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Lambda Fights Illegal, Widespread Practice: Mandatory HIV Testing and Disclosure

By Heather C. Sawyer, Staff Attorney, Midwest Regional Office AIDS Project

Spring/Summer 1997

A Chicago man learns he will not be considered for a teaching job after complying with unlawful pre-employment questions that require him to reveal he has HIV. Another Chicago resident refuses to take a medically unnecessary HIV test, and his surgeon then cancels his previously scheduled surgery. A young woman, forced to take an HIV test in order to join the federal Job Corps, receives faulty and insensitive counseling about her positive results. Officials then try to bar her from the program.

This continues to be an ugly reality: despite clear legal directives to the contrary, employers, the government, and service providers are demanding to know a person's HIV status and are unlawfully refusing employment opportunities and access to necessary services and programs for those with HIV/AIDS. Responding to cases like those above, Lambda is backing up efforts to negotiate on behalf of people living with HIV and AIDS with lawsuits aimed at stopping unlawful HIV screening.

Federal law prohibits discrimination on the basis of disability by the government, by recipients of federal funds, by private employers, and by places of public accommodation such as dental or medical offices. Under the Americans with Disabilities Act (ADA), employers cannot ask applicants about medical conditions prior to making a conditional offer of employment. The ADA also prohibits places of public accommodation, including hospitals and doctors' offices, from using HIV tests or any other medical eligibility criteria that tend to screen out persons with disabilities unless the criteria are necessary for the provision of that public accommodation's goods or services.

Despite the ADA's clear limits on the gathering of personal medical information, we continue to encounter both unlawful attempts to screen for HIV and refusals by agencies and professionals to voluntarily eliminate such screening. As has been clear in previous Updates, Lambda attempted to work cooperatively with the Chicago Board of Education for more than a year before filing a lawsuit challenging the Board's continued screening of applicants and its refusal to process our client's application. Our client is an HIV-positive man who has been fighting to have his application for a teaching post considered since 1995.

If we are to encourage people to know their HIV status, we must do what we can to ensure that testing is voluntary, that it is accompanied by appropriate counseling, and that it does not lead to discrimination by employers and service providers. Conditioning employment, training, or access to surgery and other health care on an HIV test is worse than pointless. It defeats an important public health goal while fueling the inevitable discrimination that follows.

The resistance Lambda has faced in negotiations to end unlawful, unnecessary testing underscores the continued importance of the courts as a tool to protect the rights of people living with HIV.




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