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Unformatted text preview: bility on the part of Prevo's, we
do not determine whether its actions warrant an award of punitive damages; therefore, we
VACATE the district court's award of punitive damages. DISSENTBY: KAREN NELSON MOORE 223 DISSENT: KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent
from the majority opinion because I believe that the Americans With Disabilities Act
prohibited Prevo's Market from requiring Sharp to submit to a medical examination under
the circumstances of this case.
The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., ranks as one of
the most important civil rights statutes passed in this century. Among other things, the
ADA protects millions of disabled Americans from discrimination in employment. Like
other great civil rights statutes, prior to its passage the ADA was subject to last minute
amendments that threatened to limit severely the size of its protective umbrella.
Representative [**31] Chapman offered one such amendment. His proposed amendment
provided as follows:
(d) Food Handling Job. It shall not be a violation of this act for an employer to refuse
to assign or continue to assign any employee with an infectious or communicable disease
of public health significance to a job involving food handling, provided that the employer
shall make reasonable accommodation that would offer an alternative employment
opportunity for which the employee is qualified and for which the employee would
sustain no economic damage.
136 Cong. Rec. H2471-01, 2478 (daily ed. May 17, 1990). While acknowledging that the
Centers for Disease Control ("CDC") has never found a case where Acquired Immune
Deficiency Syndrome ("AIDS") or Human Immunodeficiency Virus ("HIV") had been
transmitted by an infected worker handling food, he nevertheless argued that "the reality
is that many Americans would refuse to patronize any food establishment if an employee
were known to have a communicable disease." Id. (statement of Rep. Chapman).
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- Spring '08