(Solution Download) 1 Consider the similarities between the Court s analysis of the

1. Consider the similarities between the Court?s analysis of the public reaction to contagiousness in Arline (?Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness?) and the analysis it would have to undergo if Arline had AIDS as opposed to tuberculosis. Are there any differences? Where do you think any differences might be found in a court?s analysis of an employee with HIV?
2. Is it realistic to think that, as the employer here argued, the contagious aspect of a disease can be divorced from the consideration of the public of having the disease itself? Will an employer always run the risk of being sued in such a situation?
3. What type of policy could you develop that would instruct your managers about how to handle an employee with a contagious disease?

In determining whether a particular individual is handicapped as defined by the [Rehabilitation] Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. As we have previously recognized, these regulations were drafted with the oversight and approval of Congress; they provide an important source of guidance on the meaning of section 504. Within this statutory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of Dr. McEuen, Arline suffered tuberculosis ?in an acute form in such a degree that it affected her respiratory system,? and was hospitalized for this condition. Arline thus has a physical impairment as that term is defined by the regulations, since she had a ?physiological disorder or condition affecting her respiratory system.? This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline?s hospitalization for tuberculosis in 1957 suffices to establish that she has a ?record of . . . impairment? within the meaning of [the regulations] and is therefore a handicapped individual.


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