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Abstract

Anne, a surgical technician at a local hospital, recently learned that she was HIV-positive. She works in the emergency room and, as a part of her job, she hands surgical instruments to doctors performing emergency surgery. It is a fast paced and unpredictable environment. Her hands often come in contact with sharp instruments. Although Anne has never put her hands into a patient's body cavity, there is a remote possibility that she may need to do so in the future. There is always a possibility, however small, that she will cut herself and come into blood-to-blood contact with a doctor or patient. The hospital learns from an anonymous source that Anne is HIV-positive and tells her that she must accept a clerical position or be fired. The administration claims that using sharp instruments and patient contact are integral components of her job and that the use of gloves will not mitigate the danger because surgical instruments can pierce gloves and blood-to-blood contact is theoretically possible. She refuses to leave her current position and is fired. Is she entitled to relief under the Americans with Disabilities Act (ADA)? The answer to this question may depend on where you live because, although the ADA prohibits discrimination based on an individual's disability, there is an exception to the prohibition against discrimination if the individual's disability poses a direct threat to the health and safety of others. In Bragdon v. Abbott, the Supreme Court held that HIV could be considered a disability under the ADA. However, the Court has not answered the question of what constitutes a direct threat. Because the Supreme Court did not resolve the direct threat matter in Bragdon, questions about the level of evidence necessary to establish a direct threat exist. What constitutes a risk? What does the term “significant” mean? How does one determine when a “significant risk” is present? When does reasonable accommodation eliminate the significant risk? Does the type of employment impact whether or not a significant risk exists? If so, how can a direct threat be eliminated? This Comment analyzes the protective legislation for individuals with disabilities, the legislative history, the codification of the direct threat exception, and Supreme Court precedents to show that Congress intended to enact a direct threat exception that requires strong, objective medical evidence in an effort to protect individuals with disabilities, including those who are HIV-positive, from unwarranted prejudice.

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