Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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EEOC v. LEE’S LOG CABIN  (October 6, 2008)

Korrin Stewart was diagnosed as HIV-positive when she was just fourteen years old. Shortly thereafter, she learned that it had actually developed into AIDS. At the age of eighteen, she applied for a server position at Lee’s Log Cabin (“Lee’s”). She was aware that the job had a 25-30 pound lifting requirement. Nevertheless, she stated on her application that she could lift no more than 10 pounds and that there were no accommodations that would allow her to perform that requirement of the job. After some time went by without a response from Lee’s, Stewart visited the restaurant and spoke with Zastrow, an assistant manager. In response to Zastrow’s question, Stewart admitted that she was the same person who had alleged that a prior employer had fired her when the employer learned that she was HIV-positive. Stewart also saw a copy of her application, on which appeared the notation “HIV+.” Lee’s did not offer the position to Stewart, ostensibly on the ground that she had no server experience and could not meet the lifting requirement. The EEOC filed suit, alleging that Lee’s violated the Americans With Disabilities Act (“ADA”). The EEOC alleged that Lee’s failed to hire Stewart because it learned that she was HIV-positive. About one month before trial, in response to Lee’s motion for summary judgment, the EEOC presented affidavits from Stewart and her doctors describing how AIDS affected her daily activities. The EEOC presented no separate evidence that HIV affected her daily activities. The district court refused to consider the affidavits because the EEOC had never pleaded the presence of AIDS. Without the affidavits, there was no evidence in the record of the effect of HIV on Stewart’s daily activities. The court granted summary judgment for Lee’s, also noting that a) there was no evidence that Lee’s knew Stewart had AIDS, and b) there was a question whether she met the “qualified individual” element of the statute because of the lifting requirement. EEOC appeals.

In their opinion, Judges Kanne and Sykes affirmed, Judge Williams dissenting. The majority started with the fundamentals. The ADA prohibits employment discrimination “against a qualified individual with a disability because of the disability.” Whether an individual is disabled is an individual inquiry into whether the impairment “substantially limits” the individual’s major life activities. The Court commented that the EEOC “complicated” the inquiry by attempting to refashion its claim as an AIDS claim late in the case. The Court called it a “major alteration” of the EEOC’s case. The Court focused on the Supreme Court’s Bragdon decision and its description of the development of the disease. Noting that there are significant symptomatic differences at different stages of the disease, the Court thought that whether Stewart was HIV-positive or had AIDS was highly relevant to the case. Once the Court concluded that the district court had not abused its discretion in disallowing the affidavits, it had little difficulty agreeing with the proposition that the record was devoid of evidence of the effect of HIV on Stewart’s major life activities.

The Court went on to address, as an alternative ground for affirming summary judgment, the issue of whether Stewart was a “qualified individual.” A “qualified individual” is a person who can perform the essential functions of the job, either with or without reasonable accommodations. The Court held that Stewart was not a “qualified individual,” given her statement in her application that she could not meet the lifting requirement of the job, even with an accommodation.

Judge Williams dissented. She pointed out that HIV and AIDS are not different conditions. Rather, AIDS is simply the final stage of a single disease – HIV. Different stages of the disease are also not necessarily accompanied by different symptoms. Stewart never ceased being HIV-positive. The evidence of the effect of AIDS on Stewart’s daily activities also described the effect of HIV on her activities. Judge Williams compared it to a cancer patient progressing through different stages of the disease. She believed that the EEOC had sufficiently presented evidence that Stewart’s disease substantially limited her major life activity. She also believed that there were questions of fact with respect to the “qualified individual” issue. There was a dispute as to whether the lifting requirement was truly an essential function of the job. Stewart’s testimony that her lifting restriction was temporary also raised a question of fact with respect to her application answers.