of infection, rather than a sharp dichotomy of diagnosis. See Centers for Disease Controland Prevention, 1993 Revised Classification System for HIV Infection and Expanded SurveillanceCase Definition for AIDS Among Adolescents and Adults, 41 Morbidity & Mortality Wkly. Rep.(U.S. Dep’t Health & Human Servs.) No. RR-17, at 1, 4 (Dec. 25, 1992).

47 See Leonard I, supra note 34, at 691.

48 Id. at 691. Leonard noted that the federal law explicitly provided for coverage of federalemployees and employees of federally financed entities who were regarded as having an impairment.See id. at 689-91. He also discussed the fact that some state courts found that individuals who areregarded as having an impairment were covered although their state disability discrimination statuteslacked the federal statute’s specific language. See id. at 691 n.43.

49 Id. at 695.

50 Id. at 696.

51 See id.

52 Brief of the United States as Amicus Curiae at 19-20 & n.17, School Bd. v. Arline, 480 U.S.273 (1977) (No. 85-1277).

53 See Leonard 1, supra note 34, at 696.

54 See id.

55 123 Cong. Rec. 13515 (1977) (remarks of Sen. Humphrey) (discussing amendment to theRehabilitation Act).

56 29 U.S.C. § 706(8)(B) (1994) (emphasis added).

57 See Leonard 1, supra note 34, at 691.

58 45 C.F.R. § 84.3(j)(2)(ii) (1996). Identical language appears in the current regulations underthe ADA. 29 C.F.R. § 1630.2(1) (1996).

59 Memorandum from Assistant Attorney General Cooper on Application of Section 504 of Rehabilitation Act to Persons with AIDS, Daily Lab. Rep. (BNA) No. 122, at D-1 (June 25, 1986) [hereinafter Cooper Memorandum].

60 See, e.g., Shumaker, Gregory M., AIDS; Does It Qualify as a ‘Handicap’ Under the Rehabilitation Act of 1973? 61 Notre Dame L. Rev. 572, 586 (1986).Google ScholarPubMed

61 See Cooper Memorandum, supra note 59.

62 id

63 480 U.S. 273,275(1987).

64 See id. at 281. The earliest Rehabilitation Act case to deal with an infectious disease wasNew York State Ass’n for Retarded Children v. Carey, which concerned segregation of children at astate institution due to the high incidence of Hepatitis B. 612 F.2d 644, 646 (2d Cir. 1979). However, because the children were also mentally retarded, the court did not have to consider whetherinfection with Hepatitis B alone could support a finding of disability. See id. at 649.

65 Arline, 480 U.S. at 281.

66 Id. at 282.

67 Id. at 287-88. Section 504 only prohibits discrimination against “otherwise qualified” individuals with a disability. 29 U.S.C. § 794 (1994).

68 This assumption is supported by the fact that the United States cited the Department of Justice’s opinion on the application of the Rehabilitation Act to HIV. Brief of the United States asAmicus Curiae at 13 n.9, Arline (No. 85-1277). The Court noted this and stated that

Id. at 282 n.7. Nevertheless, the Court discussed the “regarded as” prong of the definition even though that discussion was entirely unnecessary given the Court’s finding that Arline herself had a physical impairment that substantially limited one or more of her major life activities. See id. at 282.

69 Id at 284.

70 See Memorandum to Culvahouse, Arthur B Jr., Justice Department Memorandum on Application of Rehabilitation Act’s Section 504 to HIV Infected Persons, Daily Lab. Rep. (BNA) No. 195, at D-1 (Oct. 7, 1988)Google Scholar [hereinafter Culvahouse Memorandum].

71 See id

72 See id

73 Id.

74 See id.

75 Id. (citing School Bd. v. Arline, 480 U.S. 273, 284 (1987)). Indeed, after discussing the Supreme Court’s analysis, the Department stated that “we think this aspect of the Supreme Court’sreasoning departs from the literal meaning of the statutory text in favor of legislative history.” Id. n.15.

76 Id.

77 See, e.g., Ray v. School Dist., 666 F. Supp. 1524, 1529 (M.D. Fla. 1987) (“While we wait for medical science to save us from what many [believe to be] a raging, indiscriminate inferno, it is the task of this Court to deal with the here and now of this lethal, inevitably fatal disease, for which there is currently no inoculation and no cure.”).

78 42U.S.C. §§ 12101-13 (1994); see also infra Part III.D.

79 See Chalk v. United States Dist. Ct., 840 F.2d 701 (9th Cir. 1988); Baxter v. City ofBelleville, 720 F. Supp 720 (S.D. Ill. 1989) (Fair Housing Act case); Doe v. Dolton Elementary Sch.Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988); Doe v. Centinela Hosp., No. CV 87-2514PAR(PX), 1988 WL 81776 (CD. Cal. June 30, 1988); Robertson v. Granite City Community UnitSch. Dist. No. 9, 684 F. Supp. 1002 (S.D. Ill. 1988); Thomas v. Atascadcro Unified Sch. Dist., 662F. Supp. 376 (CD. Cal. 1987); Local 1812, Am. Fed’n of Gov’t Employees v. Department of State,662 F. Supp. 50 (D.D.C 1987); Martinez v. School Bd., 675 F. Supp. 1574 (M.D. Fla. 1987); Ray,666 F. Supp. 1524; Doe v. Belleville Pub. Sch. Dist., 672 F. Supp. 342 (S.D. III. 1987); Shuttleworthv. Broward County, 649 F. Supp. 35 (S.D. Fla. 1986); Raytheon Co. v. California Fair Employmentand Hous. Comm’n, 261 Cal. Rptr. 197 (Cal. Ct. App. 1989); Board of Educ. v. Cooperman, 209 N.J.Super. 174 (N.J. Super. App. Div. 1986), aff’d, 523 A.2d 655 (N.J. 1987); District 27 Community Sch. Bd. v. Board of Educ., 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986).

80 See, e.g., Dolton, 694 F. Supp. at 445 (citing four then-recent decisions in support of itsholding that HIV was a disability under the Rehabilitation Act).

81 See, e.g., Ray, 666 F. Supp. at 1529-30.

82 Id. at 1529.

83 Sontag, supra note 1, at 54. Sontag makes the further point that the construction of plaguesis distinguishable from that of other diseases in that in the case of plagues, society as a whole is seenas being judged for, and therefore vulnerable to the judgment due to the deviant behavior that isbeing punished. See id. at 54. Therefore, while some individuals, such as children, may be innocent, they share in the collective guilt that incites the plague. This imagery helps explain how AIDSin the 1980s could simultaneously be seen as a disease of outcast groups who disobeyed society’sbehavioral edicts (by using IV drugs or having homosexual sex) and as a threat to children whomerely shared a classroom with an infected child.

84 The same judge that decided the Ray case also decided Martinez, 675 F. Supp. 1574. Thecourt in Martinez took the Findings of fact from Ray while leaving much of the florid language behind. See id at 1578 (citing Ray, 666 F. Supp. at 1524).

85 While the Ryan White case was in many respects the most heavily publicized case of itskind, its opinion provides little insight into the early application of section 504 of the RehabilitationAct to HIV. Although the legal argument for White’s inclusion was premised in part on section 504,the district court determined that White would first have to exhaust his administrative remedies under the Education for All Handicapped Children Act, 20 U.S.C §§ 1400-20 (1994), and thereforedid not reach the merits of any of his claims. See White v. Western Sch. Corp., No. IP 85-1192-C(S.D. Ind. Aug. 23, 1985) (LEXIS, Genfed Library, Dist. File).

86 675 F. Supp. at 1578.

87 See, e.g., Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376, 379 (CD. Cal. 1987).

88 Id. at 379.

89 Ray, 666 F. Supp. at 1529 (quoting Cooper Memorandum, supra note 59).

90 684 F. Supp. 1002, 1004 (S.D. Ill. 1988) (citing Doe v. Belleville Pub. Sch. Dist., 672 F.Supp. 342 (S.D. III. 1987)).

91 See Ray, 666 F. Supp. at 1529 (quoting Interview with C. Everett Koop, Surgeon General (July 31, 1987)).

92 Local 1812, Am. Fed’n of Gov’t Emp. v. Department of State, 662 F. Supp 50, 54 (D.D.C.1987).

93 See id. (stating that persons who carry HIV may be deemed handicapped either physically or by others’ perceptions).

94 See id.

95 See supra text accompanying note 69.

96 Decisions also exist where the parties had already stipulated as to the plaintiffs status asdisabled. See, e.g., Robertson v. Granite City Community Unit Sch. Dist., 684 F. Supp. 1002, 1006(S.D. Ill. 1988) (defendants “conceded [the point] at oral argument”). Although it cannot be statedconclusively that the construction of HIV as plague compelled such concessions, it is not altogetherunreasonable to suggest that where the social construction of a disease is so heavily weighted on apoint of law in favor of the plaintiff, a defendant might well opt to focus on other issues.

97 See, e.g., Martinez v. School Bd., 675 F, Supp. 1574, 1583 (M.D. Fla. 1987); Ray v. SchoolDist. of DeSoto County, 666 F. Supp. 1524, 1536 (M.D. Fla. 1987).

98 Ray, 666 F. Supp. at 1536.

99 See Martinez, 675 F. Supp. at 1583.

100 See, e.g., District 27 Community Sch. v. Board of Educ, 502 N.Y.S.2d 325, 336 (N.Y. Sup.Cl. 1986).

101 See, e.g., id.

102 See id.

103 Id. (quoting 34 C.F.R. § 104.3(j)(2)(iv) (1985)).

104 29 U.S.C. § 706(8)(A) (1994).

105 See, e.g., Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. III. 1988); Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376 (CD. Cal. 1987).

106 Thomas, 662 F. Supp. at 379; see also Dolton Elementary, 694 F. Supp. at 444 (“[T]he AIDS victim has a disorder of the reproductive system in that he or she cannot engage in reproductive activity without endangering the lives of both the offspring and the other parent.”). To be fair, the Dolton Elementary court also found that the plaintiff had pneumonia and diarrhea which substantially limited the major life activity of sports. See id. at 444-45.

107 See Dolton Elementary, 694 F. Supp. at 442-43; Thomas, 662 F. Supp. at 379-80.

108 Dolton Elementary, 694 F. Supp. at 445.

109 840F.2d701 (9th Cir. 1988).

110 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-13 (1994).

111 See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988) (codified as amended at 20 U.S.C. §§ 1681-88 (1994)).

112 29 U.S.C. § 706(8)(D) (1994).

113 See, e.g., 134 Cong. Rec. 4272 (1988) (statement of Sen. Harkin); id at 2935 (statement of Rep. Jeffords). In the ADA, the “direct threat” limitation was removed from the definition of theterm disability, and appears, instead, as a defense to a claim of discrimination. See 42 U.S.C. §12113(a) (1994); see also id. § 12102(2) (defining disability); id. § 12113(b) (clarifying that anemployer can impose a qualification that an individual not pose a direct threat to the health or safetyof others); id. § 12113(d)(3) (stating that the Act will not preempt, modify or amend any law applicable to food handling designed to protect the public health from individuals who pose a significanthealth and safety risk). Hence, under the ADA, an individual may have a disability even if he or shecreates a direct threat; however, such an individual will not prevail on a claim of discrimination.

114 See 29 U.S.C. §794.

115 President’s Commission, supra note 29, at 121.

116 For a discussion of the political and legislative developments leading to the introductionand eventual passage of the ADA, see West, supra note 40, at 3, 15-21.

117 See H.R. 2273, 101st Cong. (1989).

118 See infra text accompanying notes 120-29.

119 See supra text accompanying note 70.

120 H.R. Rep. No. 101-485, pt. II, at 52 (1990).

121 See S. Rep. No. 101-116, at 22 (1990).

122 See H.R. Rep. No. 101-485, pt. II, at 31; S. Rep. No. 101-116, at 8.

123 See H.R. Rep. No. 101-485, pt. II, at 31; S. REP. No. 101-116, at 8.

124 H.R. Rep. No. 101-485, pt. II, at 31; S. REP. No. 101-116, at 8.

125 135 Cong. Rec. S10, 765-01 (daily ed. Sept. 6, 1989) (statement of Sen. Helms).

126 See 136 Cong. rec. H2478 (daily ed. May 17, 1990); id. at S9684 (daily ed. July 13,1990). For a discussion of the history of this provision, see Parmet, Wendy E., Discrimination and Disability: The Challenges of the ADA, 18 L. Med. & Health Care 331, 343 nn. 122-124 (1990).Google ScholarPubMed

127 42 U.S.C. § 12113(d) (1994).

128 See Parmet, supra note 126, at 343 n.123.

129 See 136 Cong. rec. S9527, S9548 (daily cd. July 11, 1990).

130 indeed, with passage of the ADA, legislators assumed that there was no longer a need topass a law specifically prohibiting discrimination on the basis of HIV infection. Prior to the ADA’senactment, such bills had been introduced in Congress. See, e.g., S. 1575, 100th Cong. (1987)(enacted).

131 See 42 U.S.C. § 12102(2).

132 The ADA specifically supports this. See 42 U.S.C. § 12201(a).

133 See. e.g., Howe v. Hull, 873 F. Supp. 72, 78 (N.D. Ohio 1994); T.E.P. v. Lcavitt, 840 F.Supp. 110, 111 (D.Utah 1993).

134 See, e.g., Robinson v. Henry Ford Health Sys., 892 F. Supp. 176, 180 (E.D. Mich. 1994).

135 This is not to suggest that the application of the ADA to HIV discrimination was withoutcontroversy. The focus of the conflict, however, revolved not around whether HIV was a disability,but whether HIV-positive individuals posed a “significant risk to the health or safety of others.” 42U.S.C. § 12111(3). This issue proved to be especially difficult in the health care context. See, e.g.,Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir. 1995) (examining evidenceregarding medical procedures and CDC guidelines, and finding that “Dr. Doe does pose a significantrisk to the health and safety of patients”); Scoles v. Mercy Health Corp. of Southeastern Pa., 887 F.Supp. 765, 770 (E.D. Pa. 1994) (holding that the test is not whether there exists a significant risk oftransmission from doctor to patient, but is based on the possible duration and severity of harm thatmay result from transmission of HIV).

136 See infra Part IV.

137 Such statements appear regularly in both HIV and ADA educational brochures. See, e.g., U.S. Equal Employment Opportunity Comm., Pub. no. EEOC-BK-18, The Americans with Disabilities Act: Your Employment Rights as an Individual with a Disability (1991); ACLU AIDS Project, The Americans with Disabilities Act, What It Means for People Living with HIV Disease: Questions & Answers (on file with author).

138 In 1974, Congress amended the Rehabilitation Act to provide the definition of disabilitywhich now exists, with some amendments, in that Act and the ADA. See Pub. L. No. 93-516, 88Stat. 1617 (1974) (codified as amended at 29 U.S.C. §§ 701-97b (1994)). Congress designed the1974 amendment to expand the definition of disability. See S. Rep. No. 93-1294, at 4 (1974), reprinted in 1974 U.S.C.A.N.N, 6373, 6388-89. This expansion recognized the fact that the nondiscrimination provisions of the Rehabilitation Act—in contrast to the other provisions of the Actwhich supported vocational training programs—required a broader definition of disability to encompass individuals whose disability affected them in ways unrelated to employment. See id at 6413-14.

139 Thus, in a discussion quite pertinent to the question of HIV’s status as a disability, Representative Tony Coelho, one of the ADA’s chief supporters, explained how the social impact of disfigurement might make the condition a disability. See Americans with Disabilities Act of 1989:Hearings on S. 933 Before the Committee on Labor and Human Resources and the Subcommittee onthe Handicapped, 101st Cong. E1575 (1989) (Statement of Rep. Coelho).

140 See supra text accompanying notes 14-32.

141 See, e.g., Trembczsynski v. Calumet City, No. 87-C0961, 1987 U.S. Dist. LEXIS 8117, at *13(N.D. Ill. 1987);Pridemorev. Legal Aid Soc’y, 625 F. Supp. 1171, 1174 (S.D. Ohio 1985).

142 See Pridemore, 625 F. Supp. at 1175.

143 See Katradis v. Dav-El, 846 F.2d 1482, 1484-85 (D.C. Cir. 1988) (colon cancer);TrembczsynskU 1987 U.S. Dist. LEXIS at *12 (impaired vision).

144 794 F.2d 931, 933 (4th Cir. 1986).

145 See id. at 933-35.

146 See id. at 933-34.

147 See id.; see also Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994) (stating that theplaintiff “had to show not merely that her allergy made her incapable of satisfying the singular demands of a particular job, but that it foreclosed generally her opportunity to obtain the type of employment involved”); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) (holding that the plaintiffscondition only precluded his employment in one job). This proposition appears in the Equal Employment Opportunity Commission (EEOC) ADA regulations at 29 C.F.R. § 1630.2(j)(3)(i) (1996). “The inability to perform a single, particular job does not constitute a substantial limitation in themajor life activity of working.” Id.

148 See Forrisi, 794 F.2d at 934.

149 See id. Of course, in some ways, this is what the dicta in Arline seems to permit. See Parmet, Wendy E., AIDS and the Limits of Discrimination Law, 15 L. Med. & Health Care 61, 65-67 (1987)Google ScholarPubMed; see also supra text accompanying note 69.

150 See supra Part III.C.

151 See Forrisi, 794 F.2d at 932.

152 See id. at 933.

153 Id.

154 id.

155 when most of the plaintiffs before the courts were schoolchildren, viewed as innocent victims, the courts were likely to believe that the plaintiffs were “truly deserving.” See supra PartIII.C. By the 1990s, however, most of the plaintiffs were adults, who could generally be assumed tohave contracted the virus through their own behaviors. See, e.g., PHILlPSON, TOMAS J. & POSNER, RICHARD A., Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective 31 (1993)Google Scholar (“The AIDS epidemic is primarily ... the consequence of voluntary decisions . . .”). Theapplication of the Forrisi dictum in such circumstances would not bode well for an HIV-positive plaintiff.

156 See Forrisi, 794 F.2d at 934 (citing the EEOC definition of the “regarded as” prong, 29C.F.R. § 1613.702(c) (1996)).

157 See School Bd. of Nassau County v. Arline, 480 U.S. 273, 283 (1977) (finding that an “impairment might not diminish a person’s physical or mental capabilities, but could neverthelesssubstantially limit that person’s ability to work as a result of the negative reactions of others to theimpairment”).

158 See Forrisi_y 794 F.2d at 933.

159 See id. (“[A]n employer docs not necessarily regard an employee as handicapped simply byfinding the employee to be incapable of satisfying the singular demands of a particular job.”).

160 ld. at 933-934.

161 See Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994); Byrne v. Board of Educ, 979 F.2d 560, 565 (7th Cir. 1992); Welsh v. City of Tulsa, 977 F.2d 1415, 1417-18 (10th Cir. 1992); Reeder v. Frank, 813 F. Supp. 773, 782 (D. Utah 1992).

162 Welsh, 977 F.2d at 1416.

163 Id. at 1419.

164 See id.

165 See Culvahouse Memorandum, supra note 70.

166 See supra text accompanying notes 46—47.

167 See supra text accompanying note 58.

168 See Zatarin v. WDSU-Television, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995), aff’d mem.,79 F.3d 1143 (5th Cir. 1996).

169 Id. Of course, quite the same argument could be made about the major life activity ofbreathing, a physiological function that results from the proper functioning of the physical respiratory system. This argument, however, did not seem to trouble the court in Zatarin, because theregulations list breathing as a major life activity. See id.; see also 45 C.F.R. § 84.3(j)(2)(ii) (1996);29 C.F.R. § 1630.2(i) (1996).

170 See Culvahouse Memorandum, supra note 70.

171 See supra text accompanying notes 120-29.

172 See Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996); Zatarin, 881 F. Supp. at 240. But see Abbott v. Bragdon, 1997 U.S. App. LEXIS 3870 (1st Cir. Mar. 5, 1997) (finding that reproduction is a major life activity); McWright v. Alexander, 982 F.2d 222, 226-27 (7th Cir. 1992) (noting that the definition of handicapped individuals under 29 C.F.R. § 1613.702(b)(1) includes those with physiological disorders affecting the reproductive system); Pa-courek v. Inland Steel Co., 858 F. Supp. 1393, 1404-05 (N.D. Ill. 1994) (holding that “reproduction can be a covered major life activity under the ADA”).

173 Zatarin, 881 F. Supp. at 243.

174 See, e.g., Doe v. Dolton Elementary Sch. Dist., No. 148, 694 F. Supp. 440, 444-5 (N.D.III. 1988); Thomas v. Atascadero Unified Sch. Dist., 662 F. Supp. 376, 379, 381 (D.C. Cal. 1987).

175 See Altman, Lawrence K., AIDS Meeting: Signs of Hope, and Obstacles, N.Y. Times, July 7, 1996, at A1.Google Scholar

176 See Hawkes, Nigel, New Drugs Cut Level of HIV, The Times, July 8, 1996,Google Scholar Home News Sec, at 6.

177 See Foster, David, New Drugs Turn Death to Life for HIV Patients, Hopes Begin to Rise as Protease Inhibitors Help Deter Disease, Chi. Trib., Dec. 11, 1996, at 8.Google Scholar

178 Lcland, John, The End of AIDS?, Newsweek, Dec. 2, 1996, at 64, 64.Google Scholar

179 See Randy Shilts, And the Band Played on 451 (1987).

180 See Sontag, supra note 1, at 70-71.

181 See FDA Approves AZT, 253 Science 1570 (1987).

182 See, e.g., EPSTEIN, STEVEN, Impure science: AIDS, Activism & The Politics of Knowledge 276-77 (1996).Google ScholarPubMed

183 See Fox, Daniel M., Chronic Disease and Disadvantage: The New Politics of HIV-Infection, 15 J. Health Pol., Pol’y & L. 341, 341 (1990)CrossRefGoogle ScholarPubMed; Heacock, Marian V. & Orvis, Gregory P., AIDS inthe Workplace: Public and Corporate Policy, 13 Harv. J.L. & Pub. Pol’y 689, 709 (1990).Google Scholar

184 See Sontag, supra note 1, at 26-27.

185 See Epstein, supra note 182, at 65.

186 Sontag points out that sexually transmitted diseases “always inspire fears of easy contagionand bizarre fantasies of transmission by nonvenercal means in public places.” Sontag, supra notel, at 27.

187 See id. at 54.

188 See, e.g., National Research Council, AIDS: The Second Decade 43-48 (1990).

189 See id.

190 Cf. Okie, Susan, Panel Asserts Politics Hurts AIDS Fight, Wash. Post, Feb. 14, 1997, at A1Google Scholar (reporting the National Institutes of Health panel’s conclusion that “[e]ducation and counseling programs that provide information about HIV and teach people . . . how to negotiate safer sex reducethe risk of HIV transmission in gay men”).

191 See National Research Council, supra note 188, at 292.

192 See id.

193 See National Commission on Acquired Immune Deficiency Syndrome, Americaliving with AIDS: Transforming Anger, Fear, and Indifference into Action 20 (1991)(describing purification of blood clotting factors leading to reduced risks for hemophiliacs)(hereinafter AIDS COMMISSION]; AIDS Epidemic Slowing, 1995 Figures Show, Am. Med. News, Nov. 11, 1996, at 8, 8Google Scholar (reporting a decline in pediatric AIDS).

194 862 F. Supp. 1310 (E.D. Pa. 1994).

195 See id. at 1318.

196 See id. at 1321.

197 Id. at 1318.

198 Id. at 1319.

199 See id. at 1320.

200 See supra text accompanying notes 133-35.

201 See Kohn, 862 F. Supp. at 1319-21.

202 See Culvahouse Memorandum, supra note 70.

203 See Kohn, 862 F. Supp. at 1320.

204 See id. at 1319.

205 Id.

206 See id. at 1321.

207 See id. at 1319-21.

208 Id. at 1323.

209 See id. at 1321.

210 Id. (quoting Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990)).

211 Id. at 1322.

212 See id.

213 Id.

214 The legislative history suggests a slightly different problem with using this prong of thedefinition of disability in cases of HIV infection. According to the Report of the Senate Committeeon Education and Labor, “[t]his provision is included in the definition in part to protect individualswho have recovered from a physical or mental impairment which previously substantially limitedthem in a major life activity.” S. Rep. No. 101-116, Pt. 2, at 52 (1990). This statement suggests thatthe drafters intended at least the primary beneficiaries of the prong to be individuals who had recovered from their condition. Because individuals who are infected with HIV have not been “cured” oftheir infection, even if their health has become substantially improved, the application of the “record” prong to them may be difficult.

215 See Kohn, 862 F. Supp. at 1322.

216 This was clearly the argument initially made by Leonard, sec supra text accompanying note 34, and carried forth by Justice Brennan’s dicta in School Board of Nassau County v. Arline, 480U.S. 273, 282-83(1987).

217 See Kohn, 862 F. Supp. at 1322 (citing 29 C.F.R. § 1630.2(k)).

218 See supra text accompanying notes 159-60.

219 SeeKohn, 862 F. Supp. at 1319-20.

220 See id. at 1321.

221 See id. at 1319-21.

222 See id. at 1319.

223 See id. at 1320.

224 53 F.3d 55 (4th Cir. 1995).

225 See id. at 56.

226 42 U.S.C. § 12112(b)(4) (1994).

227 See Ennis, 53 F.3d at 62.

228 See id. at 59. The Fourth Circuit may take up the issue again when it issues its en bancopinion in Runnebaum v. NationsBank of Md., 95 F.3d 1285 (4th Cir. 1996), vacated, reh’g granted,No. 94-2200, 1996 U.S. App. LEXIS 31164 (4th Cir. Dec. 3, 1996) (finding that bank is not entitledto summary judgment on an ADA claim brought by asymptomatic HIV-positive former bank employee who claims discriminatory discharge).

229 See supra text accompanying notes 144-49.’

230 See Ennis, 53 F.3d at 59.

231 See id. at 59-60.

232 See supra text accompanying notes 120-29.

233 See Ennis, 53 F.3d at 60.

234 See id.

235 Id.

236 Id.

237 See 29 C.F.R. § 1630.2(i) (1996).

238 See, e.g., Doe v. Montgomery Hosp., No. 95-3168, 1996 U.S. Dist. LEXIS 18965, at *13(E.D. Pa. Dec. 23, 1996); Abbott v. Bragdon, 912 F. Supp. 580, 586 (D. Me. 1995), aff’d, No. 96-1643, 1997 U.S. App. LEXIS 3870, at *8 (1st Cir. Mar. 5, 1997).

239 See 42 U.S.C. § 12102(2)(A) (1994).

240 See 29 C.F.R. § 1630.2(1)(b)(3). For a further discussion of the different ways in which anindividual can be “regarded as” having an impairment, see EEOC Compl. Man. (CCH) § 902.8, 6888 (Mar. 1995).

241 There is another possibility. The employer could have thought that the child’s impairmentwould have substantially limited the mother’s ability to work, because the mother would need timeoff, or be preoccupied with the child’s well-being. This, however, still would not establish the childas having a disability, and only if the child had the disability could the mother be protected becauseof her relationship with the child. See Ennis, 53 F.3d at 59. Any rights the mother has simply due toher needs to care for a child would be limited to those available under the Family and Medical LeaveAct, 29 U.S.C. §§ 2601-54 (1994), which does not require a determination that the child for whomthe parent is caring has a disability. See id. § 2613.

242 See Ennis, 53 F.3d at 60.

243 See Equal Employment Opportunity Comm’n v. Newport News Shipbuilding & DrydockCo., 949 F. Supp. 403, 407 n.5 (E.D. Va. 1996) (declining to reach the issue of whether the HIV-positive plaintiff had a disability, but stating that the answer is uncertain in light of Ennis’s holdingthat HIV is not a per se disability, and a “case-by-case determination of whether a given impairmentsubstantially limits a major life activity of the particular individual in question”).

244 AIDS Commission, supra note 193, at 115.

245 No. 96-1643, 1997 U.S. App. LEXIS 3870 (1st Cir. Mar. 5, 1997).

246 Title III of the ADA is the statute’s public accommodations title. See 42 U.S.C. § 12182(1994).

247 Abbott, 1997 U.S. App. LEXIS 3870, at *6-22. The court also analyzed at length whether adental patient infected with HIV posed a “direct threat” to the health and safety of the dentist. See id. at *22-43. In upholding the district court’s award of summary judgment on that account, thecourt of appeals determined that the defendant had not produced sufficient evidence to establish atriable issue of fact. See id. at *43. The court made clear, however, that the issue was a factual oneto be determined in light of the medical information available at the time of the treatment decision,and suggested that given different medical information, or a request for a more invasive dental procedure, the outcome could be different. See id. at *42-44.

248 See id. at *5.

249 After noting that the United States had asserted such a claim, the court stated that it did notneed to reach that issue due to its other findings. See id. at *7 n.2.

250 The court noted that the EEOC’s guidelines implementing Title III supported such a conclusion. See id. at *7-8 (citing 28 C.F.R. § 36.104 (1996)). The court also relied on “judicialauthority.” See id. at *8 (citing Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994); Doc v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990)).

251 See id.

252 See id.

253 Id. at *9.

254 See id. (citing Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996); Pa-courck v. Inland Steel Co., 916 F. Supp. 797, 804 (N.D. III. 1996); Erikson v. Board of Govs. ofState Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995); Zatarin v. WDSU-Tclevision, Inc., 881 F.Supp. 240, 243 (E.D. La. 1995); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990)).

255 Id. at *10-11.

256 See id at *20.

257 See id. at *17.

258 Id. at *18.

259 See id. at *18-20.

260 Id. at *21.

261 See id.

262 Id. at *18-19.

263 One other court already has adopted the “reproductive intentions” approach, albeit withoutAbbolt’s lengthy dissertation. See Doe v. Montgomery Hosp., No. 95-3168, 1996 U.S. Dist. LEXIS 18965, at *13—14 (E.D. Pa. Dec. 23, 1996) (finding an asymptomatic plaintiff disabled because “he has made a sworn verification stating that because of the likelihood of infection, he has in the pastand will continue to refrain from any attempts to procreate”).

264 Of course, some gay men might be able to claim that they would have desired to have abiological child through artificial insemination were it not for their infection. Others might be able to claim that they would have adopted a child and that their HIV status has caused them to changedtheir plans. But it is questionable whether the courts that have focused on reproduction would findthat limitations in parenting, as opposed to reproduction, count as limitations of a major life activity.It is also questionable how many HIV-positive gay men can make either claim truthfully. What the courts developing these doctrines do not consider is that it does not make any sense to say that an individual’s protection against workplace discrimination, or discrimination by public accommodations, such as dentists, schools, etc., should depend on what is in essence such a clearly unrelated matter. And, if as public health experts contend, a prohibition against discrimination is critical to efforts to control the epidemic, then it is a public policy folly of the first degree to say that the prohibition of discrimination will depend on whether gay men can show that a prior desire to have or to raise children was limited by their HIV infection.

265 The analysis leads to the absurd situation in which the legality of an act of discriminationhinges on the personal reproductive plans of the plaintiff about which an amployer would likely beunable.

266 See Abbolt, 1997 U.S. App. LEXIS 3870, at *21.

267 See id. at *31-33.

268 Id. at *44.

269 The court further emphasized the limited and narrow nature of its ruling in its final paragraph. “We therefore caution future courts not to read our words more broadly than the contextadmits; our decision today eschews a blanket rule and instead demands case-by-case inquiry into aservice provider’s responsibilities to treat HIV-positive patients.” Id. at *44.

270 See supra note 175 and accompanying text.

271 Forrisi, 794 F.2d at 931.

272 Compare Cook v. Rhode Island, 10 F.3d 17 (1st Cir. 1993) (finding, after an individualizedinquiry, that the plaintiffs obesity was a disability), with Tudyman v. United Airlines, 608 F. Supp.739 (CD. Cal. 1984) (finding that being over the maximum weight allowable for a flight attendant isnot a disability).

273 For a discussion of the backlash that has arisen against those who are perceived as “nottruly disabled,” see Pelka, Fred, Attack of the Morally Challenged, 5 On the Issues 36 (1996).Google Scholar

274 See Cortes v. McDonald’s Corp., No. 5-95-CV-H1, 1996 WL 772752 (E.D.N.C. Oct. 2,1996); Garcia v. Vinson & Elkins, No. H-94-1670 (S.D. Tex. Sept. 28, 1995).

275 Garcia, No. H-94-1670.

276 See id. at 2-4.

277 See id. The plaintiff apparently claimed discrimination not only on the basis of disability,but also on the basis of race and gender. See id. at 6. The court rejected all of his claims, finding infact that there was no discrimination, that the plaintiff himself had turned down offers for the position of permanent secretary, and that he was ultimately discharged due to a reduction in force applying to floaters, rather than due to any discriminatory reason. See id. at 6-9.

278 See id. at 1-2 (citing Ennis v. National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59(4th Cir. 1995)). The court’s cursory analysis was not critical to the ultimate outcome of the case.

279 See id. at 2-3.

280 See id. at 3. Of course, if the plaintiff had never been able to perform the duties of the job,this court, no doubt, would have found him not a “qualified individual with a disability” under 42U.S.C. § 12111(8) (1994), and therefore not entitled to protection.

281 See Garcia, No. H-94-1670, slip op. at 4.

282 See id. at 2.

283 The court did not consider, possibly because the issue was not raised, whether Garcia wassubstantially limited in the major life activity of reproduction.

284 No. 5-95-CV-H1, 1996 WL 772752 (E.D.N.C. Oct. 2, 1996).

285 See id. at *4.

286 See id.

287 Id. at *6.

288 Id.

289 See id. at *6.

290 Forrisi v. Bowen, 794 F.2d 931,935 (4th Cir. 1986).

291 Cortes, 1996 WL 772752, at *7.

292 See id at *6.

293 See id. at *4 (citing Ennis v. National Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 59(4th Cir. 1995)).

294 See Ennis, 53 F.3d at 59.

295 See id.

296 See Cortes, 1996 WL 772752, at *5. The court also claimed to be bound by the Fourth Circuit’s opinion in Runnebaum. See id. at 7 (citing Runnebaum v. NationsBank of Md., 95 F.3d 1285(4th Cir. 1996)). The opinion in Runnebaum, however, was later vacated. See 1996 U.S. App.LEXIS at 31164 (4th Cir. Dec. 3, 1996). Even had Runnebaum not been vacated, its use by theCortes court would remain dubious. Runnebaum found that the asymptomatic plaintiff in that casehad a disability under the “regarded as” prong. See Runnebaum, 95 F.3d at 1290. The opinion never discussed the impairment of reproduction. Its silence could hardly be taken as disapproval of the theory that reproduction was a major life activity because the plaintiff was found disabled under the “regarded as” prong. See id. at 1297. Thus, if the opinion was to be relied on, it should have been for the proposition that even under Ennis an asymptomatic plaintiff can establish a disability.

297 See generally Leonard 1, supra note 34 (describing how employment discrimination lawscould provide protection for persons infected with HIV).

298 See Burris, Scott, Dental Discrimination Against the HIV-infected: Empirical Data, Law,and Public Policy, 13 Yale J. on Reg. 1, 10-35 (1996).Google Scholar

299 See supra notes 133-35 and accompanying text.

300 See supra text accompanying notes 133-35.

301 See supra Part IV.A.

302 See supra text accompanying note 169-74.

303 See supra Pari V.B,

304 See Deeks et al., supra note 3, at 150-51.

305 See id.; Dunlop, David W., Hype, Hope and Hurt on the AIDS Front Lines, N.Y. Times, Feb.2, 1997, at E-3.Google Scholar

306 See Gostin, Lawrence O., The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law and Society, 54 Md. L. Rev. 1, 15-16 (1995).Google ScholarPubMed

307 See Deeks et at., supra note 3, at 151 (“Noncompliance with dosing regimens or frequent’drug holidays’ may result in an accelerated development of resistance.”).

308 Under COBRA, 29 U.S.C. §§ 1161-67 (1994), an individual who was formerly included in a group health plan may purchase “continuation coverage.” See id. §§ 1161-62. However, the employee may be required to pay up to 102% of the total premiums of such plan. See id. § 1162(3). This may be prohibitively expensive for an unemployed individual. Under the Health Insurance and Portability Act of 1996, a future insurer may be limited in its ability to apply a preexisting condition limitation on the individual. 29 U.S.C. § 1181 (Supp. 1996). However, this limitation does not totally prohibit such exclusions. Nor does the Act provide any assistance in the event the individual remains unemployed and unable to afford an individual plan.

309 See supra text accompanying notes 117-26.

310 See supra text accompanying notes 120-29. Although the Abott court made note of thelegislative history of the ADA, it did so as a “final observation,” having already reached the holdingthat Ms. Abbott was disabled based on an individualized assessment. See Abbott v. Bradgon, No.96-1643, 1997 U.S. App, LEXIS 3870, at *2I.

311 See supra text accompanying notes 120-29,

312 See 42 U.S.C. § 12102(2) (1994).

313 See Abbolt, 1997 U.S. App. LEXIS 3870, at *10-11.

314 See, e.g., Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1321 (E.D. Pa. 1994),

315 Abbott, 1997 U.S. App. LEXIS 3870, al *10.

316 See Leonard 1, supra note 34, at 691. But see supra text accompanying notes 166-69.

317 28 C.F.R. §36.104(1996).

318 See Kastor, supra note 7, at A-1.

319 See Robling, Kenneth C., Note, Negligent HIV Testing and False-Positive Plaintiffs: Pardoning the Traditional Prerequisites for Emotional Distress Recovery, 43 Clev. St. L. Rev. 655, 678-82 (1995)Google Scholar (discussing the depression, anxiety and “radical shifts” in life choices that often accompany an HIV diagnosis).

320 See S. Rep. No. 101-116, Pt. 2, at 52; EEOC Directives Transmittal § 920.5, 1995 DailyLab. Rep. (BNA) No. 51, at d30 (Mar. 16, 1995).

321 Zola, supra note 40, at 168.

322 See id

323 H.R. REP. NO. 101-485, pt. II, at 53 (1990).

324 See supra text accompanying notes 48-51.

325 See School Board of Nassau County v. Arline, 480 U.S. 273, 283 (1987).

326 See, e.g., Cortes v. McDonald’s Corp., No. 5-95-CV-H1, 1996 WL 772752, at *7 (E.D.N.C. Oct. 2, 1996) (“[W]hether or not this court believes that even asymptomatic HIV should be considered a disability is immaterial in that this court is bound by what it finds Fourth Circuit precedent to require.”).