Benjamin R. v. Orkin Exterminating Co., Inc., 19277

• Decision Date: 08 March 1990
• Docket Number: No. 19277,19277
• Citation: 390 S.E.2d 814,182 W.Va. 615
• Court: West Virginia Supreme Court
• Parties: , 53 Empl. Prac. Dec. P 39,859, 58 USLW 2618, 2 A.D. Cases 389 BENJAMIN R. v. ORKIN EXTERMINATING COMPANY, INC.

Page 814

390 S.E.2d 814

182 W.Va. 615, 53 Empl. Prac. Dec. P

39,859, 58 USLW 2618,

2 A.D. Cases 389

BENJAMIN R. v. ORKIN EXTERMINATING COMPANY, INC.

No. 19277.

Supreme Court of Appeals of West Virginia.

March 8, 1990.

Concurring Opinion March 9, 1990.

Syllabus by the Court

A person at any stage of infection with the human immunodeficiency virus, including a person who has tested positive for the antibodies to such virus but who is asymptomatic, is a person with a "handicap" within the meaning of W.Va.Code, 5-11-3(t) [1981].

Patrick S. Cassidy, O'Brien, Cassidy & Gallagher L.C., Wheeling, for Benjamin R.

William D. Wilmoth, Schrader, Stamp, Byrd, Byrum & Companion, Wheeling, Martha Perrin, Ogletree, Deakins, Nash, Smoak & Stewart, Atlanta, Ga., for defendant.

William D. Turner, Crandall & Pyles, Charleston, for amici curiae, Charleston Aids Network, et al.

McHUGH, Justice:

This case is before this Court upon a certified question from the United States District Court for the Northern District of West Virginia, pursuant to W.Va.Code, 51-1A-1 to 51-1A-12 [1976], the Uniform Certification of Questions of Law Act. The certified question involves whether a person who tests positive for the human immunodeficiency virus antibodies has a "handicap" within the meaning of the West Virginia Human Rights Act as effective prior to the 1989 amendment thereto. For the reasons discussed below, we answer in the affirmative.

I

Benjamin R., the plaintiff in the underlying action, commenced work in May, 1986, as a pest control inspector for the defendant, Orkin Exterminating Company, Inc. ¹ In January, 1987, he tested "seropositive" in blood tests for the human immunodeficiency virus ("HIV") antibodies, a clinical precursor to acquired immune deficiency syndrome ("AIDS"), the last phase of the incurable HIV disease. HIV is a suppression of the human body's immune system, and the complications resulting from HIV are eventually fatal in virtually every case. The virus cannot survive outside of white blood cells; if exposed to the air it will die. HIV is communicable by certain types of contact but cannot be transmitted by casual contact. E.g., Leckelt v. Board of

Commissioners of Hospital District No. 1, 714 F.Supp. 1377, 1380 (E.D.La.1989). ²

The plaintiff told his supervisor about the HIV test results in July, 1987. The plaintiff claims he was discharged, in August, 1987, because he has HIV. The defendant claims the plaintiff voluntarily resigned from work to stay with relatives in South Carolina. Acting upon the plaintiff's complaint of employment discrimination on the basis of a handicap, the West Virginia Human Rights Commission decided, pursuant to W.Va.Code, 5-11-13(b) [1983], to issue to the plaintiff a notice of his right to sue in a state circuit court. The plaintiff thereafter brought an employment discrimination action against the defendant in the Circuit Court of Ohio County, West Virginia. The defendant, pursuant to federal law, removed the action to the United States District Court for the Northern District of West Virginia. After some discovery the defendant moved for summary judgment on the ground that the plaintiff, as a matter of West Virginia law, was not handicapped. The federal court, finding no controlling precedent decided by this Court, certified the following question to us:

Whether, as a matter of West Virginia law, a person who tests positive for the human immunodeficiency virus (HIV positive) is handicapped within the meaning of W.Va.Code § 5-11-3(t)?

II

The West Virginia Human Rights Act, W.Va.Code, 5-11-1 to 5-11-19, as amended, contains a declaration of policy, the pertinent part of which is as follows: "It is the public policy of the state of West virginia to provide all of its citizens equal opportunity for employment, ... Equal opportunity in the area[ ] of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... handicap." W.Va.Code, 5-11-2 [1981]. ³ In furtherance of this policy W.Va.Code, 5-11-9 [1981] provides, in relevant part:

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, ...

(a) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is ... handicapped[.] ⁴

The term "discriminate" or the term "discrimination" means "to exclude from, or fail or refuse to extend to, a person equal opportunities because of ... [a] handicap[.]" W.Va.Code, 5-11-3(h) [1981, 1989].

The term "handicap" means "any physical or mental impairment which substantially limits one or more of an individual's major life activities." W.Va.Code, 5-11-3(t) [1981]. Therefore, the statutory definition of "handicap" at the time in question had two basic requirements: (1) a "physical or mental impairment" (2) which substantially limits one or more "major life activities." ⁵

The West Virginia Human Rights Act, as effective at the time in question, did not define "physical or mental impairment" or "major life activities." The rules of the West Virginia Human Rights Commission, based upon the federal regulations under the Federal Rehabilitation Act of 1973, as amended, do provide definitions of these terms. ⁶

"Physical impairment" means "any physiological disorder or condition or cosmetic disfigurement or anatomical loss or abnormality affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic [blood] and lymphatic." 6 W.Va.Code of State Rules § 77-1-2.2 (1982) (emphasis added). Another definition provided is that a "physical or mental impairment"

includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, autism, multiple sclerosis, cancer, diabetes, heart disease, obesity, drug addiction, tobacco addiction and alcoholism. However, use or abuse of alcohol, tobacco or drugs in the absence of medically verifiable addiction does not constitute a 'Physical or Mental Impairment.'

6 W.Va.Code of State Rules § 77-1-2.4 (1982) (emphasis added).

Finally, the term "major life activities" is defined in a noninclusive manner; it "includes [not "means"] communication, ambulation, self-care, socialization, learning, vocational training, employment, transportation and adapting to housing." 6 W.Va.Code of State Rules § 77-1-2.5 (1982) (emphasis added). ⁷ HIV, even during the asymptomatic phase (CDC Group II, see supra note 2), is a "physiological disorder ... affecting ... [the] hemic [blood] and lymphatic" body systems. 6 W.Va.Code of State Rules § 77-1-2.2 (1982). As Surgeon General Koop stated in a July 29, 1988 letter to the United States Department of Justice, the CDC Group II phase involves

subclinical manifestations[,] i.e., impairments[,] and no visible signs of illness. The overwhelming majority of infected persons [in CDC Group II] exhibit detectable abnormalities of the immune system....

Accordingly, from a purely scientific perspective, persons with HIV infection are clearly impaired. They are not comparable to an immune carrier of a contagious disease such as Hepatitis B. Like a person in the early stages of cancer, they may appear outwardly healthy but are in fact seriously ill.

Our research discloses that the court in every reported case discussing the point has recognized that HIV, even during the asymptomatic phase, is an actual, physical impairment under a federal or state statute or regulation defining such an impairment in terms identical or similar to this state's administrative rule quoted immediately above, namely, 6 W.Va.Code of State Rules § 77-1-2.2 (1982). See, e.g., Baxter v. City of Belleville, 720 F.Supp. 720, 725, 729 (S.D.Ill.1989) (immunological deterioration begins on first day of infection with HIV) (also could be a perceived handicap, that is, within third part of statutory definition of "handicap," involving a person who is "regarded as" having such an impairment, see supra note 5, due to unfounded fear of contagion from casual contact); Leckelt v. Board of Commissioners of Hospital District No. 1, 714 F.Supp. 1377, 1385 & n. 4 (E.D.La.1989) (seropositivity itself an impairment) (also could be a perceived handicap); Ray v. School District of DeSoto County, 666 F.Supp. 1524, 1529, 1536 (M.D.Fla.1987) (when HIV enters body it begins to attack certain white blood cells) (seropositive students granted preliminary injunction enabling them to remain in regular classroom); Thomas v. Atascadero Unified School District, 662 F.Supp. 376, 379, 381 (C.D.Cal.1987) (individuals in all four of CDC classifications suffer from impairments to their physical systems and are "handicapped"); Local 1812, American Federation of Government Employees v. United States Department of State, 662 F.Supp. 50, 54 (D.C.Cir.1987) (HIV-infected persons are physically impaired, due to measurable deficiencies in their immune systems, even where disease symptoms have not yet developed); Raytheon Co. v. Fair Employment & Housing Commission, 212 Cal.App.3d 1242, 1249, 261 Cal.Rptr. 197, 201 (1989) (HIV disease is a progressive immune system disease, and AIDS is end stage of this gradual immune system deterioration); Cronan v. New England Telephone Co., 41 Fair Empl.Prac.Cas. 1273, 1275, 1276 (Mass.Super.Ct.1986) (HIV within definition of physical impairment regardless of whether person is suffering any adverse physical effects) (also could be a perceived handicap); Doe v. Coughlin, 71 N.Y.2d 48, 57, 518 N.E.2d 536, 542, 523 N.Y.S.2d 782, 788 (1987) (once acquired, HIV undermines human body's ability to combat infection, is incurable and is almost always fatal), cert. denied, 488 U.S....