*1 1089 duty they proof, heard the it’s their dict. The district have court refused to allow such proof the interrogation. recall the and determine to ex- We review this refusal for they they can from the evidence as tent an abuse of discretion. See United States v. Franks, (6th 25, recall it. Cir.), 511 F.2d 38 cert. de nied, 1042, 422 2656, U.S. 95 S.Ct. 45 Trial Tr. at 1165. The district court then (1975). principal L.Ed.2d 693 A purpose of that, jury transcript instructed the because refusing request interrogate jury fol ease, yet prepared had not been for the lowing prevent the verdict is to “fishing ex extremely would have been difficult for the peditions in search of information with which reporter requested court read back the impeach jury verdicts.” United States v. testimony. judge then instructed the Davila, (5th 749, Cir.1983). 704 F.2d jury your to “search own recollection of the Appellants appeared expedi to be on such proof. judges You’re the of the facts and tion when filed request their to ask you testimony your the have heard and make questions11 regarding jury’s fifteen the ver you determination on what recall the testimo- Accordingly, dict. we ny Trial Tr. conclude that the dis to be.” at 1168. trict court did not abuse its discretion when We review the district court’s de request. it denied this testimony cision to re-read trial to the jury for an abuse of discretion. See United II. CONCLUSION Padin, (6th 1071, States v. 787 F.2d denied, Cir.), 823, 93, cert. U.S. 107 S.Ct. For the reasons opinion, set forth in this (1986). exercising its 93 L.Ed.2d dis we affirm the district judgment court’s in all cretion, the district court should consider respects. jury’s request “the reasonableness of the difficulty complying
the therewith.” Id. omitted).
(quotation There are two inherent
dangers reading testimony response “First, jury’s questions: emphasis undue
may Second, testimony. be accorded such testimony may limited is reviewed EQUAL EMPLOYMENT OPPOR- jury.” taken out of context Id. COMMISSION, TUNITY (citations omitted). The district court noted Plaintiff-Appellee, dangers its concern with these inherent
well as its concern with the excessive time v. reading portions testimony those of the MARKET, INC., FAMILY PREVO’S
would have taken. The court’s con district Defendant-Appellant. sideration of these matters within was well No. 97-1001. We, therefore, its discretion. affirm the dis Appellants’ trict court’s denial of Rule 59 Appeals, United States Court of motion. Sixth Circuit. Interrogate Jury E. Motion to Argued Sept. 1997. Following jury’s verdict Decided Feb. 1998. Tschiras, Appellants favor of the filed a mo interrogate jury. Appellants tion to sought
motion questions have fifteen an aspects jury’s
swered on various of the ver- made, Examples questions Appellants request might tation that have been was made (1) jury (4) ed to ask of the include: "What duties intentionally?”; weight "How much did jury did the determine defendants owed to the jury explaining give to defendants' exhibit (2) act, plaintiffs?”; "What acts defen selling price how Corim arrived at the jury did dants misrepresentation[s]?”; determine to be intentional building?". Appellants’ Interrogate Mot. to jury “How did the Jury at 1-2. any misrepresen arrive at the determination that
Craig H. Lubben (argued briefed), and McIntyre Elizabeth M. (briefed), Miller, Johnson, Snell & Cummiskey, Kalamazoo, MI, Defendant-Appellant. for Paul D. (argued Ramshaw briefed), Equal Employment Opportunity Commis- sion, DC, Washington, for Plaintiff-Appellee. SUHRHEINRICH, MOORE, Before: CLAY, Judges. Circuit CLAY, J., opinion of the deliveredthe court, SUHRHEINRICH, J., in which 1098-1104), joined. MOORE, (pp. J. separate dissenting opinion. delivered a OPINION CLAY, Judge. Circuit In this with involving case Americans defendant, (ADA), Disabilities Act Prevo’s Market, (Prevo’s) Family Inc., appeals district by plaintiff, court’s order on motion Equal Employment Opportunity Commission (EEOC), issue summary judgment on of liability dam- and award compensatory interest, ages, puni- pay, back pre-judgment its damages tive one reinstatement of has employees, who Sharp (Sharp), Steven district claimed to be positive. HIV unlawfully court held dismissed after his refusal to a to submit examination issues allowed trial on Pre- compensatory punitive damages. aas post-trial judgment vo’s motion for a law, denied,argued matter of which was support there was insufficient evidenceto punitive jury. damages by award of herein, RE- For the we reasons stated sum- grant VERSE district court’s mary EEOC judgment in favor of the judgment liability issue of and instead enter did Prevo’s, holding in favor of not violate the Americans Disabilities with Sharp. part-time position area, Ac- to a receiving Act in its treatment of Steven comparable cordingly, pay. we VACATE the award of com- with hours and pensatory damages, pay, pre-judgment back days in receiving position, After two Having no interest and reinstatement. found upon inquiry Dan Prevo about how he was Prevo’s, liability part on the we do not *3 doing, Sharp explained that he wasn’t inter- its reach the issue of whether actions war- customers, acting with which something was punitive damages; rant an award of there- enjoyed area, produce he in the and that fore, court’s award we VACATE district employees commenting other were about dis- punitive damages. rupted work asking schedules and a lot of
questions why reassigned. about he had been Sharp agreed Prevo Sharp next that Background I. Factual placed be would on a leave of absence with Market, Inc., family Family is a Prevo’s pay get and health Sharp benefits to out of grocery in owned store chain western Michi- being questions situation of asked and to in gan. began Prevo’s the 1940’s and now give get Prevo’s a chance the information operates portion in that seven stores of the properly that needed to handle the situ- Sharp state. Steven worked for Prevo’s at It why Sharp ation. was not at all clear City, Michigan, in in Au- its store Traverse experienced being discomfort at asked about produce gust part of 1992 as a time clerk. change assign- the reason for the in his work position to this He had been transferred Sharp ment since had indicated his desire to position as a from within Prevo’s full-time perform public speaking in connection with 13,1993, January employee.1 On after work- program. AIDS awareness and education months, ing Sharp at Prevo’s for several told Sharp promised employer his that he employers positive that he tested for his had obtain would verification of his HIV condition (HIV), immunodeficiency the human virus personal physician from his and furnish the acquired which is known to cause immunode- employer. paid information to his While on (AIDS).2 ficiency syndrome Sharp also told leave, provided Prevo’s health benefits to employers planning participate his he was Sharp although Sharp was not entitled in pro- an AIDS awareness and education part-time employee. them as a gram speaking and would be at Traverse 1993, City High employers School. He told his he By Sharp provided March of not had information; rather, mentioning not would be where he worked the medical he consulted attorneys provide inasmuch as he did not it to as to believe be relat- whether he should 1993, Prevo’s, May ed to his affliction. A number of Prevo’s such information. Sharp attorneys attempted have children who Tra- their to reach attend School, City High Sharp thought agreement Sharp’s employ- verse continued speaking again that news of his requested about HIV and ment. Dan Prevo that employer Sharp provide his him AIDS to should come from the store with his medical rather than In a someone else. conversation information so he could make a decision Prevo, president grocery Sharp’s employment with Dan about situation. He chain, Sharp possi- expressed and Prevo’s also concern about use of discussed bility Sharp working part typical another knives and the cuts and nicks suffered Sharp by produce produce in preparing store. Since was interested in an clerks for room, opening initially parties agree produce in the cash he did not show. Both object. proceeded reassign Sharp clerks often cut themselves the course of Sharp applied position Sharp part-time produce posi- 1. had for a full-time chose to take the produce department, position but the tion. given Sharp argue to someone else. does not discriminatory was the result of action. 2,May admits that he had worked from part-time position asked if a produce department. available August 1992 until 1992 as a clerk He was told there was HIV, positive knowing did he had tested for but moving was warned that in from full-time to not disclose this to Prevo's his co-workers. part-time eligible he would to receive not Nonetheless, company paid medical benefits. rejected Additionally, tuberculosis. Prevo’s tis and regular duties.3
their suscep- Sharp’s physician would be from it did letter because raised concerns diseases, including provide requested infectious information about tible to other Sharp’s attorney suitability hepatitis Sharp’s diagnosis, prognosis, tuberculosis.4 requested provide employment. him to advised promise Sharp continued to information. 3, 1993, Prevo’s human re- On December about his condition from information Sharp regarding sources coordinator called information physician, but the personal appointment the missed in order to find ac- forthcoming. Finally, in Novem- was never ceptable dates on which could be ex- con- Prevo’s asked ber of gave Sharp twen- amined. coordinator According to examination. sent to medical ty-four hours which to advise Prevo’s of an Prevo’s, Sharp agreed to a medical examina- *4 acceptable date to reschedule the doctor’s expert at the by tion an infectious disease appointment. also coordinator told ap- an company’s expense. Prevo’s made Sharp respond failure to would be inter- that pointment Sharp Baumgart- with David for preted as a refusal to have the examination. ner, M.D., Rapids, in for November Grand Sharp to call back with an ac- When failed requested that Dr. Baum- 1993. Prevo’s date, ceptable Prevo’s terminated his em- complete diagnosis and gartner provide a nearly ployment. The termination ended Sharp prognosis concerning whether tested year during Sharp paid which received leave HIV, hepatitis positive for related and medical benefits. conditions; concerning opinion an whether Sharp require would to be future treatment Background II. Procedural work; opinion concerning an absent from period discovery, After a of Prevo’s and assigning whether Prevo’s should consider summary the EEOC filed cross-motions for work; opinion regarding an Sharp to office judgment liability violating for on the issue of produce; the transmittal of HIV on tools and granted the ADA. The district court the concerning degree the of risk opinion and an motion that EEOC’s and held Prevo’s had in Sharp posed to customers and co-workers against Sharp discriminated in violation of produce position. Sharp did not attend ADA. The court cited U.S.C. appointment, claiming he had no trans- 12112(d)(4)(A) provides which as follows: portation get office. In- doctor’s (A) Inquiries Examination stead, Prohibited Sharp physician pro- own who saw his Sharp simple opinion that tested vided entity require A covered shall not a medi- hepatitis; negative for tuberculosis and inqui- cal examination and shall not make by phy- Sharp tests his own administered to ries of an toas whether such Sharp was sician did not reveal whether disability individual with a HIV-positive. or as to the of nature and extent disability, unless such examination is setting up At the same time Prevo’s was job-related shown to be and consistent Sharp’s appointment, also al- offered necessity. with business employment Sharp that ternative would working developing have entailed at home Prevo’s contended that a medical examina- by appropriate marketing computer. information tion was in this case to deter- safely wrote to Prevo’s to decline the at-home mar- mine whether could continue to job keting position. Sharp’s perform expos- Attached to letter risk of duties without physician ing of refusal from his others to HIV or other diseases to which was letter stating negative hepati- Sharp may susceptible. have been The dis- that tested for knives, corers, trimming pineapple 3. duties include chef cleavers and all of Produce clerk packaging produce public. which are shared the clerks. for sale to the At preparation per- trimming Prevo's the times, up EEOC, formed area. At there are According initially in small 4. Prevo's want- to the status, working produce department. six clerks in the but later ed to confirm his HIV duties, variety requested In the clerks use a about other course of their additional information knives, cutting paring of related to HIV. instruments such conditions Sharp’s Stay tion for of noted situation Reinstatement Order Pend- trict court typical circumstances ing Appeal, granted outside of we which March of outlined examinations as called ADA Technical Assistance Manual. We the medical find examination of an distinguished the cited court also eases alleged positive employee, unique HIV in the support summary of its motion for particular case, of circumstances to be notably Board
judgment, most Leckelt v. of job-related and consistent with a business Hosp. No. Commissioners Dist. such, necessity. we As do not reach a deter- (5th Cir.1990), grounds on the F.2d 820 punitive damages, mination of though ap- hospital cited the cases Prevo’s involved pears employer’s behavior in this patients exposure whose risk of sufficiently instance was not unreasonable or exposure than the greater risk of justify malicious to punitive award of department setting. damages event. testimony the court The medical before depositions Sharp’s consisted doctor III. Standard of Review expert wit- Prevo’s doctor. general that the risk ness testified This court reviews the district court’s transmitting the disease to a co-worker grant summary judgment novo. de *5 one in ten If direct customer was million. Cos., Broadcasting Brooks v. American 982 occurred, contact the risk (6th Cir.1991). blood-to-wound Summary judg- F.2d 500 in increase to one three thousand.5 would if proper genuine ment is there is no issue as doctor, Sharp, who Prevo’s had not examined party to material fact and the moving testify specific in of not terms of odds did judgment entitled to as a law. matter of transmission; spoke general- rather he more 56(c). party The moving Fed.R.Civ.P. ly exposure the risks involved in of about summary judgment bears the dem- burden of open There wounds contaminated blood. onstrating that there is an evi- absence of testimony already that the low risk of support nonmoving party’s dence to case. transmission could be further reduced Catrett, 317, 325, v. Corp. Celotex 477 U.S. procedures.6 light of this proper hygiene 2548, 2553-54, 106 S.Ct. 91 265 L.Ed.2d evidence, the district court concluded-that (1986). Viewing light in the evidence Sharp’s inquiries into health a demand and nonmoving party, most favorable strictly examination for a medical were not court whether must determine the evidence necessary. The court it was concluded that presents disagreement require a sufficient therefore, unlawful, suspend for Prevo’s to submission the factfinder or it is whether discharge Sharp undergo and for failure to a party prevail so that one must as a one-sided medical examination. Lobby, Liberty matter of Anderson v. law. Inc., 242, 251-52, 106 damages jury, of a U.S. S.Ct. The issue was tried to (1986). 2511-12, $10,000 compensato- 91 L.Ed.2d which awarded $45,000 ry damages punitive damages. and court The district also ordered reinstatement Liability of IV. Discussion pro- position to his former in the Medical Examination Must Be Job- and, department along pay duce with back Related and Consistent with reinstatement, payment
pending Necessity Business per wages usual week. Prevo’s $192.50 $100,000 pro- bond, The with Disabilities Act posted supersedeas and the Americans approved “qualified disability” individuals with a stay district mone- tects court disability. tary damages judgment stay the from discrimination based on their but did not 12112(a). § prohibition order of reinstatement. filed a Mo- 42 The U.S.C.A. hypothetical bring figure Hygiene procedures 5. The used to that could have out minimized (1) wearing the protective, HIV-positive person bleeding directly risk of transmission include: involved (2) gloves; using indi- steel-lined open person. wound into an of an uninfected utensils; and vidual set of knives other and clean-up procedures. enhanced safety procedures referred to section of and able to follow against discrimination (a) inqui- examinations and reduce or eliminate risk infection. includes 12112(d)(1). § Once an pathogen 42 U.S.C.A. HIV is a blood borne and can be ries. hired, pro- the statute has been individual in an such transmitted environment store, as follows: produce department grocery vides of a of a require susceptible scrapes one is to cuts and entity shall not medi- where A covered inqui- prone shall not make regular on a basis. himself was cal examination employee as to whether such scrapes through of an cuts the use of knives ries disability with a employee is an individual preparing produce scraping himself nature and extent of as to the stapled produce against boxes. He acknowl- disability, unless such examination is edged “[mjany cleaning times the job-related and consistent to be shown sanitation of the knives not done from [was] necessity. with business one item to the next as it should have been 61.) (J.A. 12112(d)(4)(A). Sharp also done.” at admitted § 42 U.S.C.A. probably were times he not clean there did clearly permits statute The using knives after them. There was also examinations, only in certain limited cir but testimony that it not uncommon for Pre- The focus is on the nature of cumstances. vo’s workers to have several lacerations at job-relatedness and what constitutes busi Prevo, time. the same Dan who had once necessity. interpretative guidelines ness produce department, gave tes- worked explain that the statute was to the ADA and, timony shared knives prevent against “medical tests intended to times, knives on which one had bled. legitimate inquiries that do serve 1630.13(b) purpose.” C.F.R. business Furthermore, behavior is not (1996).7 regulations provide an App. suspicion Sharp may on a based mere example prohibited medical examination: Rather, Sharp directly sick. has communi- *6 suddenly in employee an starts to use “[I]f alleged his status to Prevo’s. cated HIV of or to amounts sick leave starts creased This is not the sort of unfounded and biased appear sickly, employer require an could not ADA discrimination that the was created to AIDS, to be tested for HIV Instead, prevent.8 Prevo’s actions were infection, employer unless the can or cancer Sharp’s based on statements and Prevo’s job-related testing that such demonstrate safety concerns about the health and mea- Id. necessity.” with business and consistent prevent sures needed to further infection. prohibited hypothetical of action time, employer At the same the need not factually from the case employer is different employee’s take the word for it that the legitimate pur business before us. may require has an illness that necessity protect pose business was to special Instead, accommodation. em- the Sharp, employees the health of its other ployer ability disprove has the to confirm or general public the from HIV infection. Be employee’s If the statement. this were not frequency bleeding cause of the of case, area, every employee the claim verify to could a dis- Prevo’s needed condition, ability warranting special a Sharp’s medical determine wheth accommodation yet deny employer opportunity er he associated with the the to had other conditions HIV, he was and determine whether aware confirm whether need for the accommoda- 760, Gilday County, ity stigma may carty. v. 124 F.3d 766 and the Mecosta it Chai R. Feld- (6th Cir.1997) J., (Kennedy, concurring part, blum, Inquiries in Medical Examinations and Under dissenting part), suggested in that the it was the Americans with Disabilities Act: A Viewfrom appendix only interpretive to the ADA is and is Inside, (1991), Templ.L.Rev. 64 cit- issue, binding addressing law. Without this ing H.R.Rep. Cong.2d pt. No. 485 101st Sess. guidelines helpful we find that constitute 26; S.Rep. Cong. No. 101st 1st Sess. interpretations in this case. case, (1990). present already In the has positive identified himself to Prevo’s as HIV Congress creating 8. Part of the concern of the planned identify by discussing to further himself ability employers require the ADAand the to high HIV and AIDS at a local school. undergo examinations medical was exposure employee’s the unwanted disabil- (2) purpose severity po- believe the The nature and tion exists. We impediments harm; for such ADA was not to create tential co-operation, pro- but to employer-employee (3) The potential likelihood dialogue between an em- mote an interactive occur; harm will employee to to what ployer and discover employee is and how the extent the disabled potential The imminence of accommodated, all, employee may if at be harm. workplace. 1630.2(r) (1996). 29 C.F.R.
Determination Direct Threat sought The information via the medical examination was whether safely could Next, argues order to de- perform job the function of involving cuts Sharp posed whether a direct threat termine scrapes exposing without others to HIV workers, safety health and of other infection. The EEOC contends that in- require Sharp undergo authorized to formation can be obtained without a medical of his medical examination condition. examination, by consulting either health care argues opinion that a as to EEOC medical by simply himself, asking Sharp officials Sharp’s necessary prior threat was direct and that the necessity determination of the examination, and that medical the medical a medical examination is to be made testimony risk of showed the transmission to consulting a health care official that a examination to before de- be so low manding employee undergo the existence of a direct threat that the determine a medi- unnecessary. trial, cal pre- examination. At the EEOC testimony expert sented of its employers require The statute allows witness, MacArthur, Rodger Dr. who stated qualification employment that the dis- that a op- medical examination would be an pose abled individual does not a “direct portunity to evaluate intellect and safety threat to the health or of other indi- personal hygiene; opportunity to assess workplace.” viduals U.S.C.A Sharp’s understanding of how the condition 15(b)(2) (1996). 12113(b); 29 C.F.R. 1630. can be transmitted and determine whether “significant “Direct threat” is defined as a acquainted precau- with universal safety risk to the health others preventing tions for transmission. Dr. Mac- accom- cannot eliminated reasonable *7 Arthur also stated that it would be reason- 12111(3); modation.” U.S.C.A. 1630.2(r) (1996). employer able for an to be concerned about employee C.F.R. Even if an threat, positive long workplace. a an HIV direct as a reasonable pointed accommodation can be made to eliminate that The EEOC also out that the testimo- threat, employee may employed. remain ny expert, of Prevo’s medical Dr. David Regulations Id. The Code of Federal further Baumgartner, that a medical examina- provides: Sharp only being tion of rises to the level of determining posed beneficial in the risks he poses
The determination that an individual
necessity
and not a
as construed
the ADA
a “direct
threat” shall be based on an
Baumgartner
The EEOC contends Dr.
ex-
individual assessment of the individual’s
plained
present ability
safely perform
that a medical examination of an HIV
to
the essen-
job.
positive employee
necessary only
tial functions of the
This assessment
if
would be
shall be based on a reasonable medical
has uncontrolled
diarrhea
judgment that relies on the most current
sufficiently
hamper
advanced dementia to
knowledge
medical
on the best
and/or
ability
memory
short-term
and the
to main-
objective
In
available
evidence.
determin-
personal hygiene,
tain
and that there was no
ing
pose
whether
individual would
a
into
evidence
fell
either of these
threat,
direct
factors
be considered
However,
categories.
of the record
review
include:
Baumgartner equated
reveals Dr.
the issue
(1)The
risk;
hy-
bleeding
duration of the
and lack of maintenance of
Furthermore,
regularly in
Baumgartner
ture wounds incurred
the course
Dr.
giene.9
testimony
employment. Additional
bleeding oc- of his
assuming there is
agreed that
utensils,
sharing
cutting
basis,
was heard on the
not
regular
he could
curring on
cleaned;
properly
some of which were not
to whether
could
opinion as
render an
Sharp, again, testified he was sure at
working
produce
de-
have remained
(J.A.
properly
he
clean his knives.
times
did
examining him.
partment without
179.) Therefore,
Dr.
we do not believe
inLeckelt, Sharp’s
provide
As
refusal
testimony to indi-
limited his
Baumgartner
necessary
information from his own
diarrhea and
have uncontrollable
viduals who
to a
physician, then his refusal
to submit
dementia.
HIV induced
company-paid
prevented
examination
Prevo’s
knowing Sharp’s
ever
HIV status and
from
that the medical exami-
argues
The EEOC
what,
deciding
any,
if
measures were
from
Sharp posed a
whether
to determine
nation
Sharp,
necessary
protect
the health of
unwarranted under Leckelt
threat was
direct
other Prevo’s
and Prevo’s custom-
clerk,
position as a
in his
because
Indeed, Sharp prevented
ers.
Prevo’s from
transmitting
Sharp posed a low risk of
HIV
knowing
he
whether
had
condition
The district
or customers.
to his co-workers
may require accommoda-
which federal law
inapplicable
that Leckelt was
court also noted
fact,
In
it is unknown
all of the
tion.
spreading
to co-
[HIV]
“the risk of
because
parties that have ever been associated with
extremely small and that the risk
workers is
positive.12
this case whether
is HIV
negligi-
to customers is
spreading [HIV]
out,
However,
points
as Prevo’s
ble.”
Furthermore,
simply
grocery
Prevo’s is
probabilities
Leckelt held
chain.
is no
that Pre-
store
There
evidence
just
infectious disease is
transmission of an
organization,
vo’s has within its
access to
Yet,
to be considered.11
one of four factors
knowledge” as
“the most current medical
exposure
and transmission
Therefore,
is the existence
required
the statute.
instrumental in deter-
opportunities that are
party
needed to contact a third
to obtain a
necessary.
examination is
mining if a medical
examination of
to confirm his
Leckelt,
Leckelt,
dealing
As in
we are
steps
at 829.
what
HIV status and
determine
and environment in which
profession
necessary concerning Sharp’s employ-
with a
were
exposure.
blood
It
there is continuous
ment. The EEOC contends Prevo’s could
presented
condition
undisputed that
have obtained this information from a health
opportunities. Sharp
care source without an examination of
potential transmission
cuts,
scrapes,
punc-
by simply asking Sharp.
As we stated
testified himself
facts,
Baumgartner
quiry
'[findings
arguing
of]
did not be-
should include:
In
that Dr.
based
necessary,
judgments given
lieve a medical examination was
on reasonable medical
the state
points
Baumgartner
to a letter from
(a)
EEOC
knowledge,
of medical
about
the nature if the
attorneys discussing
testimony.
(how
transmitted),
(b)
risk
the disease is
Baumgartner
under
letter
states that
ordi-
this
nary
(how long
duration of the risk
infectious), (c)
is the carrier
person
an HIV infected
circumstances
(what
severity
of the risk
is the
pose any
working
area does not
in a food service
(d)
potential
prob-
parties)
harm to third
*8
threat
employment.
transmission and needs no restriction in
to
of
abilities the disease will be transmitted and will
(J.A.
194.)
exception
at
Leckelt,
varying degrees
cause
of harm”
909 F.2d
suffering
this rule is if the individual
from
(5th Cir.1990) citing
at 829
School Board of
personal hygiene.
with his
illness that interferes
Arline,
287-89,
County
Nassau
v.
480 U.S.
gives
examples,
being
Baumgartner
two
those
Id.
S.Ct. at 1131.
any neurological
diarrhea and
disease
intractable
Id.
states
like HIV
dementia.
He then
related
12.Although
parties
regarded Sharp
both
have
as
bleeding
that
would be a threat and that if these
disabled,
role,
mystery.
his condition
a
playing a
a
exam-
remains
factors were
then medical
finding
Sharp
positive
of benefit. Id.
district court's
is HIV
ination would be
solely
Sharp's
is based
on
word.
1996 WL
Equal Employment Opportunity
Commission
604984, *2,
may
finding
FN2. The district court’s
Market, Inc.,
Family
nothing Spartan in the record indicates could portion Another argument of Prevo’s anything in- provide Prevo’s with other than Sharp represents a direct threat to the general formation of a nature rather than an safety health workplace of others in the specific individualized assessment and there can be no reasonable accommoda- operations and the at Prevo’s. As Prevo’s him, tion thereby justifying his dismissal. contends, argument the EEOC’s im- would Because we do not have the record wheth- pose upon duty to become an ex- indeed, er Sharp positive, HIV we will not pert in the field of HIV transmission and part address argument. of Prevo’s control. We do believe the statute and However, we do not need to reach that issue regulation impose such a burden. in order to summary judgment reverse the imposed by order the district court. argues regulation
The EEOC must be light purpose. agree read of its We Damages V. Punitive principal purpose regulation of the is to prohibit employers making from adverse em- Because we have found that Prevo’s ployment stereotypes decisions based on did not against Sharp discriminate in viola generalizations ADA, associated with the individu- tion of the we do not reach the merits disability al’s rather than punitive However, on the individual’s damage claim. we actual briefly characteristics. 29 C.F.R. Pt. 1630 finding outline our of insufficient evi (1996). However, App. we that the lan- justify find dence such an award. guage regulation is instructive on how At no during time the course of this case to discover an individual’s actual characteris- did Prevo’s actions rise to the level of inten- disability; tics of and in order to understand tional or careless conduct. in- When particular those characteristics under these condition, formed Prevo’s of his Prevo’s con- circumstances, a medical examination was employ Sharp, placing tinued to him in a needed. position similar pay and with the same
Furthermore, we do not believe Prevo’s benefits. Prevo’s did not act out of malice employ- actions rise to the according reasonably level “adverse but acted what stereotypes perceived job-related decisions on being ment based as and a business Id. generalizations.” necessity. Sharp expressed made con- When that he employing Sharp certed effort to unhappy position, continue with his Prevo’s and wage and at the same Sharp agreed place Sharp paid and time scale. When leave. condition, alleged provided Sharp paid disclosed his HIV he Prevo’s also with medi- position only was moved to a located a few cal benefits to which he was not entitled meantime, away previous part-time feet from employee. one. He contin- In the *9 pay Sharp promised provide ued to receive the same and benefits. to Prevo’s with the leave, placed Sharp When Prevo’s it from needed medical information his own leave, which, paid part physician. Sharp pro- benefit to as a time Even to when failed entitled; information, employee, Sharp was not nor was vide the Prevo’s continued to Stores, Inc., Spartan grocery edge marketing, is a wholesaler in various area such as advertis- by grocery Spartan owned the ing stores serves. and human resources. specialized makes available to the knowl- stores wages MOORE, pay his and medical insurance. Sharp Judge, dissenting. Circuit undergo consented to the medical examina- I respectfully dissent from majority the company expense tion at consulting after opinion I because believe that the Americans attorney. prohibited With Disabilities Act Prevo’s Mar- award of The EEOC contends from requiring Sharp ket to submit to a upheld punitive damages should be for the medical examination under the circumstances the ADA Prevo’s violated reason that of this case. to a medical exami-
asking to submit suspending him. do not and then We nation I. Introduction juror a reasonable would conclude believe The Americans with Disabilities Act exhibited malicious or reckless (“ADA”), seq., 42 U.S.C. 12101 et ranks as warranting punitive damage behavior important rights one of the most civil stat- award in favor. We note that passed century. Among utes in this other paid agreed only to the leave of absence and things, protects ADA millions of disabled sought legal recourse for the medical exami- Americans in employ- from discrimination requirement after he was fired. The nation statutes, great rights ment.. Like other civil argues employer duty that the had a EEOC to its ADA prior passage subject to current knowledge obtain last minute amendments that threatened to whether ask order to determine could severely protective limit the size of its um- examination, submit a medical Representative Chapman brella. offered one yet pass, allowed 10 months to then proposed such amendment. His amendment Sharp for not producing the medical fired provided as follows: However, it was information. who (d) pro- tell Handling continued to Prevo’s he would soon Food Job. It shall not be the information from violation employer vide them with his own of this act for an if what assign assign any doctor. Even occurred this case refuse to or continue to ADA, of employee were a violation we do not with an infectious or communica- juror reasonable public significance believe a would conclude ble disease of health part job involving handling, provided that it was reckless behavior on the of food provide ask that the employer Prevo’s to medical in- shall make reasonable personal from his formation doctor. Con- accommodation that would offer an alter- trary argument, to the EEOC’s every employment opportunity native for which reckless; and, the ADA again, qualified violation of is and which the we find no violation of the ADA would sustain no economic dam- employer age. under circumstances of this
ease. H2471-01, Cong. (daily Rec. ed. 1990). May acknowledging While
VI. Conclusion (“CDC”) the Centers for Disease Control has reasons, foregoing Based on the RE- Acquired we never found a case where Immune (“AIDS”) grant VERSE the district Deficiency Syndrome court’s of sum- or Human mary (“HIV”) judgment in favor Immunodeficiency of the EEOC on the Virus had been liability summary issue of and enter judg- transmitted handling infected worker Prevo’s, food, ment in holding favor that it argued did he nevertheless that “[t]he real- not violate the ADA ity many in its treatment of Americans would refuse to Sharp. Accordingly, patronize any we VACATE the award food establishment if an em- compensatory damages, pay, pre- ployee back were known to have a communicable (statement judgment interest and reinstatement. Hav- Rep. Chapman). disease.” Id. Prevo’s, ing liability theme, part Reinforcing perception-is-reality found no on the “[rjestau- we do not determine whether its actions war- Senator Jesse asserted that Helms punitive damages; patrons likely rant an award of there- rant are to steer clear of fore, having employ- we VACATE the district court’s award food service establishment punitive damages. handling ee is known to food who have AIDS
1099 Despite convincing, overwhelming evi- disease. any or other communicable that indicates that dence AIDS'eannot be transmitted ei- that available evidence the fact AIDS, through simply codify air or diseases, ther food including cannot be certain S7422-03, food, ignorance.” Cong. 136 Rec. handling 7437 process of transmitted in 1990) (statement 6, (daily ed. June of Sen. persuasive many is far from that evidence Harkin). (dai- Senator Harkin also “[t]he noted S7422-03, Cong. Rec. people.” thesis of the Americans Act With Disabilities 1990) (statement 6, ly of Sen. ed. June people simply this: That with disabilities , Helms). ought judged to be on the basis of their oppo- Many Congress of rose in members abilities; they judged should nor dis- Representative sition to this amendment. fear, against criminated based on unfounded “[t]wenty-five John Lewis lamented prejudice, ignorance, mythologies; people major passage of the civil years after the ought judged upon to be based the relevant 1960’s, legislation of we are still rights medical evidence and the abilities have.” arguments that were hearing the same tired Id. They justify segregated restaurants. used to pressures Rather than succumb to the of again used to de- have been dusted off and “fear, prejudice, codifying ignorance,” [and] Cong. Rec. fend discrimination.” Congress adopted instead an alternative 1990) 17, H2471-01, (daily May ed. proposed by amendment Senator Orrin Lewis). (statement Rep. Representative of charged Hatch. That amendment the Secre- sponsor admits “[t]he Miller declared tary of Health and Human with the Services that AIDS can be trans- there is no evidence responsibility preparing of a list of infectious handling, but his amendment mitted food and communicable diseases that could be in such cases because allows discrimination through handling. For transmitted food may by handling businesses be hurt food diseases, employers those would be able to public perception of AIDS victims.... This employees. Congress reassign infected may But this is as if businesses 40 be true. adopted part this amendment as public percep- years ago pointed to the had doing, Congress In ADA.1 so chose facts tion of blacks said our customers will not fear, ignorance, over information over blacks, hiring understand our so allow us to mythology. medicine over against blacks. Nonsense. discriminate enactment, not license discrimina- Congress This should the 1990 neither nor Since HIV (statement appeared Id. at 2481 tion of kind.” AIDS has ever on the list of infec- Miller). Rep. protested Harkin that could be communicated Senator tious diseases Yet, handling despite pass legislation spite through ... of the clear of food.2 “[t]o 12113(d) entity may assign § refuse to or continue to 1. 42 U.S.C. reads as follows: ered job involving assign (d) such individual to a food and communicable dis- List of infectious handling.” eases general Secretary (published by and Human Ser- of Health 2. Below is the most current list vices, July 6 months after Department not later than part Health and CDC as 22, 1997) shall— September dis- Human Services on (A) review all infectious and communicable supply: through eases transmitted the food may through diseases which be transmitted by Pathogens I. Often Transmitted Food Con- supply; handling the food by Infected Persons Who Handle taminated (B) publish a list of infectious and communi- Food, and Modes of Transmission of Such Patho- cable diseases which are transmitted gens through handling supply; the food ingredients from The contamination of raw (C) publish by the methods which such dis- food-producing transmitted; infected animals cross-con- eases are processing prevalent during are more (D) tamination widely such information re- disseminate of foodbome disease than is contamina- causes garding and their modes the list of diseases by persons or conta- tion of foods with infectious transmissibility general public. to the However, pathogens gious are diseases. some updated annually. Such list shall be 12113(d)(2) frequently contaminated provides transmitted food 42 U.S.C. then persons. presence one of infected when an individual has an infectious or commu- list, symptoms persons following signs who disease on the "which cannot be nicable accommodation, by pathogen may indicate infection eliminated reasonable a cov- handle food *11 485(111), (1990), contrary, Cong. at 45 evidence to U.S. Code & this medical (“The effectivély adopts, purpose opinion as the Admin. News majority circuit, Chapman creating is to amendment the ‘direct threat’ standard law of this fear, ignorance rep- exclusions which are not based on prejudice, and eliminate and the objective in- evidence about the individual resented. volved.”). Second, employer an can conduct Threat II. Direct analysis objective the direct-threat based on requiring medical evidence without the em- Chapman would have au- amendment ployee to submit to a medical examination. reassign to a employers thorized non-food- any food-handling employ- handling position Reassignment A. or infectious ee who had a communicable respect reassignment, so without in Leckelt v. employer could do With disease. any of Hosp. the Board Dist. No. relying on medical evidence Comm’rs (5th Cir.1990), posed hospital in fact a threat to co- F.2d 820 a adminis direct Similarly, or customers. this trator received word that a nurse was an workers case, majority patient a holds that Prevo’s Market associate of with AIDS. The admin immediately reassign immediately investiga to a non- istrator launched an could any However, food-handling position taking reference tion into the matter. without before nurse, regard medical evidence that fact action to the the admin posed legal a threat to his co-workers or istrator consulted counsel and direct reviewed majority hospital’s policies customers. The further holds that infection control reassignment, applicable guidelines concerning Prevo’s could then re- after HIV and by examina- quire promulgated to submit to medical AIDS the CDC and the posed Hospital tion in confirm that he in fact American order to Association. Id. at 822. information, hospital direct threat others. Based ad regard ministrator then took action in to the majority’s disagree I with both of the hold- nurse. First, ings I believe that an for two reasons. contrast, here, objective employer must some relevant Dan Prevo have admits he food-handling steps objective medical evidence that a em- took no to obtain relevant ployee poses prior to others direct threat medical evidence as to whether he needed to (Prevo reassigning reassign Sharp. to a Dep.). non-food-han- J.A. at 127 CDC, dling position. H.R.Rep. No. See 101- Prevo could have contacted the through pathogens occasionally that could be transmitted to others han- Other are transmitted diarrhea, dling supply: vomiting, open food, the food by persons usually infected who handle but fever, urine, sores, boils, jaundice. skin dark or intrinsically cause disease when food is contami- (in The failure of food-handlers to wash hands during processing nated or cross-contaminated toilet, using handling situations such as after preparation. pathogens or Bacterial in this cate- meat, cleaning spills, carrying garbage, raw gory require period temperature often abuse example), gloves, wear clean use clean permit multiplication their to an infectious responsible utensils is for the foodbome trans- dose will before cause disease in consumers. pathogens. mission of these Non-foodbome by Preventing persons food contact who have an transmission, person routes of such as from one acute diarrheal illness will decrease the risk of another, major to spread are also contributors in the transmitting following pathogens: pathogens. Pathogens of these that can Campylobacter jejuni person cause diseases after infected handles histolytica Entamoeba following: food are the Enlerohemorrhagic Escherichia coli Hepatitis A virus Enterotoxigenic Escherichia coli Norwalk and Norwalk-like viruses Giardia lamblia typhi Salmonella Nontyphoidal Salmonella Shigella species Rotavirus Staphylococcus aureus Streptococcus pyogenes Taenia solium Pathogens Occasionally II. Transmitted Vibrio cholerae 01 Food Contaminated Infected Persons Who Yersinia enterocolitica Food, Usually but 22, 1997). Handle Transmitted Con- Fed.Reg. (Sept. See 62 Processing tamination at the Source or in Food byor Routes Non-Foodborne
HOI *12 organization, cifically designed See, information or an to e.g., address. Ar AIDS/HIV fact, specialist. line, In 284, 107 infectious disease 480 U.S. at S.Ct. at 1129 gave organizations him the names of several (“Congress acknowledged society’s that accu personal to call and name of myths mulated and fears disability about and physician specialist. infectious disease disease are as handicapping physi as are the —an (Sharp Dep.). J.A. at 98-94 Rather than cal limitations that flow from impair actual information, up merely follow on this Prevo aspects ment. handicap Few of a give rise to Bannow, spoke neighbor, with his Dr. Tom public same level of misappre fear and specialist, who is not an infectious disease contagiousness.”). hension as personnel, and to human resource none of Chapman Like the eventually amendment specialized whom were doctors or who rejected by Congress, majority opinion workplace. J.A. at 277-81 AIDS/HIV require fails to an employer to obtain rele- (Prevo Test.). Despite having rele- objective vant prior medical information objective regarding vant medical evidence reassigning an HIV infected food-handling Sharp presented whether a direct threat employee to a non-food-handling position. In others, reassigned Sharp Prevo to the receiv- doing, majority fear, so allows preju- ing department placed paid him and then dice, ignorance and produced administrative leave.3 amendment fester unabated. The fact that reassigned Sharp Prevo with- any legal out or medical basis leads to the Required B. Medical Examination inescapable conclusion that he did so out of fear, prejudice, ignorance and whether it was In allowing addition to Prevo to act on fact, his own or that of his customers. In in fear, prejudice, ignorance by summarily deposition, his Prevo testified that he men- reassigning Sharp, majority reinforces people tioned to would be con- discriminatory by allowing conduct Pre- handling produce. cerned that he was fresh require Sharp vo’s to to submit to a medical (Prevo Dep.). J.A. at He further testi- examination in order to determine whether fied that once disclosed his HIV+ poses he a direct threat to A others. “direct status, [Sharp] go he “wouldn’t allow into threat” “significant is defined as a risk to the (Prevo produce_” Dep.). at J.A. He health safety of others that cannot be would not “allow” to work eliminated reasonable accommodation.” despite acknowledging that he did not have 12111(3); § 42 U.S.C. see also 29 C.F.R. making medical information for that de- 1630.2(r) (1997). majority correctly cision. J.A. at 125. In the absence of rele- if *13 objective ed,
available evidence. bleeding “it would be inadvisable for regular part job,” 1630.2(r) (1997). occur as of the but “[h]ad making § 29 C.F.R. pursued, quite medical evaluation been it is assessment, employer an must individual (1) likely that the recommendation would have following four factors: consider the (2) risk; job.” been for no restrictions on the Id. the nature duration of the and Moreover, (3) MacArthur, deposition, Dr. in harm; potential severity of the likeli- occur; that the infecting testified odds of potential harm will and hood that the (4) fellow in potential harm. worker were one ten-mil- the imminence of the Id. lion under normal circumstances. J.A. at majority, According to the Prevo’s could (MacArthur Dep.).4 By comparison, 159. he require Sharp to submit to a exami- patient by testified that infection of a an nation in order to make an individualized surgeon body HIV4- with her hands in the considering in these four factors. assessment cavity patient anywhere of the would from simply Yet there is no need for a medical forty-thousand in in one to one four-hundred- fac- examination order to consider these depending study. thousand on the at J.A. objective ample tors medical evi- because 158. showing pose that he not dence exists does See, e.g., Hartog direct threat. Den v. Was- expert testimony suggests The (10th Academy, atch F.3d Sharp’s risk of infection to co-workers is not Cir.1997) (explaining that “29 C.F.R. result, significant. present As a he does not 1630.2(r) § require independent not 'an does Yet, any a direct threat to of them. even if medical examination when the available ob- threat, present he did a direct he is still a jective is clear. It uses the con- evidence “qualified if reasonably worker” he can be junctive knowledge between medical ‘and/or’ 12111(3); § accommodated. 42 U.S.C. evidence.”). objective 1630.2(r) (1997). C.F.R. There is no dis- pute that providing Sharp gloves with steel MacArthur, Dr. infectious EEOC’s disease separate and his own knives were reasonable expert, deposition in his that once testified accommodations that HIV, would further reduce person infected with remains infected the likelihood (MacArthur and imminence of transmission. Dep.). forever. at 150-51 J.A. Maj. slip op. at 1093 & n. 6. He further testified that the disease is ulti- (MacArthur mately Dep.). at fatal. J.A. All expert testimony emphasizes of this Thus, only issues left to resolve under point that likelihood and imminence of infec- the four-factor test are the likelihood that the tion could be determined without resort to a potential harm will occur and the imminence Sharp. majority examination of potential harm. The answers to these parts testimony focuses where both context-specific; questions are one would experts suggest that a medical examination need to consider the environment which primarily would have been beneficial to de- employee to eval- infected works order Sharp’s personal hy- termine intellect and uate factors. these However, giene habits. neither Dan Prevo ' disputes anyone No in an reported one works nor else had observed or cuts, scrapes, environment where are Sharp’s per- there aberrations in intellect or Yet, Thus, bleeding. according hygiene to Dr. Baum- sonal habits. Prevo’s had no Prevo’s, gartner, expert of believing personalized “under ordi- foundation for that a circumstances, nary necessary a human immunodefici- medical examination of it, posited hypothetical directly 4. He the fanciful that if one into then the likelihood of transmis- co-workers had a fresh cut on his sion would increase to one three-thousand. hand, open, held the wound wide at bled J.A. 160.
H03 analysis. Maj. slip From nate risk of infection.” op. the direct-threat to conduct I analysis, conclude that it is foregoing not. recognized legitimate pur- business (1)
poses are as follows: when with Busi- III. having difficulty performing job his or her Job-Related/Consistent (2) Necessity ness effectively; when an becomes job disabled on the or wishes to return to requiring to submit to In addition to (3) illness; suffering work after if an for the direct threat a medical examination accommodation; employee requests an analysis, majority also holds that a medi- examination, screening, if medical job-related and consis- cal examination monitoring required by other See laws. necessity. Maj. slip op. tent with business Manual, VI, ADA Technical Chap. Assistance However, provides: the ADA at 1093. (1992), 12-14 Op. cited in Dist. Ct. at 5 entity require a medi- A covered shall *14 (8/27/96), S.Rep. J.A. at 24. See also No. inqui- not make cal examination and shall 101-116, 39; 101-485(11), H.R.Rep. at No. at employee as to whether such ries of an (III), 44; California, 75 and at Yin v. 95 F.3d disability employee is an individual with (9th 864, Cir.1996) (requiring 868 severity or or as to the nature difficulty examination where had disability, examination or in- unless such job); performing Rodriguez v. Loctite Puerto job-related con- quiry is shown to be and (D.P.R. Rico, Inc., 653, F.Supp. 967 661-62 necessity. with business sistent 1997) (requiring medical examination where 12112(d)(4)(A). request- in cited medical condition § See also 29 42 U.S.C. absence); 1630.13(b) 1630.14(c). ing a two-month leave of Judice v. §§ and Job- C.F.R. Hospital F.Supp. Serv. Dist. No. 919 978 business necessi- related and consistent with 1, (E.D.La.1996) (requiring medical evaluation ty that the medical test serve a requires seeking hospital for doctor reinstatement of purpose.” S.Rep. No. “legitimate business privileges suffering staff from after alcohol- 101-116, (1989); H.R.Rep. 101- at 39 No. ism). Feldblum, generally See Chai R. Med- 485(11), (1990), Cong. & at 75 U.S. Code Inquiries ical Examinations and under the 303,357; H.R.Rep. at No. 101- Admin. News A Americans With Disabilities Act: View 485(111), (1990), Cong. 44 at U.S. Code & (1991) Inside, Temple 64 L.Rev. 521 445, 466; 1630, pt. Admin. News C.F.R. from (discussing which em- circumstances under 1630.14(c) (Inter- 1630.13(b), §§ App. ployers may require medical examinations Guidelines).5 pretive According to the ma- employees). current jority, legitimate purpose “Prevo’s business protect necessity business was to foregoing apply to None of the situations Sharp, employees health of its other and the per- Sharp. dispute There is no that he public general from HIV infection. Because satisfactorily produce clerk. formed (Store produce in frequency bleeding Manager at 142 Mike Rodes J.A. area, Furthermore, verify Sharp’s medi- Dep.). seeking Prevo’s needed not condition, suffering determine whether he had oth- after illness or cal to return to work HIV, injury, claiming associated with and deter- nor was he to have become er conditions Moreover, injured job. at no time did mine whether he was aware of and able on the Final- procedures ever seek an accommodation.6 safety follow to reduce elimi- notes, omitted). omitted) Gilday majority correctly (quotations See also id. at 763 5. in v. As the (6th County, (discussing weight given 124 F.3d Cir. to be to EEOC’s Mecosta n. J., 1997) (Kennedy, part, concurring noting interpretive guidelines dissent- that to the appendix ing part), judge interpretive guidelines interpret "[t]he one wrote that extent that interpretative, a set of rather than controlling regarding constitutes regulations are EEOC is, therefore, legislative, binding rules and not plainly wrong regulations’ meaning, unless Nevertheless, interpre- such administrative law. inconsistent) (Moore, J.). enforcing agency, the ADA the while tations of undisputed It is informed his em- controlling upon courts reason of their give ployer only HIV + status in order to body of his authority, experience and do constitute a speak- would be judgment litigants Prevo’s advance notice he to which courts and informed may properly (citations ing high guidance.” at the local school. resort for Id. about HIV ly, majority produce nor the cite to to all neither Prevo’s ble clerks to reduce the risk of require any pathogen. other law would transmission of blood-borne Accordingly, case. Pre- examination That is what fairness dictates and the law legitimate purpose business requires. pt. App. vo’s had no See 29 C.F.R. 1630.2(r) (1997) Guidelines) Sharp. (Interpretive examination of requiring a medical (“An employer may require, qualification as a legitimate majority holds standard, pose that an individual not a direct protect purpose of Prevo’s was to business safety threat to the health or of himself/her- Sharp and others because of the the health of qualification self or others. Like other bleeding produce frequency of area. standard, apply such a standard must to all holding perpetuates discrimination This just ... and not to individuals single Sharp. Why out allowing Prevo’s to disabilities.”) added). (emphasis with setting? everyone in this If single out cuts, scrapes, from cutting suffers everyone equip- bleeding, and if shares CONCLUSION sanitary policies, ment fails to follow ADA, adopting Congress struck a everyone then is at risk for all blood-borne right balance between the of disabled Ameri- just pathogens. as much at risk of cans to be free from discrimination getting hepa- infection a blood-borne such as workplace, right employers and the of his co-workers who has titis from one protect safety employ- the health their hepatitis getting as his co-workers are of *15 Attacking Chapman ees and customers. fact, by Baumgartner, him. In Dr.
infected amendment, Representative Weiss observed Prevo’s, expert of ex- the infectious disease Chapman that “[t]he amendment flies in the plained that very purpose face of the of the ADA. The practice in it was a common this work [I]f designed prohibit ADA is kind setting tools to become bloodied for persons treatment of affected if there and then risk specifically amendment authorizes.” subsequently the tool would be used H2471-01, Cong. (daily May Rec. ed. employee regular probabili- with a another 1990) (statement Weiss). Rep. ty that the second would cut may majority opinion. same be said of the tool, bloody them self with the there [sic] Chapman rejected by Like the amendment was a risk of transmission of borne blood Congress, majority opinion allows em- HIV). pathogens (including This issue facts, ployers to elevate ignorance fear over placed any transcended HIV however and information, over mythology over medi- agents at risk for transmission of doing, majority opinion cine. so Hepatitis agents. such as B and C other places oppressive weight of discrimina- practice I should have believe firmly employers tion on the side of stopped general been control infection thereby destroys Congress the balance creat- grounds anything than due rather ed. unique to HIV. (Letter Baumgartner J.A. at 195 from Dr. reasons, foregoing respectfully For the I 2) 5/9/96, attorney (emphasis Lubben of dissent. added). Accordingly, bleeding sharing employees, providing
tools all far from
legitimate purpose requiring business alone, examination instead
provides further evidence discrimina-
tory in singling intent of Prevo’s out particular disability.
because of If Pre-
vo’s was so concerned about the health of co-workers, customers,
Sharp, his adopted safety applica-
would have measures notes is a “[e]ven direct objective information, vant threat, long as a reasonable accommoda- reassigning Sharp pru- assumed that was the threat, tion can be made eliminate that Yet, thing assumptions dent to do. our often employee may employed.” Maj. slip remain fears, prejudices, find comfort in our id.). op. (citing at 1095 turn, fears, ignorance. prejudices, our According regulations: to the EEOC’s ignorance often manifest themselves in discriminatory conduct. And it is this poses dis- The determination that an individual criminatory spe- conduct that the ADA was a ‘direct threat’ shall be on an based indi- majority requiring medically 3. The judgments.” states that Prevo’s to on reasoned and sound Arline, County School Bd. Nassau v. 480 U.S. reassigning Sharp obtain information before 273, 284-85, 1123, 1129, 107 S.Ct. 94 L.Ed.2d impose upon duty “would Prevo's to become (1987) (discussing § 504 of the Rehabilita- expert in the field of HIV transmission and Act, ADA). all, precursor tion to the After if Maj. slip op. control.” at 1097. On the con- store, expand Prevo wanted to he would first trary, requirement designed such a to ensure architect, contractor, engineer call an before employers acting that fear, are on fact rather than allowing begin working. the construction crew to ignorance, information rather than Yet, making telephone those calls would not mythology. medical evidence rather than As the architecture, expert make him an tion, construc- Supreme explained, carefully ”[t]he Court Act is Instead, engineering. telephone those replace structured to such reflexive reactions to provide calls would him with information to perceived handicaps actual or with actions based make rational rather than rash decisions. (HIV) eney of the individual’s virus working vidualized assessment infected individual safely perform present ability to the essen- pose any a food service area does not threat, job. This assessment tial functions of of transmission of infection and needs on a reasonable medical shall based in employment.” no restriction J.A. at 194 (Letter on the most judgment Lubben, that relies current Baumgartner from Dr. knowledge 1). on the Prevo’s, 5/9/96, best attorney and/or Grant-