Board of Nassau County, Fla. v. Arline

In Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), the school board sought to shield its treatment of a teacher with tuberculosis from review under Section 504 of the Rehabilitation Act of 1973. <#fn11> Id. at 276, 107 S.Ct. 1123. The school board argued that its treatment of Arline was not based on her tuberculosis as such, but on her contagiousness. Id. at 281-82, 107 S.Ct. 1123. The Supreme Court rejected this reasoning, opining that "it would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment." Id. at 282, 107 S.Ct. 1123. A fortiori, if the law does not recognize a distinction between a disability and its possible effect on others (i.e., contagiousness), the law does not recognize a distinction between a disease and its effect on the afflicted individual himself. As the Supreme Court recognized: Congress extended coverage ... to those individuals who are simply "regarded as having" a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection "a person with some kind of visible physical impairment which in fact does not substantially limit that person's functioning." Id. (quoting S. Rep. 93-1297, at 64). In Arline, the Court held that the issue of the threat to others posed by an employee with a communicable disease was properly analyzed as a question of whether the employee was "otherwise qualified." Arline, 480 U.S. at 287, 107 S.Ct. at 1130. The Court noted that a "person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk." Id. at 287 n. 16, 107 S.Ct. at 1131 n. 16. Arguably, in Arline, the question of whether the plaintiff could perform the core functions of a school teacher's job was separate from the question of whether she nonetheless posed a risk because of her communicable disease.