Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.