Fact Sheets: Discrimination & HIV/AIDS
December 1, 1999
Do HIV-positive people have any legal protection against discrimination?
Individuals with diabilities are protected under the Americans with Disabilities Act (ADA). Persons with HIV, whether they have outwardly manifested symptoms or not, are considered to have physical impairments that substantially limit one or more major life activities. Therefore, they are covered by the ADA.
The ADA gives federal civil rights protection to individuals with disabilities. It also guarantees equal opportunity in public accommodations, employment, transportation, state and local government services and telecommunications. Recent court decisions and pending legislation may affect this protection of HIV-positive people against discrimination.
Can people refuse to rent to me because I am HIV-positive?
No. The Fair Housing Amendments Act of 1988 prohibits housing discrimination against persons with disabilities, including persons with HIV/AIDS. This act is enforced by the Fair Housing & Equal Opportunity Office.
Can a restaurant or hotel refuse me service because I have HIV/AIDS?
Under the ADA, all people, including those with disabilities, are given equal opportunity to use or enjoy a public accommodation's goods, services and facilities. Public accommodations include restaurants, hotels, theaters, doctors' offices, dentists' offices, hospitals, retail stores, health clubs, museums, libraries, private schools and day care centers. An example of discrimination would include a doctor or a dentist who categorically refuses to treat all persons with HIV/AIDS.
Can a public accommodation deny service to a person with HIV/AIDS by alleging a direct threat to the health and safety of others?
Almost never. Persons with HIV/AIDS will rarely, if ever, pose a direct threat in a public accommodation.
Are all health care providers required to treat all persons with HIV/AIDS?
No. A health care provider is only required to treat a person who is seeking treatment or services within that provider's area of expertise. If the patient falls outside the health care provider's area of specialization, that provider can refer the patient with HIV/AIDS to another provider in an appropriate specialty.
What services do public accommodations have to provide to persons with HIV/AIDS?
The ADA requires public accommodations to remove all physical barriers to access in their existing facilities when it is easily accomplishable and affordable to do so. In addition, a public accommodation is required to provide auxiliary aids and services where necessary to ensure effective communication with individuals with impairments whenever reasonably possible.
The impairment can be one that the person has had from birth, or one that has recently developed as a result of an AIDS-related complication. Persons with HIV/AIDS may have less strength to open doors, or they may tire more easily when walking or climbing stairs. They may use a wheel chair, electric scooter, or other device for mobility purposes.
Will having HIV affect my ability to be hired?
No. Employers cannot fail to hire qualified people simply because they fear the individual will become sick in the future. The hiring decision must be based on the individual's ability at the current time. In addition, employers cannot decide against hiring qualified people with HIV/AIDS because they are afraid of higher medical insurance costs, worker's compensation costs or absenteeism.
Will my HIV status be recorded in my employee file?
Yes. However, the ADA requires that medical information be kept confidential. The information must be kept apart from general personnel files as a separate, confidential medical record available only under limited conditions.
Can an employer ask about an applicant's or employee's HIV status?
No. An employer may not ask or require a job applicant to take a medical examination before making a job offer. Neither can an employer ask about a disability or the nature or severity of a disability before making a job offer. An employer can, however, ask about the ability to perform specific job functions vital to the position.
HIV-positive status alone, without some complication, can almost never be the basis for a refusal to hire after a post-offer medical examination. An employer may make a job offer conditional on the satisfactory result of a post-offer medical examination or inquiry if this is required of all new employees in the same job category.
Does an employer have to provide health insurance to an employee with HIV/AIDS?
The ADA prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees and/or from entering into contracts with health insurance companies that discriminate on the basis of disability.
Insurance distinctions that are not based on disability and that are applied equally to all insured employees do not violate the ADA. However, recent court rulings regarding medical caps on health insurance put this protection in question.
Are there other laws that cover employment?
Equal Employment Opportunity Laws (EEOP) cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. They also cover private and public employment agencies, labor organizations and joint labor management committees controlling apprenticeship and training.
What employment practices are covered by the ADA?
Practices include hiring, firing, job application procedures, job interviews, job assignment, training and promotions and wage benefits, including health insurance, leave and other employment-related activities.
Employers who know an employee is HIV-positive are required to make "reasonable accomodations" for that person.
What is a "reasonable accommodation"?
A "reasonable accommodation" is any modification or adjustment to a job, application process, or work environment that will enable the qualified applicant or employee with a disability to perform the essential functions of a job, or enjoy the benefits and privileges of employment.
For example, if an HIV-infected person required two hours off, bimonthly, for doctor visits, an employer might allow him/her to make up the time by working late on those days. An employer is not required to make an accommodation if it would impose an undue hardship on the operation or business.
When is an employer required to make a reasonable accommodation?
An employer is only required to accommodate a "known" disability of a qualified applicant or employee. An employee must make the employer aware of the need for a "reasonable accommodation."
If the employee does not want to disclose that he/she has HIV or AIDS, it may be sufficient for the employee to say that he or she has an illness or disability covered by the ADA and needs specific accommodations. However, the employer can require medical documentation of the disability.
Are health and safety issues valid reasons for refusing to hire or retain a person who has HIV/AIDS?
Yes, but only under limited circumstances. If it is shown through objective, medically supportable methods that an individual poses a "direct threat" and can cause substantial harm in the work place, it is possible that an employer can decide not to hire or retain an individual due to his/her medical status.
However, transmission of HIV will rarely be a legitimate "direct threat" issue since it is medically established that HIV can only be spread through the transmission of certain body fluids and not through casual contact.
What can someone do who believes he or she is being discriminated against because of HIV status?
Contact the US Department of Justice within 180 days of when the discrimination occurred:
US Department of Justice, Civil Rights Division, Disability Rights Section, PO Box 66738, Washington, DC 20035-6738, http://www.usdoj.gov.
If the discrimination is employment-related, contact the Equal Employment Opportunity Commission at (800) 669-4000 (voice) or (800) 669-6820 (TDD).
For additional information:
ADA Information Line
Job Accomodation Network (JAN)
Fair Housing Information Clearinghouse
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This article was provided by American Association for World Health. It is a part of the publication Be a Force for Change.