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Estate of Mauro by & Through Mauro v. Borgess Med. Ctr. - 137 F.3d 398 (6th Cir. 1998)


To show that one is "otherwise qualified," neither the Americans With Disabilities Act, 42 U.S.C.S. § 12101 et seq., nor the Rehabilitation Act, 29 U.S.C.S. § 701 et seq., requires the elimination of all risk posed by a person with a contagious disease. A person with an infectious disease "who poses a significant risk of communicating an infectious disease to others in the workplace," is not otherwise qualified to perform his or her job. If the risk is not significant, however, the person is qualified to perform the job. The Equal Employment Opportunity Commission guidelines, 29 C.F.R. § 1630.2(r) (1996), provide further that: An employer, however, is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e. high probability, of substantial harm; a speculative or remote risk is insufficient.


Appellant William C. Mauro, an operating room technician employed by appellee Borgess Medical Center (“Borgess”), was found to be infected with human immunodeficiency virus, or HIV, the virus causing AIDS. Because of Borgess’s concern that Mauro might expose a patient to HIV, Borgess created a task force to determine whether an HIV-positive employee could safely perform the job responsibilities of a surgical technician. The task force determined that a job requiring an HIV-infected worker to place his or her hands into a patient’s body cavity in the presence of a sharp instrumentation, represented a direct threat to patient care and safety, and thus, concluded that Mauro could no longer serve as a surgical technician. Mauro was eventually laid off. Consequently, Mauro filed the present suit, alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994), and the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1994). The district court granted Borgess’s motion for summary judgment, determining that Mauro was a direct threat to the health and safety of others that could not be eliminated by reasonable accommodation. The district court concluded that Borgess took no illegal action in removing Mauro from his position. Mauro appealed, arguing that as a surgical technician at Borgess he did not pose a direct threat to the health and safety of others and that therefore the district court erred in granting summary judgment to Borgess.


By removing an HIV-positive employee from his position as a surgical technician, did the employer violate the Americans Disabilities Act and/or the Rehabilitation Act?




In order to recover under the Rehabilitation Act or the Americans with Disabilities Act, a plaintiff must establish that he or she was “otherwise qualified” for the job at issue. A person was “otherwise qualified” if he or she can perform the essential functions of the job in question. A disabled individual, however, was not “qualified” for a specific employment position if he or she posed a “direct threat” to the health or safety of others which cannot be eliminated by a reasonable accommodation. The case of Arline laid down four factors to consider in the analysis of whether a plaintiff was otherwise qualified to perform the essential functions of the job in question: (i) the nature of the risk (how the disease was transmitted), (b) the duration of the risk (how long was the carrier infectious), (c) the severity of the risk (what may be the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm. The parties agreed that the first three factors of the Airline test all indicated that Mauro posed a significant risk to others. In determining whether the fourth factor existed, the Court deferred to the reasonable medical judgments of public health officials, as what Airline instructed. The Court noted that the public health official’s report determined that the workers who performed invasive, exposure-prone procedures posed a greater risk of skin-piercing injury. The Court found that all the evidence, together with the uncontradicted fact that a wound causing an HIV-infected surgical technician to bleed while in a body cavity could have catastrophic results and near certainty of death, indicated that Mauro was a direct threat to the health and safety of others. Thus, the Court affirmed the decision of the district court.

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