This holding perpetuates discrimination by allowing

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Unformatted text preview: MacArthur, in his deposition, testified that the odds of Sharp infecting a fellow produce worker were one in ten-million under normal circumstances. J.A. at 159. (MacArthur Dep.). n4 By comparison, he testified that infection of a patient by an HIV+ surgeon with her hands in the body cavity of the patient would be anywhere from one in forty-thousand to one in four-hundred-thousand depending on the study. J.A. at 158. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n4 He posited the fanciful hypothetical that if one of Sharp's co-workers had a fresh cut on his hand, held the wound wide open, and Sharp bled directly into it, then the likelihood of transmission would increase to one in three-thousand. J.A. at 160. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**44] The expert testimony suggests that the risk of infection to Sharp's co-workers is not significant. As a result, he does not present a direct threat to any of them. Yet, even if he did present a direct threat, he is still a "qualified worker" if he can be reasonably accommodated. 42 U.S.C. § 12113(3); 29 C.F.R. § 1630.2(r) (1997). There is no dispute that providing Sharp with steel gloves and his own separate knives were reasonable accommodations that would further reduce the likelihood and imminence of transmission. Maj. slip op. at 8 & n.6. 230 All of this expert testimony emphasizes the point that likelihood and imminence of infection could be determined without resort to a medical examination of Sharp. The majority focuses on parts of the testimony where both experts suggest that a medical examination would have been beneficial primarily to determine Sharp's intellect and personal hygiene habits. However, neither Dan Prevo nor anyone else had observed or reported any aberrations in Sharp's intellect or personal hygiene habits. Thus, Prevo's had no foundation for believing that a personalized medical examination of Sharp was necessary [*1103] to conduct the direct-threat analysis. From the [**45] foregoing analysis, I conclude that it is...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.

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