In E.E.O.C. v. Lee’s Log Cabin Restaurant, No. 06-3278 (7^th Cir., October 6, 2008), the Court of Appeals for the Seventh Circuit upheld a lower court’s grant of summary judgment, dismissing the ADA claims brought on behalf of a job applicant who was rejected because of her HIV+ status.

The Complainant applied in March 2004 for a waitress job at Defendant’s restaurant. It appeared that the manager who reviewed her application recognized her as the complaining party in another EEOC case involving an HIV+ claim and noted such on her form. She was not hired.

The E.E.O.C. filed suit, claiming unlawful refusal to hire on account of HIV status. In responding to the Defendant’s motion to dismiss, however, the Commission changed course and argued that the basis of discrimination was that Complainant had AIDS. It provided evidence to establish that her AIDS physically limited her major life activities in order to establish her identity as an "individual with a disability" under the ADA. The lower court granted summary judgment to the defendant. The District Court noted that the E.E.O.C.’s complaint only asserted discrimination based on HIV+ status, not AIDS, and that there was a significant difference between the two. The Court held that the evidence that AIDS limited the Complainant’s major life activities was therefore not relevant to the question of whether she had a disability under the ADA. Thus, the Court held that the E.E.O.C. failed to meet its burden to establish that her HIV+ status was a disability under the particular circumstances of the case.

The Court of Appeals for the Seventh Circuit affirmed. The Court noted that it did not have to decide whether or not HIV and AIDS are synonymous for all purposes under the ADA, and addressed only the E.E.O.C.’s shift of position during the litigation: "We note only that they are not synonymous for the limited purpose relevant to the determination at issue here--whether to entertain the EEOC's belated alteration of the factual basis of its claims--and the district court's judgment in this regard was manifestly reasonable."

The impact of this decision, however, may be short-lived. The ADA Amendments Act of 2008, which becomes law January 1, 2009, broadens the definitions of individuals with disabilities covered by the Act. It will cover not only individuals with an impairment, but those “ being regarded as having such impairment.” Certainly, the burden will remain upon the Plaintiff in an ADA case to establish that he or she is a qualified individual with a disability – but he or she will be able to submit a wider range of evidence in order to meet that burden.