The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in employment on the basis of a person's disability, including HIV/AIDS. The ADA, which covers employers of 15 or more people, applies to employment decisions at all stages. To apply the ADA to everyday employment situations, employers must remember four key points:

  1. The definition of disability
  2. The importance of knowing the essential functions of jobs
  3. The concept of reasonable accommodation
  4. Preserving confidentiality of medical information and limiting medical inquiries within the boundaries of the law

An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities
  • Has a record of such an impairment
  • Is regarded as having such an impairment

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.

Reasonable accommodation may include, but is not limited to:

  • Making existing facilities used by employees readily accessible to and usable by persons with disabilities
  • Job restructuring, modifying work schedules, reassignment to a vacant position
  • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters

As more effective drug therapies are extending the lives of HIV-positive people -- and improving their quality of life -- more workers are returning to the workforce and staying productive. Lawsuits filed by HIV-infected workers continue under the ADA. Most of these lawsuits are preventable through training and education.

For example, on June 25, 1998, the Supreme Court decided a case with major impact, when it determined in Bragdon v. Abbott, 1998 U.S. LEXIS 4212 (1998), that, in this case, the individual plaintiff who is HIV-positive but asymptomatic is protected as an individual with a disability under the Americans with Disabilities Act of 1990. The Court remanded on the issue of whether individual healthcare providers could determine the extent of direct threat of patients with HIV.

Bragdon v. Abbott

Bragdon v. Abbott, 1998 U.S. LEXIS 4212 (1998), involves Sidney Abbott, a woman with no symptoms of HIV, but who disclosed that she was HIV-positive when seeking dental treatment from Randon Bragdon, a dentist in Maine. Dr. Bragdon examined her in his dental office but refused to fill her cavity in his dental office; he indicated that he would fill her cavity in only a hospital and that she would be required to bear additional hospital expenses. She brought suit under Title III of the Americans with Disabilities Act of 1990, which prohibits private providers of public accommodations (such as a private dentist) from discriminating against otherwise qualified individuals with disabilities on the basis of their disabilities. The same definition of "disability" applies in Title I cases under the ADA, governing employment.

On the issue of whether being HIV-positive but asymptomatic qualifies an individual as being substantially limited in one or more major life activities, the Court held in this case that she was covered. It looked to reproduction as a major life activity and held that Sidney Abbott had demonstrated that her ability to reproduce and to bear children was substantially limited by her HIV infection.

To be protected under the ADA, an individual must have a physical or mental impairment that substantially limits one or more major life activities, must have a record of such an impairment, or be regarded as having such an impairment. The ADA also permits differing treatment in cases where the individual seeking protection is not considered to be otherwise qualified, or because the individual poses a "direct threat" to himself or herself or others that cannot be eliminated through a reasonable accommodation.