Acquired Immune Deficiency Syndrome

Having HIV is not a sentence to remove oneself from society. It does not limit a person's physical or mental abilities. Only later, when symptoms develop—as long as ten years from the time of infection—does the disease become increasingly debilitating. In any event, people who are HIV-positive and AIDS-symptomatic are fully able to work, play, and participate in daily life. Moreover, their rights to do so are the same as anyone else's. The chief barrier to a productive life often comes less from HIV and AIDS than from the fear, suspicion, and open hostility of others. Because HIV cannot be transmitted through casual contact, U.S. law has moved to defend the CIVIL RIGHTS of those individuals with the disease.

AIDS in the Workplace The workplace is a common battleground. Many people with AIDS have lost their jobs, been denied promotions, or been reassigned to work duties that remove them from public contact. During the 1980s, this discrimination was fought through lawsuits based on older laws designed to protect the disabled. Plaintiffs primarily used the Rehabilitation Act of 1973 (29 U.S.C.A. § 701 et seq.), the earliest law of this type. But the Rehabilitation Act has a limited scope: it applies only to federally funded workplaces and institutions; it says nothing about those that do not receive government money. Thus, for example, the law was helpful to a California public school teacher with AIDS who sued for the right to resume teaching classes (Chalk v. United States District Court, 840 F.2d 701 [9th Cir. 1988]), but it would be of no use to a worker in a private business.

With passage of the ADA in 1990, Congress gave broad protection to people with AIDS who work in the private sector. In general, the ADA is designed to increase access for DISABLED PERSONS, and it also forbids discrimination in hiring or promotion in companies with fifteen or more employees. Specifically, employers may not discriminate if the person in question is otherwise qualified for the job. Moreover, they cannot use tests to screen out disabled persons, and they must provide reasonable accommodation for disabled workers. The ADA, which took effect in 1992, quickly emerged as the primary means for bringing AIDS-related discrimination lawsuits. From 1992 to 1993, more than 330 complaints were filed with the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), which investigates charges before they can be filed in court. Given the lag time needed for EEOC investigations, those cases started appearing before federal courts in 1994 and 1995.

AIDS and Health Care Closely related to work is the issue of health care. In some cases, the two overlap: HEALTH INSURANCE, SOCIAL SECURITY, and disability benefits for people with AIDS were often hard to obtain during the 1980s. Insurance was particularly difficult because employers feared rising costs, and insurance companies did not want to pay claims. To avoid the costs of AIDS, insurance companies used two traditional industry techniques: they attempted to exclude AIDS coverage from general policies, and they placed caps (limits on benefits payments) on AIDS-related coverage. State regulations largely determine whether these actions were permissible. In New York, for example, companies that sell general health insurance policies are forbidden to exclude coverage for particular diseases. Caps have hurt AIDS patients because their treatment can be as expensive as that for cancer or other life-threatening illnesses. Insurance benefits can be quickly exhausted—in fact, AIDS usually bankrupts people who have the disease. The problem is compounded when employers serve as their own health insurers. In McGann v. H&H Music Co., 946, F.2d 401 (5th Cir. [1991]), a federal court ruled that such employers could legally change their policies to reduce coverage for workers who develop expensive illnesses such as AIDS.

In January 1995, the settlement in a lawsuit brought by a Philadelphia construction worker with AIDS illustrated that the ADA could be used to fight caps on coverage. In 1992, the joint union-management fund for the Laborers' District Council placed a $10,000 limit on AIDS benefits, in stark contrast to the $100,000 allowed for other catastrophic illnesses. At that time, the fund said the cap on AIDS benefits was designed to curb all health costs. In 1993, the EEOC ruled that the fund violated the ADA, and, backed by the AIDS Law Project of Philadelphia, the worker sued. Rather than fight an expensive lawsuit, the insurance fund settled: under the agreement, it extended coverage for all catastrophic illnesses to $100,000. Hailing the settlement as a major blow against widespread discrimination in insurance coverage, the law project's executive director, Nan Feyler, told the Philadelphia Inquirer, "You can't single out someone based on a stereotype."

In other respects, health care is a distinct area of concern for AIDS patients and health professionals alike. Discrimination has often taken place. State and federal statutes, including the Rehabilitation Act, guarantee access to health care for AIDS patients, and courts have upheld that right. In the 1988 case of Doe v. Centinela Hospital, 57 U.S.L.W. 2034 (C.D. Cal.), for example, an HIV-infected person with no symptoms was excluded from a federally funded hospital residential program for drug and alcohol treatment because health care providers feared exposure to the virus. The case itself exposed the irrationality of such discrimination. Although its employees had feared HIV, the hospital argued in court that the lack of symptoms meant that the patient was not disabled and thus not protected by the Rehabilitation Act. A federal trial court in California rejected this argument, ruling that a refusal to grant services based solely on fear of contagion is discrimination under the Rehabilitation Act.

Other actions during the 1990s have relied upon the ADA. In 1994, the U.S. Justice Department reached a settlement in a lawsuit with the city of Philadelphia that ensures that city employees will treat patients with AIDS. The first settlement in a health care–related ADA suit, the case grew out of an incident in 1993: when an HIV-positive man collapsed on a Philadelphia street, emergency medical workers not only refused to touch him but told him to get on a stretcher by himself. The man sued. In settling the case, the city agreed to begin an extensive training program for its 900 emergency medical technicians and 1,400 firefighters. In addition, officials paid the man $10,000 in COMPENSATORY DAMAGES and apologized. The JUSTICE DEPARTMENT viewed the suit as an important test of the ADA. Assistant Attorney General James Turner said the settlement would "send a clear message to all cities across the nation that we will not tolerate discrimination against persons with AIDS."

Health care professionals are not the only ones with concerns about HIV transmission. Patients may legitimately wonder if their doctors are infected. During the early 1990s, the medical and legal communities debated whether HIV-positive doctors have a duty to inform their patients of the illness. According to the Centers for Disease Control (CDC), the risk of HIV transmission from health care workers to patients is very small when recommended infection-control procedures are followed, yet this type of transmission has occurred. The first cases of patients contracting HIV during a medical procedure were reported in 1991: Dr. David J. Acer, a Florida dentist with AIDS, apparently transmitted HIV to five patients. One was Kimberly Bergalis, age twenty-three, who died as a result. Before her death, Bergalis brought a claim against the dentist's professional liability insurer, contending that it should have known that Acer had AIDS and effectively barred him from operating by refusing to issue him a MALPRACTICE insurance policy. Bergalis's claim was settled for $1 million. A second claim by Bergalis, against the insurance company that recommended Acer to her, was settled for an undisclosed amount.

Since the Bergalis case, many U.S. dentists, physicians, and surgeons with AIDS have begun disclosing their status to their patients. Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (Md. 1993), illustrates the consequences of not doing so. In Faya, the court held that an HIV-positive doctor has the legal duty to disclose this medical condition to patients and that a failure to inform can lead to a NEGLIGENCE action, even if the patients have not been infected by the virus. The doctor's patient did not contract HIV but did suffer emotionally from a fear of having done so. The unanimous decision held that patients can be compensated for their fears. Although this case dealt specifically with doctor-patient relationships, others have concerned a variety of relationships in which the fear of contracting AIDS can be enough for a plaintiff to recover damages.

Routine HIV-testing in healthcare facilities also raises legal issues. Most people who are HIV-positive want this information kept confidential. Facilities are free to use HIV testing to control the infection but in most states only with the patient's informed consent. Some states, such as Illinois, require written consent. The level of protection for medical records varies from state to state. California, for example, has broad protections; under its statutes, no one can be compelled to provide information that would identify anyone who is the subject of an HIV test. However, every state requires that AIDS cases be reported to the CDC, which tracks statistics on the spread of HIV. Whether the name of an HIV-infected person is reported to the CDC depends on state laws and regulations.

AIDS and Education Issues in the field of education include the rights of HIV-positive students to attend class and of HIV-positive teachers to teach, the confidentiality of HIV records, and how best to teach young people about AIDS. A few areas have been settled in court: for instance, the right of students to attend classes was of greater concern in the early years of the epidemic and later ceased to be a matter of dispute.

Certain students with AIDS may assert their right to public education under the Education for All Handicapped Children Act of 1975 (EAHCA), but the law is only relevant in cases involving special education programs. More commonly, students' rights are protected by the Rehabilitation Act. Perhaps the most important case in this area is Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (C.D. Cal.1986), which illustrates how far such protections go. Thomas involved an elementary school student with AIDS who had bitten another youngster in a fight. Based on careful review of medical evidence, the U.S. District Court for the Central District of California concluded that biting was not proved to transmit AIDS, and it ordered the school district to readmit the girl. Similarly, schools that excluded teachers with AIDS have been successfully sued on the ground that those teachers pose no threat to their students or others and that their right to work is protected by the Rehabilitation Act, as in Chalk.

Confidentiality relating to HIV is not uniform in schools. Some school districts require rather broad dissemination of the information; others keep it strictly private. In the mid-1980s, the New York City Board of Education adopted a policy that nobody in any school would be told the identities of children with AIDS or HIV infection; only a few top administrators outside the school would be informed. The policy inspired a lawsuit brought by a local school district, which argued that the identity of a child was necessary for infection control (District 27 Community School Board v. Board of Education, 130 Misc. 2d 398, 502 N.Y.S.2d 325 [N.Y. Sup. Ct. 1986]). The trial court rejected the argument on the basis that numerous children with HIV infection might be attending school and instead noted that universal precautions in dealing with blood incidents at school would be more effective than the revelation of confidential information.

Schools play a major role in the effort to educate the public on AIDS. Several states have mandated AIDS prevention instruction in their schools. But the subject is controversial: it evokes personal, political, and moral reactions to sexuality. Responding to parental sensitivities, some states have authorized excused absences from such programs. The New York State Education

The AIDS quilt, on display in Washington, D.C., has become a well known symbol of support for AIDS victims and their families. Families and supporters of AIDS victims create a panel to commemorate a person's life; each panel is then joined with others from around the country.
LEE SNIDER/CORBIS

Department faced a storm of controversy over its policy of not allowing absences at parental discretion. Furthermore, at the local and the federal levels, some conservatives have opposed certain kinds of AIDS education. During the 1980s, those who often criticized liberal approaches to sex education argued that AIDS materials should not be explicit, encourage sexuality, promote the use of contraceptives, or favorably portray gays and lesbians. In Congress, lawmakers attached amendments to appropriations measures (bills that authorize the spending of federal tax dollars) that mandate that no federal funds may be used to "promote homosexuality." In response, the CDC adopted regulations that prohibit spending federal funds on AIDS education materials that might be found offensive by some members of certain communities. Despite the controversy, some communities have taken radical steps to halt the spread of AIDS. In 1991 and 1992, the school boards of New York City, San Francisco, Seattle, and Los Angeles voted to make condoms available to students in their public high school systems.