HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/BENJAMIN.ASC

Text File | 1993-01-14 | 54KB | 1,032 lines

/* This case is reported in 390 S.E.2d 814 (W.Va. 1990).  The
West Virginia Court finds that HIV infection is a form of
disability, triggering the protection of the West Virginia Human
Rights Act. */

BENJAMIN R.

v.

ORKIN EXTERMINATING COMPANY, INC.

Supreme Court of Appeals of West Virginia.

March 8, 1990.

Concurring Opinion March 9, 1990.



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.

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.  [footnote 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). [footnote 2]

The plaintiff told his supervisor about the HIV test 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, 5-11-
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 Section 5-11-3(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].[footnote 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[.] [footnote 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, 5-11-
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, 511-3(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."
[footnote 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. [footnote 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).
[footnote 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
system....

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  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, -- U.S. -- ,109 S.Ct. 196,102 L.Ed.2d 166 (1988).
[footnote 8] See also Baxley, Rehabilitating AIDS-Based
Employment Discrimination: HIV infection as a Handicap Under the
Vocational Rehabilitation Act of 1973,19 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 Res
toration 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
U.Dayton 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. Rothstein, 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, 5-11-3(t)
[1981]. [footnote 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 perception" of others.  Cf
Consolidated Freightways, Inc. v. Cedar Rapids Civil Rights Com
mission, 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).  [footnote 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 per-formed 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);
Jasperton 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] [footnote 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.



NEELY, Chief Justice, concurring:

I concur with the majority in this case that acquired
immunodeficiency syndrome (AIDS) is a handicap.  The more
difficult questions, however, are what type of "reasonable
accommodations" must be extended to human immunodeficiency virus
(HIV) positive job applicants and employees, and whether under
any circumstances these HIV-positive subjects tire "otherwise
qualified" for employment.  As footnote 11 of the majority
opinion expressly states, these issues have not been considered
by the majority in this case.  In my estimation, however, the
issue framed by the U.S. District Court is so abstract that it is
like the sound of one hand clapping; an answer to the question as
framed, without elaboration, is likely to be misleading to the Hu
man Rights Commission and the courts.

If, indeed, AIDS is a handicap, but no amount of "reasonable
accommodation" will succeed in protecting other workers and
customers from infection, then the whole exercise of determining
handicap becomes a waste of time.  In that event the plaintiff
gets a right without a remedy. This was probably the effect of
School Board of Nassau County, Florida v. Arline, 480 U.S. 213,
107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), where the U.S. Supreme
Court said:

A person who poses a significant risk of communicating an
infectious disease to others in the work place will not be
otherwise qualified for his or her job if reasonable
accommodation will not eliminate that risk.

Id. at 287, n. 16,107 S.Ct. at 1131, n. 16.



I.

Initially, it is important to point out that AIDS is not properly
a moral issue, a political issue, or a religious issue: AIDS is a
public health issue. Although the majority opinion cites legal
literature concerning the public health implications of
mainstreaming HIV-positive subjects, I believe that the majority
opinion  is  inadequately  persuasive. The public health
dimensions of this important issue are too lightly touched upon
by reference to legal literature be cause the issue of contagion
cannot be as simply dismissed as the majority would imply.

At the center of the public health issue is an understandable
tension between the average American's urge toward compassion and
the average American's understanding of lifeboat ethics. If there
are twenty people in a lifeboat, and the likelihood is fifty
percent that an additional person will capsize the boat, acting
compassionately is logically foreclosed. On the other hand, if
the likelihood of capsize with an additional person is but one in
a thousand, then almost everyone would welcome an additional
stranded swimmer into the boat.

Explained another way, the considerations that inform the average
American's understanding of AIDS are the same considerations that
inform the average American's  understanding of nuclear power.
Ironically, if one analyzes the opinions of different
socioeconomic  and  political groups through the national
publications those groups support-The New Republic, The National
Review, The New York Review of Books, Commentary, The Atlantic
Monthly, and The Public Interest-it appears that many groups that
most strongly advocate the mainstreaming of HIV-positive subjects
(AIDS patients) frequently oppose nuclear power, while many
groups that advocate nuclear power urge the quarantine of HIV-
positive subjects.

This observation, rough as the head count may be, simply
demonstrates that the way the average American feels about HIV-
positive subjects is likely to be informed by how he feels about
homosexuals, IV drug users, prostitutes, and promiscuous persons-
the groups in society that have the highest statistical risk of
becoming HIV-positive. Similarly, how the average American feels
about nuclear power is likely to be informed by how he feels
about big corporations, the equity of passive income from stock
ownership, and the desirability of a technologically simpler
America.

Although nuclear power may be far from this case, I introduce the
subject to demonstrate that reluctance to accept mainstreaming of
HIV-positive subjects is not just a simple matter of irrational
hatred of homosexuals, high-risk minorities, prostitutes or drug
users. Just how easy it is to fear the unknown, and just how
little faith the average person has in the opinions of experts,
are prominent features of both the AIDS and the nuclear power
debate.

Thus, regardless of what the Centers for Disease Control say
about the extraordinarily specific and quite limited ways in
which AIDS can be transmitted, and regardless of what physicists
at M.I.T. or the Nuclear Regulatory Commission say about the
safety of our new generation of nuclear power plants, the average
American is disinclined to take even a vanishingly small chance
of dying the horrible death of AIDS or being incinerated in a
nuclear explosion. At heart, the average person thinks about all
probability of accident in roughly the same light: Differences
between probability of accident of 10 -3 (one in a thousand) and
probability of accident of 10 -7  (one in ten million) are all
the same.  But, of course, they're not.

After a careful review of the literature, much of which is cited
below, I have concluded that there is such a small chance of
contracting AIDS from the normal, casual contact of the workplace
or the school that the possibility of such transmission in the
course of protracted, casual contact is of  an order of magnitude
no higher than between 10 -5 and 10 -6  (one in one hundred-
thousand and one in a million). However, this is not a conclusion
that easily impresses itself upon  the  average  well-read
American. Specifically, two factors are likely to make the
average American fearful: First, because AIDS is a political
issue, it is not beyond possibility that official U.S Government
information is slanted and not entirely accurate. [footnote 1]
Second, individual studies of the mechanics of HIV transmission
necessarily involve small samples over short periods [footnote
2]; therefore, these studies cannot individually exclude the
possibility of transmission by casual contact (i.e., accidental
spitting;  use  of unwashed  silverware, plates and cups; urine
in public lavatories; touching, etc.) to a greater extent than
some order of magnitude between 10 -3 and 10 -4 (i.e., one in a
thousand and one in ten thousand.)

When, therefore, we are talking about an occurrence whose outcome
is always a horrible death, probabilities of error of 10 -3 (or
even 10 -4) are not odds that any of us would take without a very
good reason (such as one of our own children contracting AIDS).
Few of us would fly if the probability of crashing were 10 -4.
However, we all do fly, at least occasionally, because the
probability of crashing is between 10 -5 and 10 -6 (one in a
hundred thousand and one in a million.) Thus the purpose of this
concurrence is to recognize and discuss the entirely rational
fears of the general public in an effort to justify today's
decision in terms that satisfy those who are legitimately fearful
that the legal conclusions we reach are not justified by science.



II.

The anxiety of the average American about transmission of AIDS
through casual contact is prompted by language such as this from
the April 1987 Harvard Medical School Health Letter:

In the United States, studies of house hold contacts have not
found any evidence of transmission [by casual contact].  There
have been some possible cases in babies, but infection during
pregnancy or birth has been the probable route of infection.
Although there's a remote theoretical possibility that insects
could transmit the disease, no evidence indicates this is a real
route of spread.  [emphasis added]

Or, the following conclusions about probable error in a study of
AIDS published 29 October 1987 in The New England Journal of
Medicine:

Of the more than 30,000 cases of AIDS in the United States
reported to the Centers for Disease Control by February 1987,
none have occurred in family members of patients with AIDS,
unless members have had other recognized risk-related behavior.
More direct and precise risk information can be derived from a
number of studies in which nearly 500 family members of patients
with AIDS were evaluated for evidence of infection. [footnotes
and tables omitted] The index patients with AIDS have included
intravenous drug abusers, homosexual and bisexual men, recipients
of blood transfusions, persons with hemophilia, and others. These
studies failed to demonstrate a single HIV infection among
household members who did not have additional exposure to HIV
infection through blood, sexual activity, or perinatal
transmission. Combining these negative studies reveals an upper
95 percent confidence limit for risk of 0.64% percent. ...
[footnote 3] [emphasis added]

This N.E.J.M. report presents us with a probability of error of
6.4 in 1,000, (with a 5 percent chance that that probable error
is inaccurate) or a probability of error between 10 -2 and 10 -3.

Finally, it is instructive to read paragraph 2-16(2) from Army
Regulation 600-110, entitled "Identification, Surveillance, and
Administration of Personnel Infected with  Human
Immunodeficiency  Virus (HIV)":

Casual contact poses negligible risk of transmission.  HIV
infection has been shown  to  be  primarily  transmitted through
three routes:  intimate sexual exposure; perinatal exposure (from
infected mothers to their infants); and parenteral exposure
(transfusion of contaminated blood or sharing of needles by
intravenous drug abusers). Since the virus has been isolated from
various body fluids (to include blood, semen, saliva, tears, and
breast milk), personal items such as toothbrushes, razors, and
other personal implements that could become contaminated with
blood or other fluids should not be shared with others, even
though the risk appears low. [footnote 4]  [emphasis added]

Consequently, if an average, well-read American were to read the
material I have just cited without consulting all studies
together, he or she would be reluctant to conclude that
scientists have definitely excluded the possibility of
transmission by casual contact to such a degree of certainty that
a person could confidently bet his life on those scientists'
findings. Thus, at the end of the day we are not just concerned
with the known probability that HIV can be transmitted by casual
contact, but also with the probability that there is something
about the HIV transmission mechanism of which we are utterly
ignorant.



III.

However, what persuasively shows (from a public health point of
view) that mainstreaming HIV-positive subjects is appropriate is
that all of the studies taken together demonstrate that the
likelihood that there is something about the mechanism of HIV
transmission of which we are ignorant is vanishingly small.  In
other words, although the individual studies do not exclude the
possibility of transmission by casual contact to a degree of
certainty that would give us abiding confidence in any individual
study's conclusions, all studies taken together give us, in
effect, a "mega study" upon whose results we can confidently
rely. Thus, it is correct to say that having an HIV-positive
subject prepare food, work alongside of an uninfected person, or
attend school with uninfected children, presents a possibility no
greater than between 10 -5 and 10 -6 (i.e., one in a hundred
thousand and one in a million) of transmission of the disease
unless there is a direct exchange of blood, or perhaps a large
exchange of other body fluids such as saliva.

Furthermore, to put the rest of the discussion that follows into
perspective, it makes absolutely no difference from a public
health point of view whether we avoid (or even quarantine) those
comparatively few people who have already been diagnosed HIV-
positive.  We are already surrounded by HIV-positive subjects who
do not themselves know that they carry the virus.  By isolating,
shunning and avoiding HIV-positive subjects, as the majority
opinion clearly points out, we merely introduce an element of
humiliation into the otherwise burdened lives of the infected and
at the same time increase rather than decrease the likelihood of
deadly exposure to ourselves and our families.

This last conclusion comes from the fact that ostracizing HIV-
positive subjects discourages people from being tested. Yet it is
the knowledge that proceeds from test results that prompts people
to take necessary precautions to protect their sexual partners
and others, like doctors, who might come in contact with their
blood. Indeed, mathematical models developed by public health
researchers conclusively demonstrate that for every diagnosed
case of AIDS in the United States, there are at least sixteen
(and, perhaps, as many as twenty-two)  HIV-positive  subjects
who have not been diagnosed and do not know that they carry the
virus themselves. [footnote 5] This means that there are at least
three and a half million undiagnosed HIV carriers in the general
population, and perhaps as many as five million.

Therefore, we have all had our food cooked by HIV-positive
subjects, had our hair cut and permed by them, been served by
them in restaurants, had them in our houses as repairmen, and
been coughed and spat upon by them in buses, trains, airplanes,
hospital waiting rooms, and the line at the Department of Motor
Vehicles. Yet unless we are: (1) practicing homosexuals; (2) IV
drug users; (3) indulgers in unprotected casual sex; (4)
prostitutes or their customers; (5) hemophiliacs or other
recipients of bad blood; or (6) children of HIV-positive mothers,
we are not HIV-positive ourselves.



IV.

There is an urgent public health need to have as many persons as
possible tested for the HIV virus so that HIV-positive subjects
can protect others.  The evidence is overwhelming  that,  while
homosexuals have significantly altered their sex practices to
reduce dramatically the transmission of HIV, heterosexuals have
not. Although the risk of HIV transmission through heterosexual
intercourse (except anal inter-course) is much lower than in
male, homosexual intercourse, transmission by heterosexual
intercourse is nonetheless wide spread.  In Africa, in fact,
heterosexual transmission through normal vaginal intercourse has
probably been the most prominent way m which the disease has
spread. [footnote 6] Definite conclusions concerning whether this
experience can be repeated in the United States have not been
reached.  It appears that heterosexual transmission is related to
"other risk factors" but the specifics of these other factors are
not yet entirely understood.

Adolescents and adults still continue to engage in casual
heterosexual coupling without the protection of condoms.  In a
simple model in which each partner en-gages in sex with but three
different persons a year, the routes of transmission can be seen
to multiply exponentially from the person with whom one is
sleeping and whom one thinks one knows, to countless others whom
one does not know. When we begin thinking about "reasonable accom
modation" requirements, we must constantly bear in mind that,
counter-intuitive though it might at first appear, the world will
be a much safer place if HIV-positive subjects are not fired when
news of their infection reaches employers and coworkers.

During the first two to seven years (depending on other risk
factors) of HIV infection, those infected demonstrate no obvious
symptoms of the disease.  Thereafter, when AIDS related complex
(ARC) and full-blown AIDS become manifest, the subjects become
too sick to work anyway.  In these stages of the disease, AIDS
patients are in far greater jeopardy from the uninfected
population than the uninfected population are from them. A common
cold can kill a person with full-blown AIDS. Therefore, when we
talk of handicapped status protection for those diagnosed HIV-
positive, we are not concerned with persons who are deathly ill
(because they are not "otherwise qualified"), but rather with
asymptomatic persons (or persons with mild ARC) who, for many
years, can work quite normally.



V.

From a careful review of the applicable literature, it is
possible to reach some conclusions concerning how the HIV virus
is transmitted and how it is not transmitted?

These conclusions, in turn, should instruct our understanding of
the dimensions of "reasonable accommodation" in the workplace and
the school.

HIV is transmitted primarily through sexual contact or through
exposure to blood injected directly into the body, either by
contaminated needles or by contaminated blood products, but not
by "casual contact"  A few cases are acquired by newborn babies
during passage through the birth canal of an infected mother.  By
definition, casual contact does not include sexual contact or
contact with contaminated needles. Also, by definition, "casual
contact" does not include contact with blood such as might occur
in a health care setting.  However, "casual contact" does include
contact with saliva in the form of spit or droplets of saliva
that might spray forth from the mouth during ordinary speech,
contact with tears, and even contact with urine.  Ordinarily,
contact with urine is unusual except amongst young children in a
day care setting.

The largest study of persons exposed to saliva involved 1,309
dental professionals. It included 1,131 dentists, 131 hygienists
and 46 assistants. All practice in the New York City area, where
the HIV virus is prevalent.  Ninety-four percent reported
accidentally puncturing their skin with instruments used in
treating patients.  Most had several such skin punctures, and 21
percent had positive hepatitis B antibodies. This is an extremely
high rate for hepatitis B and indicates the strong likelihood
that these dentists and assistants had acquired hepatitis from
contact with their patients' saliva and blood.  Evidence of HIV
virus transmission by saliva could be found in only one case.
The dentist involved frequently  practiced without gloves  even
though he often had obvious breaks in his skin.  Furthermore, he
estimated that he had received two accidental, through-the-skin
punctures while working in patients' mouths within the previous
year and ten within the past five years.

Yet even with the 21 percent rate of probable hepatitis B
acquisition from their patients, only the one dentist mentioned
above became positive for HIV in this study.  Further studies of
oral to oral and oral to genital sexual contact are difficult to
evaluate because of the usual presence of other forms of sexual
contact that are high risk behaviors.  However, several studies
have found that kissing and insertive oral-genital contact are
not independent risk factors for HIV infection.

Finally, of sixteen known persons bitten by HIV-positive subjects
who had been studied up to the end of 1989, none had become
infected with HIV. And of a total of 113 health care workers in
the hospital setting who were exposed to the saliva of HIV-
positive subjects, none became positive himself.  Many of the
workers had open wounds or actual injections of saliva beneath
the skin.

Of 76 health care workers who worked with the urine of HIV-
infected persons none had acquired HIV. Also, there is no
evidence that HIV-infected babies transmit HIV virus to other
children or adults who have close contact with them.  In this set
ting the contact materials would include primarily urine and
feces, but also saliva to some extent.  Yet in no case has there
been evidence of transmission to other children or adults even
from the preschool age or from neurologically handicapped chil
dren who require intensive care that involves close physical
contact with urine and feces. As with saliva and tears, the risk
of HIV transmission from urine, while theoretically possible, is
clinically unsubstantiated.

Finally, studies of American Protestant missionaries in Africa,
where HIV-like infections may have been endemic since the late
1950's, demonstrate that missionary staff and their families were
not at high risk of HIV infection between 1967 and 1984, even
when serving in regions of high HIV endemicity.  These findings,
which support the conclusion that HIV is not transmitted by
insects, is born out by the American experience. Five to fifteen-
year-old children constitute 16 percent of our population and
have the greatest exposure to insects; however, as of January
1987, subjects in this age group accounted for only 0.2 percent
of all AIDS cases.  After removing the 98 percent of these AIDS
cases that are known to have established risk factors, we are
left with at most a .004 percent incidence of AIDS in this age
group for which we cannot directly account. Data from indigenous
African populations confirm low incidence of the disease in
children.



VI.

However, it is one thing to conclude that, in the absence of a
freak accident resulting in an unintentional exchange of blood,
it is nearly impossible to contract HIV by casual contact, and
quite another to determine the legal dimensions of the obligation
of "reasonable accommodation" in the face of widespread fears.
This, then, brings us to an inquiry concerning what law is all
about.  As Plato pointed out in The Laws, law is not just a set
of mechanistic, pragmatic rules; rather, law is a process of
instructing society in a moral and ethical vision.  Therefore, in
this case we should do two things: First, we should unequivocally
articulate the scientific, public health and  moral  case  for
nondiscrimination against HIV-positive subjects; and second, we
should also be compassionate and understanding concerning the
fears of the general public about possible life threatening
infection from a freak accident, casual contact, or that 10-5 to
10-6 probability that we don't entirely understand the etiology
of the disease. [footnote 8]

If there were ever an appropriate place for the conciliation and
mediation services of the Human Rights Commission, it is in
employment discrimination cases involving HIV-positive subjects.
This is because: (1) understanding the mechanism of AIDS
transmission is difficult; (2) many of the public health
considerations implicated in AIDS are counter-intuitive; and, (3)
AIDS has become such a contentious political issue that employers
and the public are likely to believe that the government
(including the courts) are lying to them. Therefore, I believe
that it is important to outline here some of the practical
considerations that should instruct the commission's decisions
about what is a "reasonable accommodation."  Indeed, when we are
talking about a phenomenon as frightening as AIDS, two factors
must be taken into account: First, the employer's own attitude
about HIV positive subjects; and second, the employer's other
employees' and customers' attitudes about HIV-positive subjects,
both of which are beyond the employer's control.

It is one thing to require the telephone company to hire HIV-
positive telephone operators and bookkeepers, and quite another
to require a Holiday Inn or local fast food restaurant to hire
HIV-positive food handlers.  As irrational as it might be scien
tifically, widespread rumor that a restaurant hires cooks with
AIDS would have disastrous consequences for business, and because
the public's fear is beyond the employer's control, it is
difficult to envisage an available "reasonable accommodation."

Finally, it should be obvious that employees who demonstrate
progressive clinical illness or symptomatic immunological defi
ciency are not "otherwise qualified" for continued employment.
[footnote 9]  This result has potentially shocking implications
for our system of health insurance: If an employee is
involuntarily separated from employment because of clinical AIDS,
does he or she then lose health insurance protection? I would
think that as a matter of public policy the answer should be
"no," and group health policies should contemplate this
eventuality. But that is an issue to be addressed by the
legislature and the insurance commissioner.  In light of the de
mands that will be made on our national health care system in the
coming years to care for AIDS patients, however, all group health
policies  should contemplate the roughly three to five million
undiagnosed HIV-positive subjects currently in the general
population and provide for continued health insurance upon
involuntary separation from employment.  This, in turn, will
remove the incentive to stretch or manipulate, from
considerations of compassion, the legal definition of "otherwise
qualified" (i.e. "bona fide occupational qualification," WVaCode,
5-11-9 [1987]) to include those who are really too sick to work,
but who need continued health insurance.

Indeed, it is difficult adequately to distill from the dry,
clinical literature the degree of suffering that symptomatic AIDS
patients endure.  Physically, they develop multiple, unusual
infections that require treatment for the rest of their lives.
In many cases, the treatment itself is highly toxic, adding to
their suffering even more. They become emaciated, and some
develop the lesions and physical disfigurement of Kaposi's
sarcoma.  Dementia can occur, and the frustrations of being
unable to think and speak clearly can become overwhelming.
Finally, and what is most to the point in this case, the
emotional pain is equally intense.  In some cases the patients
are disowned by their families at a time when they need help the
most.  They lose their jobs along with their insurance and are
left destitute, helpless in the face  of the stigma of the
disease and treated everywhere as lepers.

Yet the ostracism that even HIV-positive subjects face is
entirely necessary, and the misery associated with such ostracism
is needless suffering.  At the heart of this conclusion is the
fact, discussed supra, that for every diagnosed HIV-positive
subject, there are (according to the mathematical models) at
least sixteen undiagnosed cases. [footnote 10] If, then, we are
already in day-to-day contact with HIV-positive subjects whose
condition is unknown to us, does it not make sense to continue
day-today contact with the HIV-positive subjects whom we know and
to whom we already have ties of friendship and affection? The
answer to that question is obviously "yes," and it is that logic
which instructs my understanding of what the law on this matter
should be.



FOOTNOTES:

1.   Consistent with or practice in cases involving sensitive
matters, we use the plaintiff's last initial rather than his last
name.  See In re Joanatha P., -- W.Va. --, -- 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 IV-E), 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 associ
ated with HIV infections are pneumocystis carinii 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 as 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 as 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, -- W.Va.Code --, --, 382 S.E.2d 75, 85 (1989),
the West Virginia statutory definition of "handicap," W.Va.Code 5-
11-3(t), is now identical to the tripartite federal statutory
definition set forth in 29 USC  7O6(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
reed as having such an impairment.

6.   The Federal Rehabilitation Act of 1973, as amended. is
codified as 29 USC  70l-796i (1988).

7.   The 1989 amendment to W VaCode 5-11-3(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[.]"  WVa.Code 5-11-
3(t)(1) [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 US 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), held
that a person with a contagious disease, in that case, tubercu
losis, 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, -- W.Va. --, 376 S.E.2d 154,
159-60 (1988).



CONCURRING FOOTNOTES:

1.   It is for this reason that I have consulted studies
conducted  in  Europe, particularly France, where different
politics apply.

2.   See, for example, the study by Sally Bruce Turner and her
colleagues at the Harvard School of Public Health concerning
embalmers, who are often exposed to large amounts of blood in
their work.  Dr. Turner studied 129 embalmers without other risk
factors for AIDS and 4 with at least one such risk factor. As a
group, the embalmers had handled bodies of 300 people that had
died of AIDS. None of the 129 without other risk factors had a
positive blood test for HIV, but one of the 4 with other risk
factors did. This study offers evidence that AIDS is not highly
contagious and requires quite spocific behaviors to be
transmitted, but the relationship between the one positive
subject and his "other risk factors" is inconclusive. The sample
is simply too small. American Journal of Public Health October
1989, pp. 1425-1426.

3.   G.H. Friedland and R.S. Klein, "Transmission of the Human
Immunodeficiency Virus, New England Journal of Medicine, 29
October 1987 at p. 1132.

4.   Headquarters, Department of the Army, Washington D.C. 11
March 1988.  I have consulted U.S. Army authority because the
Army is one of the greatest public health institutions in the
world. A major mission of the Army is to keep its personnel
healthy enough to fight anywhere in the world and under all
conditions. Indeed, it was the U.S. Army that discovered how to
eradicate yellow fever.

5.   Allan M. Salzberg et al, "The Past and Future History of HIV
in the U.S.," unpublished manuscript on file in the W.Va. Supreme
Court Law Library, summarized in "The Relation Between AIDS Cases
and HIV Prevalence," letter to the editor, New England Journal of
Medicine, 6 April 1989.

6.   T.C. Quinn et al., "Pilot Project AIDS In Africa: An
Bpidemiologic Paradigm," 234 Science 955-63; (1984).

7.   The studies from which 1 have distilled this information
include: A Berthier et al., "Transmissibility of Human
Immunodeficiency Virus in Hemophilic and Non-Hemophilic Children
Living in a Private School in France," The Lancet, 13 September
1986; Margaret A. Fischi et al., "Evaluation of Heterosexual
Partners, Children, and Household Contacts of Adults With AIDS,"
Journal of the American Medical Association, 6 February 1987;
Janine M. Jason et al., "HTLV-III/LAV Antibody and Immune Status
of Household Contacts and Sexual Partners of Persons with
Hemophilia," Journal of the American Medical Association, 10
January 1986; Gunnel Biberfeld et al., "Transmission of HIV Infec
tion to Heterosexual Partners but Not to Household Contacts of
Seropositive Hemophiliacs," 18 Scandinavian Journal of Infectious
Diseases, 497-500; Doreen B. Brettler et al., "Human  Im
munodeficiency Virus Isolation Studies and Antibody Testing"
Archives of Internal Medicine, June 1988; Alan R. Lifson, "Do
Alternate Modes for Transmission of Human Immunodeficiency Virus
Exist," Journal of the American Medical Association, 4 March
1988; Gerald H. Friedland and Robert S. Klein, "Transmission of
the Human Immunodeficiency Virus," New EngLand Journal of
Medicine, 19 October 1987; Robert S. Klein et al., "Low
Occupational Risk of Human Immunodeficiency Virus Infection Among
Dental Professionals," New England Journal of Medicine, 14
January 1988; W. Robert Lange et al. "Are Missionaries at Risk
for AIDS? Evaluation for HIV Antibodies in 3,207 Protestant
Mission-aries," Southern Medical Journal, September 1989.

8.   Although most evidence seems to exclude infection by casual
contact, there are still HIV-positive subjects whose infections
may have come otherwise than from known risk factors. Because
determining known risk factors such as homosexuality,
prostitution, and IV drug use depends upon a patient history,
there is always a problem of patient veracity. 'SC", Kenneth G.
Casto et al., "Investigations of AIDS patients With No Previously
Identined Risk Factors." Journal of the American Medical
Asscciation, 4 March 1988, p. 1338.

9.   See Army Regulation 600-110, supra note 3, at 4-12(a).

10.  Although at the moment there have been only 124 patients
with AIDS in West Virginia, of whom 62 percent have died,
nonetheless in the big cities persons come in contact with the
infected regularly. Communication from Michael B. Edmond, M.D.,
W.Va. University Health Services Center.