Prepared by the U.S. Department of Justice in September, 2005, and updated in February, 2006, this guide provides a basic overview of federal laws that offer antidiscrimination protections to people with disabilities, including those with HIV/AIDS. Links and contact information for the federal agencies and organizations charged with enforcement of these laws, and statutory citations, is included. Laws covered include the Americans with Disabilities Act (ADA), Telecommunications Act, Fair Housing Act, Air Carrier Access Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, Civil Rights of Institutionalized Persons Act (CRIPA), Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Rehab Act), and the Architectural Barriers Act.
One in a series of primers on various legal issues as they pertain to people living with HIV/AIDS, this primer on housing law will help advocates whose clients are facing discrimination in housing, or are in need of housing assistance. The primer covers the Fair Housing Act as it relates to tenants with HIV/AIDS, and provides information on Housing Opportunities for Persons with AIDS (HOPWA) and other federal housing assistance programs. Advocates will also find information on the effect of past criminal activity on their ability to secure federal housing assistance.
In New York Article 78 proceeding, the New York State Supreme Court held that the Department of Housing Preservation and Development (HPD) must provide temporary stipends, meal allowances, storage and emergency housing when forcing a tenant residing in an illegal unit to relocate. HPD had obtained a court order forcing the tenant to vacate his apartment because it was an illegal unit.
At issue was whether the fact that the tenant lived in an illegal unit permitted HPD to deny him temporary relocation services. The tenant asserted that the under the plain language of the NYC Administrative Code 26-301(1)(a) and HPD regulations 28 RCNY 10-01 that he was entitled to services because he was evicted from a privately-owned building through no fault of his own. HPD asserted that their own regulations defined a relocatee as a person evicted from a permanent residence, and an illegal unit could never be considered a permanent residence.
Rejecting HPDs interpretation of their own regulations because the issue was a question of law and that HPDs determination ran counter to the clear wording of the statutory provision. HPD was not precluded from seeking reimbursement from the owner of the illegal unit.
This article considers the importance of the housing case Keith Cupidon v. Shaun Donovan, as Commissioner of Department of Housing Preservation and Development (HPD), which held that HPD must provide temporary stipends, meal allowances, storage and emergency housing when asking a tenant in an illegal unit to relocate. According to the article, it is not uncommon in New York City for landlords with illegal dwellings to call HPD to vacate tenants because the fines for the converted units are lower than the cost of pursuing an eviction in court.
The Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) is an international treaty designed to protect individuals from discrimination based on race that is both intentional or the result of neutral policies. Particularly relevant to HIV/AIDS issues are: the requirement that state parties take concrete measures in social, economic, cultural, and other fields to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms (Article 2); and the requirement that state parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law in the enjoyment of rights including the right to work and to free choice of employment, the right to housing, the right to public health, medical care, social security, and social services, and the right to education and training (Article 5).
As a treaty, CERD is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. State parties must submit periodic reports to the Committee on the Elimination of Racial Discrimination detailing how they are giving effect to CERD. Moreover, under Articles 11-13, if a state party is not giving effect to the provisions of CERD, another state party may bring this to the attention of the Committee, which will collect information from the relevant state parties and, if the dispute cannot be reconciled, will form an ad hoc commission to investigate and issue recommendations. Under Article 14, a state party has the option of allowing the Committee to receive and consider complaints from individuals claiming that the state party has violated their rights under CERD, and the Committee will issue recommendations to the state party accordingly.
The United States has ratified CERD, but has not exercised the option set forth in Article 14.
The International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) represents one-third of what is informally referred to as the “International Bill of Rights.” The other two thirds consist of the International Covenant on Civil and Political Rights (“ICCPR”), and the Universal Declaration of Human Rights. The ICESCR outlines universal economic, social and cultural rights; particularly relevant to HIV/AIDS issues are: the right to the highest attainable standard of health (Article 12); the right to education (Article 13); the right to work (Article 7); the right to enjoy the benefits of scientific progress and its applications (Article 15); the right to social security (Article 9); the right to an adequate standard of living, including adequate food, clothing, and housing (Article 11); and the right to participate in cultural life (Article 15).
As a convention, the ICESCR is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. Like the ICCPR, parties to the ICESCR are obligated to make periodic reports on their compliance with the convention to the Committee on Economic, Social and Cultural Rights. The Committee also prepares “General Comments” interpreting the ICESCR and exchanges general views on the rights of the ICESCR.
However, unlike the ICCPR, the ICESCR has no optional protocol that would allow victims of violations of ICESCR to present complaints before the Committee on ESCR against a state that has ratified the convention and violates its obligations; however, in April 2008, a UN working group approved a draft of such an optional protocol, and sent it to the UN Human Rights.
The United States has signed, but not ratified, the ICESCR.
