664
Opinion of OTMConnor, J.
at 654. While it is not entirely certain whether these dental workers contracted HIV during the course of providing dental treatment, the potential that the disease was transmitted during the course of dental treatment is relevant evidence. One need only demonstrate "risk," not certainty of infection. See Arline, supra, at 288 (" '[T]he probabilities the disease will be transmitted' " is a factor in assessing risk). Given the "severity of the risk" involved here, i. e., near certain death, and the fact that no public health authority had outlined a protocol for eliminating this risk in the context of routine dental treatment, it seems likely that petitioner can establish that it was objectively reasonable for him to conclude that treating respondent in his office posed a "direct threat" to his safety.
In addition, petitioner offered evidence of 42 documented incidents of occupational transmission of HIV to health care workers other than dental professionals. App. 106. The Court of Appeals dismissed this evidence as irrelevant because these health professionals were not dentists. 107 F. 3d 934, 947 (CA1 1997). But the fact that the health care workers were not dentists is no more valid a basis for distinguishing these transmissions of HIV than the fact that the health care workers did not practice in Maine. At a minimum, petitioner's evidence was sufficient to create a triable issue on this question, and summary judgment was accordingly not appropriate.
Justice OTMConnor, concurring in the judgment in part and dissenting in part.
I agree with The Chief Justice that respondent's claim of disability should be evaluated on an individualized basis and that she has not proved that her asymptomatic HIV status substantially limited one or more of her major life activities. In my view, the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of
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