The Americans with Disabilities Act (ADA) is a federal law ratified by the U.S. Congress in 1990 to prohibit discrimination based on a person’s disabilities. Under the ADA, people with disabilities are provided legal protection from discrimination in the workplace; in public facilities and services; in state and local government; and in telecommunications.
The ADA specifically defines discrimination as “a physical or mental impairment that substantially limits a major life activity.”
Understanding what that means—and how the legal interpretation affects all people with HIV—can better help those who fear discrimination find the legal support they need, while reducing barriers for individuals who might otherwise avoid HIV testing and care.
History of the ADA and HIV/AIDS
When the ADA was first enacted, HIV was considered an inherently life-threatening illness, and it was largely assumed that infection would eventually lead to impairment or incapacitation in most, if not all, individuals with HIV. In that context, legal protections for those with HIV were seen to be clear and implacable.
However, over time, as HIV began to be considered a more chronic manageable disease, there were a number of legal challenges as to whether HIV infection should, in and of itself, be considered a disability if the person remains symptom-free and otherwise unimpaired.
That question was put before the U.S. Supreme Court in 1998 in Bragdon v. Abbott, a case in which an asymptomatic, HIV-positive woman named Sidney Abbott was told by her dentist that he would only fill her cavity in a hospital, and only if she bore the extra hospital costs herself.
In a close 5-4 decision, the Court ruled in favor of Ms. Abbott, declaring that refusal to treat in a dental office was intrinsically discriminatory and that, even as an asymptomatic person with HIV, Ms. Abbott still entitled protection under the ADA.
Beyond the obvious implications for those living with HIV, the ruling also confirmed that “associational discrimination”—namely, discrimination against individuals based on their association with those covered under the ADA—was prohibited under the law.
The 1998 ruling ultimately extended protections to all Americans living with HIV, symptomatic or not, as well as those might be regarded as having HIV. It further forbade discrimination against any business and/or individual who treats or is other associated with a person with HIV.
Legal Protections Afforded Under the ADA
The ADA extends legal protections, under specific conditions, to all people with disabilities. The key areas of the law, as it applies to HIV, include:
Employment: The ADA prohibits discrimination to private employers with 15 employees or more. Under the law, a person with HIV may not be fired or denied employment based on real or perceived HIV infection. An employer may not deny or unfairly adjust wages, benefits, leave, training, job assignment, or any job-related activity as a result of an employee’s HIV status.
Additionally, reasonable accommodations must be made to modify or adjust a job should an HIV-related condition demand such accommodation. This can include rest breaks or modifying work schedules for persons who are impaired as a result of HIV; or allowing for doctor’s appointments or emergency leave for those who may have used up their sick leave.
An employer is not permitted to seek information about an employee’s (or potential employees) HIV status or ask disability-related questions. Any HIV-related information made known to the employer must be kept the strictest confidential.
Public Accommodations: A public accommodation is a private entity open to the public, including such places as restaurants, doctor’s offices, health clubs, retail stores, day care centers, and any other site or business where the public is readily permitted.
Under the ADA, failure to provide access or equal opportunity to those with real or perceived HIV infection is considered discrimination. This can include changes to the usual way a business operates, which either excludes or provides lesser services to a person with HIV. A public accommodation is also prohibited from imposing surcharges based solely on a person’s HIV status, or referring the person to another business if the services are within the scope of that business’ expertise.
Entities that meet the legal definition of a private club or that qualify for exemption as a religious organization are not included in the ADA definition. Neither is housing, which is covered under the Fair Housing Amendment Act of 1988.
- State and Local Governments – The ADA clearly applies to all state or local governments, districts, departments and agencies, as well as any other entity or commission that fall under the aegis of a state or local government. This includes public schools, public pools, libraries, government hospitals, or city-operated transportation services.
What To Do If You’ve Been Subjected to Discrimination
In the event you’ve been discriminated in the workplace as a result of HIV, contact your neareest Equal Employment Opportunity Commission (EEOC). Charges must be laid within 180 day of the alleged infraction. Upon investigation, the EEOC may either act to correct the infringement or issue a “right to sue” letter to the employee. To learn more or to find the EEOC office nearest you, telephone 800-669-4000 or visit the EEOC website.
The Job Accommodation Network (JAN), a service provided by the U.S. Department of Labor, can offer free advice to employers and people with disabilities on reasonable accommodation in the workplace. Telephone 800-526-7234, or visit the JAN website for accommodation advice for people with HIV.
If discrimination has occurred in a public accommodation, contact the U.S. Department of Justice (DOJ) at 800-514-0301, or visit the ADA HIV/AIDS portal for information on how to file a DOJ complaint.
U.S. Department of Justice. “Current text of the Americans with Disabilities Act of 1990 incorporating the changes made by the ADA Amendments Act of 2008.” Washington, D.C.; updated March 25, 2009.
Gostin, L. and Webber, D. “Discrimination Based on HIV/AIDS and Other Conditions: 'Disability' As Defined Under Federal and State Law.” Health Care Law & Policy. Georgetown Law Faculty Publications; 2000: Paper 94:266-329.