The beginning of a new year always seems to signal a time for sizing up. Our docket contains a number of new HIV-related cases, and we are continuing to build on our earliest tradition as a leader in AIDS discrimination litigation. While no amount of effort ever seems to feel like enough, we can take some measure of pride in the extent of the project's successful expansion of its litigation docket in one short year. At the same time, it is hard to feel even tempered satisfaction in the continued need for this work. As the newest additions to our docket demonstrate, employment discrimination -- particularly as a way to sever the lifeline of health care benefits -- is a primary problem for people living with AIDS. With court decisions on the Americans with Disabilities Act (ADA) emerging from the litigation pipeline in greater numbers, there also has been a recent, perceptible trend of courts using to a rigid, literal definition of the ADA's terms to narrow the pool of those who can sue.
Large employers have sought to limit the ability of ex-employees on COBRA or disability to sue for job-related discrimination, as have organizations representing their interests, such as the Equal Employment Advisory Council -- benignly named, but actively entering ADA litigation in a concerted effort to limit its protective scope for the disabled. Some argue that fired employees with asymptomatic HIV infection are not disabled enough to invoke the ADA; other have flipped the argument, insisting that those with AIDS and presumptive eligibility for SSI benefits are too disabled to be a qualified employee under the ADA.
In the midst of the horrors still visited on those living with this miserable virus, it can be unsettling to encounter what seems to be the waning interest in AIDS issues among people in the community outside the relatively small band of people that pursue AIDS advocacy. It is not always easy to know whether the truth behind that perception is good news or bad: are people simply worn out by the tragic, continuing toll of AIDS and the frequently- dashed hopes for a cure? Or is the redirection of energy away from AIDS issues also a recognition that this community is defined by more than AIDS, that dealing with this disease cannot be the constant, central focus of the fight for equality?
The answer, or achieving a comfortable balance, is not always so easy to master. But it is crystal clear that a community-wide commitment to battle HIV disease and the ugly symptoms of homophobia and discrimination which accompany and prolong it is of continuing importance. The duration and nature of this epidemic is, after all, a pernicious product of homophobia. While the fight for decent treatment -- in every sense -- of those with AIDS may not supplant the battles against anti-gay initiatives and for equal marriage rights that are central to the struggle for equality, neither can it be sublimated to them. Every win against an AIDSphobic employer, insurer or health care provider is a blow against homophobia, and an important part of moving the movement forward.
This article is an excerpt from the Winter 1996 edition of The Lambda Update, the tri-annual newsletter of Lambda Legal Defense and Education Fund.
Catherine Hanssens is the AIDS Project Director at Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.