Benjamin R. v. Orkin Exterminating Co.

390 S.E.2d 814, 182 W. Va. 615

• Court: West Virginia Supreme Court
• Decided: March 9, 1990
• Docket: 19277
• Status: Published

Opinions

McHUGH, Justice:

This case is before this Court upon a certified question from the United States District Court for the Northern District of West Virginia, pursuant to W.Va.Code, 51-1A-1 to 51-1A-12 [1976], the Uniform Certification of Questions of Law Act. The certified question involves whether a person who tests positive for the human immunodeficiency virus antibodies has a “handicap” within the meaning of the West Virginia Human Rights Act as effective prior to the 1989 amendment thereto. For the reasons discussed below, we answer in the affirmative.

I

Benjamin R., the plaintiff in the underlying action, commenced work in May, 1986, as a pest control inspector for the defendant, Orkin Exterminating Company, Inc.¹ In January, 1987, he tested “seropositive” in blood tests for the human immunodeficiency virus (“HIV”) antibodies, a clinical precursor to acquired immune deficiency syndrome (“AIDS”), the last phase of the incurable HIV disease. HIV is a suppression of the human body’s immune system, and the complications resulting from HIV are eventually fatal in virtually every case. The virus cannot survive outside of white blood cells; if exposed to the air it will die. HIV is communicable by certain types of contact but cannot be transmitted by casual contact. E.g., Leckelt v. Board of Commissioners of Hospital District No. 1, 714 F.Supp. 1377, 1380 (E.D.La.1989).²

The plaintiff told his supervisor about the HIV test results in July, 1987. The plaintiff claims he was discharged, in August, 1987, because he has HIV. The defendant claims the plaintiff voluntarily resigned from work to stay with relatives in South Carolina. Acting upon the plaintiff’s complaint of employment discrimination on the basis of a handicap, the West Virginia Human Rights Commission decided, pursuant to W.Va.Code, 5-ll-13(b) [1983], to issue to the plaintiff a notice of his right to sue in a state circuit court. The plaintiff thereafter brought an employment discrimination action against the defendant in the Circuit Court of Ohio County, West Virginia. The defendant, pursuant to federal law, removed the action to the United States District Court for the Northern District of West Virginia. After some discovery the defendant moved for summary judgment on the ground that the plaintiff, as a matter of West Virginia law, was not handicapped. The federal court, finding no controlling precedent decided by this Court, certified the following question to us:

Whether, as a matter of West Virginia law, a person who tests positive for the human immunodeficiency virus (HIV positive) is handicapped within the meaning of W.Va.Code § 5-ll-3(t)?

II

The West Virginia Human Rights Act, W.Va.Code, 5-11-1 to 5-11-19, as amended, contains a declaration of policy, the pertinent part of which is as follows: “It is the public policy of the state of West Virginia to provide all of its citizens equal opportunity for employment, ... Equal opportunity in the area[ ] of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... handicap.” W. Va.Code, 5-11-2 [1981].³ In furtherance of this policy W.Va.Code, 5-11-9 [1981] provides, in relevant part:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, ...

(a) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is ... handicapped[.]⁴

The term “discriminate” or the term “discrimination” means “to exclude from, or fail or refuse to extend to, a person equal opportunities because of ... [a] handicap[.]” W.Va.Code, 5-ll-3(h) [1981,1989].

The term “handicap” means “any physical or mental impairment which substantially limits one or more of an individual’s major life activities.” W.Va.Code, 5-11-3(t) [1981]. Therefore, the statutory definition of “handicap” at the time in question had two basic requirements: (1) a “physical or mental impairment” (2) which substantially limits one or more “major life activities.” ⁵

The West Virginia Human Rights Act, as effective at the time in question, did not define “physical or mental impairment” or “major life activities.” The rules of the West Virginia Human Rights Commission, based upon the federal regulations under the Federal Rehabilitation Act of 1973, as amended, do provide definitions of these terms.⁶

“Physical impairment” means “any physiological disorder or condition or cosmetic disfigurement or anatomical loss or abnormality affecting one or more of the following body systems: Neurological, musculo-skeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic [blood] and lymphatic.” 6 W.Va.Code of State Rules § 77-1-2.2 (1982) (emphasis added). Another definition provided is that a “physical or mental impairment”

includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, autism, multiple sclerosis, cancer, diabetes, heart disease, obesity, drug addiction, tobacco addiction and alcoholism. However, use or abuse of alcohol, tobacco or drugs in the absence of medically verifiable addiction does not constitute a ‘Physical or Mental Impairment.’

6 W.Va.Code of State Rules § 77-1-2.4 (1982) (emphasis added).

Finally, the term “major life activities” is defined in a noninclusive manner; it “includes [not “means”] communication, ambulation, self-care, socialization, learning, vocational training, employment, transportation and adapting to housing.” 6 W. Va. Code of State Rules § 77-1-2.5 (1982) (emphasis added).⁷

HIV, even during the asymptomatic phase (CDC Group II, see supra note 2), is a “physiological disorder ... affecting ... [the] hemic [blood] and lymphatic” body systems. 6 W.Va.Code of State Rules § 77-1-2.2 (1982). As Surgeon General Koop stated in a July 29, 1988 letter to the United States Department of Justice, the CDC Group II phase involves

subclinical manifestations^] i.e., impairments[,] and no visible signs of illness. The overwhelming majority of infected persons [in CDC Group II] exhibit detectable abnormalities of the immune sys-tem_

Accordingly, from a purely scientific perspective, persons with HIV infection are clearly impaired. They are not comparable to an immune carrier of a contagious disease such as Hepatitis B. Like a person in the early stages of cancer, they may appear outwardly healthy but are in fact seriously ill.

Our research discloses that the court in every reported case discussing the point has recognized that HIV, even during the asymptomatic phase, is an actual, physical impairment under a federal or state statute or regulation defining such an impairment in terms identical or similar to this state’s administrative rule quoted immediately above, namely, 6 W.Va.Code of State Rules § 77-1-2.2 (1982). See, e.g., Baxter v. City of Belleville, 720 F.Supp. 720, 725, 729 (S.D.Ill.1989) (immunological deterioration begins on first day of infection with HIV) (also could be a perceived handicap, that is, within third part of statutory definition of “handicap,” involving a person who is “regarded as” having such an impairment, see supra note 5, due to unfounded fear of contagion from casual contact); Leckelt v. Board of Commissioners of Hospital District No. 1, 714 F.Supp. 1377, 1385 & n. 4 (E.D.La.1989) (seropositivity

itself an impairment) (also could be a perceived handicap); Ray v. School District of DeSoto County, 666 F.Supp. 1524, 1529, 1536 (M.D.Fla.1987) (when HIV enters body it begins to attack certain white blood cells) (seropositive students granted preliminary injunction enabling them to remain in regular classroom); Thomas v. Atascadero Unified School District, 662 F.Supp. 376, 379, 381 (C.D.Cal.1987) (individuals in all four of CDC classifications suffer from impairments to their physical systems and are “handicapped"); Local 1812, American Federation of Government Employees v. United States Department of State, 662 F.Supp. 50, 54 (D.C.Cir.1987) (HIV-infected persons are physically impaired, due to measurable deficiencies in their immune systems, even where disease symptoms have not yet developed); Raytheon Co. v. Fair Employment & Housing Commission, 212 Cal.App.3d 1242, 1249, 261 Cal.Rptr. 197, 201 (1989) (HIV disease is a progressive immune system disease, and AIDS is end stage of this gradual immune system deterioration); Cronan v. New England Telephone Co., 41 Fair Empl. Prac.Cas. 1273, 1275, 1276 (Mass.Super.Ct.1986) (HIV within definition of physical impairment regardless of whether person is suffering any adverse physical effects) (also could be a perceived handicap); Doe v. Coughlin, 71 N.Y.2d 48, 57, 518 N.E.2d 536, 542, 523 N.Y.S.2d 782, 788 (1987) (once acquired, HIV undermines human body’s ability to combat infection, is incurable and is almost always fatal), cert. denied, 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988).⁸ See also Baxley, Rehabilitating AIDS-Based Employment Discrimination: HIV Infection as a Handicap Under the Vocational Rehabilitation Act of1973, 19 Seton Hall L.Rev. 23 (1989); Lally-Green, Is AIDS a Handicap Under the Rehabilitation Act of 1973 After School Board v. Arline and the Civil Rights Restoration Act of 1987?, 19 U.Tol. L.Rev. 603 (1988); Note, Asymptomatic Infection with the AIDS Virus as a Handicap Under the Rehabilitation Act of 1973, 88 Colum.L.Rev. 563 .(1988); Leonard, Employment Discrimination Against Persons with AIDS, 10 ILDayton L.Rev. 681 (1985). See generally, 3A A. Larson & L. Larson, Employment Discrimination § 108A.21 (1988); 3 C. Sullivan, M. Zimmer & R. Richards, Employment Discrimination § 25.2.1, § 25.2.4, at 14 (2d ed. 1988 & Supp.1989); A. Ruzicho, L. Jacobs & L. Thrasher, Employment Discrimination Litigation § 4.07, at 222 (1989); L. Roth-stein, Rights of Physically Handicapped Persons § 4.03, at 93-95 (Supp.1990); M. Player, Employment Discrimination Law § 7.09, at 595 (1988).

Asymptomatic infection with HIV is not only a physical impairment but such impairment “substantially limits one or more of an individual’s major life activities.” W.Va.Code, 5-ll-3(t) [1981].⁹ As stated previously, the term “major life activities” includes “socialization[.]” 6 W.Va.Code of State Rules § 77-1-2.5 (1982). The record here indicates that medical experts have found almost all HIV patients to be severely withdrawn and depressed, often suicidal, virtually throughout the course of the disease, in light of, inter alia, the fatal nature of the complications resulting from the disease. HIV thus has an inherent propensity to interfere with the HIV patient’s “socialization,” independent of the perceptions of others. Cf. Consolidated Freightways, Inc. v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 527-28 (Iowa 1985) (chronic alcoholism a “disability,” defined as a physical or mental condition having an inherent propensity to limit one or more of an individual’s major life activities, independent of perceptions of others, as chronic alcoholism results in substantial interference with an individual’s ability to function socially or economically in community).¹⁰

We find unpersuasive the very recent opinion of the North Carolina Supreme Court in Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990). There the court held that asymptomatic infection with HIV does not limit one or more major life activities. The court believed it was significant that the state statutory definition of “major life activities” was identical to the federal regulations’ definition of that term, with the sole exception that the state definition did not include the word “working,” indicating to the court that “working” was not a major life activity under the state statute. The court also believed that the ability to bear a healthy child and the ability to engage in sexual relationships were not major life activities because in the court’s view those two activities are not essential tasks one must perform on a regular basis in order to carry on a normal existence. In addition, the court observed that the state statute contained an explicit exception from coverage for communicable diseases. Finally, the court noted that antidiscrimination legislation explicitly applicable to persons with HIV was enacted after the Burgess case arose.

As discussed above, asymptomatic infection with HIV substantially limits the major life activity of “socialization,” which is included within this state’s definition of “major life activities.” Moreover, this state’s definition of “physical or mental impairment” , includes “diseases,” without excluding communicable diseases. Finally, no antidiscrimination legislation explicitly applicable to persons with HIV has been recently enacted in this state; therefore, we cannot infer that the legislature meant to exclude persons with HIV from the existing “handicap” provisions of the West Virginia Human Rights Act.

An important public health concern is implicated by the certified question in this case. About ninety percent of HIV-infected individuals are at a given time asymptomatic. Unless they are tested for the disease and disclose their status, it is impossible to know whether such individuals have HIV and are capable of spreading the disease through the limited means stated in note 2 supra. HIV-infected individuals are hesitant to have an HIV antibody test performed because, inter alia, they are concerned about discrimination in employment and other matters should they test positive and should the test results be disclosed. Including asymptomatic infection with HIV under the definition of a person with a “handicap” encourages early testing for the disease and disclosure of the test results. From a public health standpoint, it is crucial for people at all stages of HIV infection to be assured of legal protection from unlawful discrimination. See School Board v. Arline, 480 U.S. 273, 286 n. 15, 107 S.Ct. 1123, 1130 n. 15, 94 L.Ed.2d 307, 320 n. 15 (1987); Jasperson v. Jessica’s Nail Clinic, 216 Cal.App.3d 1099, 1111-12, 265 Cal.Rptr. 301, 308 (1989).

In view of the foregoing this Court holds that a person at any stage of infection with the human immunodeficiency virus, including a person who has tested positive for the antibodies to such virus but who is asymptomatic, is a person with a “handicap” within the meaning of W.Va.Code, 5-11-3(t) [1981].¹¹

Accordingly, the certified question is answered in the affirmative.

Having answered the certified question, we dismiss this case from the docket of this Court.

Certified question answered; case dismissed.

1 . Consistent with our practice in cases involving sensitive matters, we use the plaintiffs last initial rather than his last name. See In re Jonathan P., 182 W.Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989) (citing cases).

2 . The medical evidence in the record, such as the 1988 reports of the Surgeon General and of the Presidential Commission on HIV, indicate the following basic facts about HIV.

HIV kills certain white blood cells, T-lymphocytes, and in so doing, effectively cripples the body’s ability to ward off other diseases. The Centers for Disease Control ("CDC”) of the United States Department of Health and Human Services have classified HIV-infected persons in four groups based upon the character of their symptoms. CDC Group I consists of persons with transient, mononucleosis-like symptoms (swollen lymph glands, fatigue, fever).

Persons in CDC Group II, formerly referred to as asymptomatic carriers, do not suffer debilitating symptoms, but already have abnormalities in their hemic (blood) and lymphatic systems and are capable of infecting others. After the temporary CDC Group I phase, the average time between infection and obvious, chronic symptoms, that is, the average time for the asymptomatic CDC Group II phase, is several years. The plaintiff here falls within the CDC Group II classification.

CDC Group III consists of HIV-infected persons with serious but not life-threatening symptoms, such as persistent swollen lymph nodes. This phase is also called PGL, persistent generalized lymphadenopathy.

CDC Group IV comprises HIV-infected persons with clinical manifestations and includes several subgroups, with indications ranging from at least two chronic physical symptoms such as PGL and weight loss or persistent fever or fatigue (CDC Group IV-A), also referred to as AIDS Related Complex (ARC), to neurological manifestations (CDC Group IV-B), to end-stage or “full-blown” AIDS (CDC Groups IV-C to IVE), in which the HIV virtually destroys the immune system, leaving the infected individual vulnerable to various so-called “opportunistic” diseases, which eventually cause death. Two common types of opportunistic diseases associated with HIV infections are pneumocystis car-nii pneumonia (PCP) and a form of skin cancer known as Karposi's sarcoma. Once a person is diagnosed as having “full-blown" AIDS, that person’s life expectancy is generally about two years. There is neither a preventive medicine nor a cure for HIV.

HIV is spread primarily in two ways: (1) through sexual contact, homosexual or heterosexual, with an infected person (HIV was detected first in homosexual males) and (2) through the sharing of syringes used for injecting drugs intravenously. To a lesser extent HIV can be spread through blood transfusions and from mother to child in the womb (and possibly through breast milk).

Significantly, as mentioned in the text, HIV is not transmitted through casual contact in the workplace or in the home. For example, there is no evidence of transmission of HIV through sharing of food, cups, towels, razors, toothbrushes, or through kissing. (Health care workers must take special precautions, due to the risk of being stuck with needles containing HIV-contaminated blood and due to the risk of other "invasive” contact with the virus.)

See, e.g., Baxley, Rehabilitating AIDS-Based Employment Discrimination: HIV Infection as a Handicap Under the Vocational Rehabilitation Act of 1973, 19 Seton Hall L.Rev. 23, 27-32 (1989) (citing medical studies).

3 . W. Va. Code, 5-11-2 was amended in 1989, after the operative facts in this case, but the relevant portion of this statute, quoted in the text, was not changed.

4 . W.Va.Code, 5-11-9 was amended in 1989, after the operative facts in this case, but the relevant portion of this statute, quoted in the text, was not substantively changed.

5 . The 1989 amendment to W.Va.Code, 5 — 11—3(t), effective after the operative facts in this case, is not applicable here. As indicated in note 10 of Chico Dairy Co. v. West Virginia Human Rights Commission, 181 W.Va. 238, 248, 382 S.E.2d 75, 85 (1989), the West Virginia statutory definition of "handicap," W. Va.Code, 5-ll-3(t), is now identical to the tripartite federal statutory definition set forth in 29 U.S.C. § 706(8)(B) (1988). The federal statute defines an "individual with handicaps,” for purposes of the Federal Rehabilitation Act of 1973, as amended, to mean any person who “(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”

6 . The Federal Rehabilitation Act of 1973, as amended, is codified as 29 U.S.C. §§ 701-796Í (1988).

7 . The 1989 amendment to W.Va.Code, 5-ll-3(t), the state statutory definition of "handicap,” added, inter alia, a noninclusive definition of the term “major life activities”; that term "includes [not "means"] functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working[.]” W.Va.Code, 5-ll-3(t)(l) [1989]. The state statute still does not define “physical or mental impairment^]”

8 . The Supreme Court of the United States in School Board v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), held that a person with a contagious disease, in that case, tuberculosis, may also be a "handicapped individual” under the Federal Rehabilitation Act of 1973, as amended. The court expressly did not reach the question of whether a person with HIV, but currently asymptomatic, is a person with a "handicap.” Id. at 282 n. 7, 107 S.Ct. at 1128 n. 7, 94 L.Ed.2d at 317 n. 7.

9 . See supra note 5.

10 . We need not decide whether asymptomatic infection with HIV substantially limits other purported major life activities, such as procreation, "intimate personal relations” or the ability to resist infections, as argued by the plaintiff and by amici curiae, the Charleston Aids Network et al.

11 . We note that there are two matters which are not before us in this case. First, there is a factual dispute in the underlying action as to whether the defendant discharged the plaintiff because he has HIV. Second, there is no issue before us as to what "reasonable accommodations” by the employer would protect the health of the HIV-infected individual, of other employees or of the public. See Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W.Va. 260, 264-265, 376 S.E.2d 154, 159-60 (1988).