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Compliance With Americans with Disability Act: Not For Government?

By Catherine Hanssens, Esq., AIDS Project Director, Lambda Legal

November 1996

Six years after the adoption of the American with Disabilities Act (ADA), a surprising number of federal, state, and local agencies seem either unaware of its requirements, or intent on making an end run around it. Lambda AIDS Project activities in two areas illustrate the problem.

Despite last December's White House AIDS Summit and the administration's voiced commitment to end discrimination against people with HIV/AIDS, the federal government persists in HIV screening or exclusion of applicants to a range of programs and jobs, such as the military, the Peace Corps, the Job Corps, and even in Federal Aviation Administration criteria for continued commercial pilot licensing. Every one of these discriminatory policies could be eliminated with a Presidential pen stroke.

In the case of the Job Corps, White House AIDS officials and advocates praised the job-training program for young people from low-income families for having instituted a "pilot program" that was to culminate with the end of HIV screening of applicants by September 1996. Lambda, working in collaboration with Peter Ciccino of the Urban Justice Center in New York, learned that in fact the pilot project was the beginning of planned expansion of involuntary testing. Job Corps officials now confirm that they plan to extend testing to students not using the housing component of the program in addition to the residential students currently tested. Catherine Hanssens is working with the Urban Justice Center to pursue negotiations with the Job Corps toward ending all involuntary testing.

Lambda also learned earlier this year that in New York City, the Mayor's Advisory Committee on the Judiciary, which reviews applications for appointments to certain local courts, required applicants to answer a series of detailed, personal questions about their current and past health, what the questionnaire calls 'physical deformities,' medications, and even contemplated surgery -- in order to be considered for a judicial appointment. After Lambda's inquiry about the judicial screening policy, the Advisory Committee voluntarily revised its application to eliminate those questions.

Lambda then broadened its examination to state review committees around the country where judicial questionnaires are used. Responses and sample applications obtained from 25 different state committees revealed that 20 applications, or 80 percent, require applicants to answer inappropriate questions about their health status and medications, or even authorize release of their complete medical and mental health records prior to consideration of their qualifications to serve as a judge. The ADA squarely prohibits these types of inquiries, which would likely discourage many persons with disabilities or health concerns from applying. Further, such application questions make it likely that persons revealing disfavored disabilities who do not receive appointments will not know whether the cause is their legal qualifications or their disabilities. At the very least, such inquiries also produce a judiciary that accepts as appropriate this type of ADA-violating inquiry. Lambda's AIDS Project is following up with each of these committees to ensure that the search for those who interpret the law does not begin with a violation of it.

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