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Jacquie Brennan: Hello and welcome to the Disability Law Lowdown. My name is Jacquie Brennan and I’m your host for today’s show.

Today we’re going to have an interview with Mitchell Katine. Mitchell Katine has practiced law in Houston for more than twenty years. His practice is concentrated in matters involving real estate litigation, disability and insurance matters and employment disputes, especially those that are related to HIV/ AIDS and gay, lesbian, bisexual and transgender issues. Mitchell was local counsel for John Lawrence and Tyron Garner in the United Sates Supreme Court case Lawrence v. Texas that overturned sodomy laws throughout the United States.

He helped create numerous gay, lesbian, bisexual and transgender organizations in Houston including the State Bar of Texas section on sexual orientation and gender identification issues. He is also a frequent lecturer and author on topics dealing with HIV, the Americans with Disabilities Act and gay and lesbian civil rights. Most importantly, Mitchell and his partner, Walter, are the proud parents of two adopted children, Sabrina and Sebastian who are both five years old.

Today we’re going to be discussing HIV and discrimination issues related to that. As you already know, maybe, if you’re listening to this webcast, the ADA covers different kinds of disabilities and to be covered by the ADA, a person with a disability has to meet the ADA definition of disability which is that they must have a physical or mental impairment that substantially limits one or more major life activities or have a record of such impairment or be regarded as having such an impairment.

So, with that background, I’m going to ask Mitchell a few questions.

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Jacquie: So, Mitch, tell me a little something about your background and what got you interested in disability law and in particular laws that relate to HIV status.

Mitchell Katine: Well, I graduated in 1985 from South Texas College of Law and really, at that time in the history of our country and the history of the disease, HIV was coming to the surface and flourishing and it was really a desire as a new lawyer to want to hep people on a new frontier. There weren’t a lot of doctors or lawyers who knew much about HIV and it was really out of a need to help out in unchartered waters.

As a gay lawyer, I had many friends who were contracting HIV and really it was a crisis time in the late eighties. People didn’t really know what they were doing or what was happening. I just saw a need and I needed to do what I could.

Jacquie: Right. And there are so many people who are glad that you did do that.

Now, in employment situations, when it comes to HIV, the most frequently asked question that we get at the Southwest ADA Center is “Should I disclose to my employer that I’m HIV positive?” And of course I know that the answer is going to depend on the individual situation, but, in general, could you discuss the pros and cons of disclosure in an employment situation?

Mitchell: Sure. There’s really not any laws that require disclosure so it’s really up to the individual when and if they want to make disclosure of their disability status. HIV is kind of a hidden disability for most people. You don’t know someone has it unless you discover it in some way or they disclose it to you.

For most settings, nondisclosure is really the recommended approach because, number one, there’s usually not a reason to disclose it and, number two, if you make disclosure, you may have adverse reactions from people based on their stereotypes and discrimination.

Two circumstances where disclosure is recommended or should be seriously considered are number one, you need a reasonable accommodation and you work at an employer that has fifteen or more employees and the second is if you think somehow your employer has already figured out that you have a disability, that you are HIV positive ,go ahead and make disclosure, again, if you’re pretty certain because then you have at least made that formal, you’ve put the employer on formal notice that you have a disability. So those are the two circumstances an individual should seriously consider it.

Jacquie: What would be some of the reasonable accommodations that employees with HIV might request?

Mitchell: Actually, reasonable accommodations for people with HIV are pretty inexpensive. One may be a modification of their schedule, just come in a little later in the mornings and work a little later in the afternoons so you can take your medication and let the immediate side effects subside, such as nausea and diarrhea. Or, in that same vein, a longer lunch period so that you can take your medication and have time to let it rest and settle in your stomach.

I represented a number of HIV positive used car salespeople and, believe it or not, it’s my understanding they often have fifteen minutes for lunch and that’s it. Often you need about an hour to rest and take your medication so flexible schedule, again not working any less, just having your schedule accommodate it.

Other things are having a soft chair, a cushioned chair, due to loss of body fat, having a chair located closer to the restroom, having a disabled person’s parking spot near the place of work, some lighting issues if you have vision problems. Those are some that just come to mind, kind of the physical accommodations.

In that same regard, it’s important for people with HIV and other disabilities that may result in them missing that they take full advantage of the Family Medical Leave Act which can be used concurrently with the Americans with Disabilities Act, two different federal laws operating simultaneously.

Jacquie: That’s interesting. Now, with FMLA, I guess you would be definitely disclosing, I mean that you’d have to disclose to get that leave. Is that right?

Mitchell: Both laws.

Jacquie: The other law that we’re really talking about, which I guess we didn’t sort of introduce is the Americans with Disabilities Act. Now, is HIV always a disability under the ADA?

Mitchell: It’s not. There is no per se disability for any condition. A disability under he Americans with Disabilities Act is a a physical or mental impairment that substantially limits one or more major life activities of the individual. That is usually determined on a case by case basis because different diseases affect different people in different ways. So people with HIV, according to the Supreme Court decision of Abbott v Bragdon, are considered to have a physical impairment from the moment of infection, but whether that impairment substantially limits one or more major life activities of the person is based on an individual assessment.

It’s also important to note, while we’re talking about a disability, that a disability is determined, at least at this point, unless the ADA is amended, is determined after consideration of mitigating measures. Now this may help people with HIV because a mitigating measure is included or considered medication, as well and sometimes medication has the effect on someone with HIV of substantially limiting one or more major life activities after their medication.

So it is not a per se disability and it is based on person by person. Of course we can also mention disability, the definition of disability, includes both perceived disability and a record of a disability but typically those are not as strong as someone who actually has a disability.

Jacquie: Any final tips for a person who who is HIV and is thinking of returning to work or is maybe just entering the workforce?

Mitchell: Well, I think it’s a good idea for them to consult with their doctor and make sure that they understand the effect this may have on their benefits, particularly if someone is on Social Security. Social Security does provide a nine month trial work period and Social Security is very good about working with people returning to the workforce. Even after the nine months there are many things that can assist someone so they should talk to a lawyer who’s familiar with benefits and Social Security and certainly if I can provide any assistance or direct someone to the right place, they can call me either at my direct line which is 713-808-1001 that’s 713-808-1001 or send me an email at mkatine@lawkn.com. Of course, Jacquie, maybe they can call you as well.

Jacquie: Certainly. People can call us for information all the time and I’ll be giving that number in a minute. Thank you so much for talking with us today and being part of our webcast series. I know people will get a lot out of this information and I really appreciate it. Thanks, Mitchell.

Mitchell: It’s my pleasure. Thank you.

Jacquie: Okay, bye bye.

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Jacquie: I hope you enjoyed this podcast and that you’ll tune in again to the Disability Law Lowdown which is hosted by the ADA Centers, a national network of ten Disability Business Technical Assistance Centers offering training, materials and technical assistance on the Americans with Disabilities Act and other related disability laws.

We can be reached be reached by calling 1-800-949-4232.

The ADA Centers are funded by a grant from NDRR.

Go to our webcast at dll.ada-podcast.com to listen to our archived podcasts and to get transcripts of the podcasts.

Subscribe for free to the Disability Law Lowdown on the website or through iTunes to make sure you never miss an episode.

Thanks again for tuning in and have a dazzling day.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.