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HIV as a Disability Under Antidiscrimination Law

This issue section primarily includes court decisions and briefs that address whether and when HIV is a covered disability under federal antidiscrimination law.  It also includes general overviews of federal disability law as applied to HIV; and federal guidelines that discuss the interpretation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 as it concerns coverage for people with HIV/AIDS. The meaning and role of "disability" in the context of antidiscrimination law is quite different than in public and private disability benefits programs, which exist to provide benefits to individual whose disabilities are of a nature or severity to preclude full-time employment. Under antidiscrimination laws such as the ADA, particularly as amended in 2008, the fact of a disability, including those such as early HIV disease with no visible manifestations, is the basis for protection from discrimination against those who, while living with a disability, are otherwise able to work or participate in programs and services.

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Couture v. Bonfils Memorial Blood Center, Amicus Brief

This 2005 amicus brief was filed in the Tenth Circuit Court of Appeals by Lambda Legal on behalf of an HIV-positive phlebotomist in a wrongful termination action brought under the Americans with Disabilities Act (ADA) and Colorado state anti-discrimination laws. The plaintiff, Couture, was removed from his position at a blood donation center and offered a position with lower skill requirements. The brief focuses on the issue of whether the plaintiff is an individual with a disability and is thus entitled to the protections of the ADA. The brief relies on three grounds to support the assertion that the plaintiff in this case is an individual with a disability: (1) the text and legislative history of the ADA establish that the act provides broad protections to people with HIV, (2) HIV infection is always a physical disability from the point of infection; and (3) HIV-positive individuals typically are treated as more infectious than they are and thus frequently are regarded as, or treated as, disabled. Click here to download.

 

HIGHLIGHTED RESOURCE
ADA Amendments Act of 2008, Pub. L. No. 110-325, 110th Congress, Second Session

The stated purpose of the ADA, passed in 1990, was to ensure that individuals with disabilities can be active members of society, whether at work, school, the doctor's office, or the shopping mall, without disparate treatment on the basis of their real or perceived disabilities. The ADA expressly intended that the definition of "disability" under the ADA be broadly defined, consistent with the Supreme Court's decision in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). Over the years, however, several U.S. Supreme Court rulings diluted the protections of the ADA and significantly narrowed the scope of its coverage through increasingly restrictive definitions of "disability." In multiple decisions, the court's focus was on whether plaintiffs met a demanding determination of a covered disability under the ADA rather than on whether or not discrimination had occurred. In passing the ADA Amendments Act of 2008, Congress explicitly rejected the Supreme Court's reasoning in these decisions on what constitutes a disability, and restored the broader approach to coverage under federal disability antidiscrimination law that the Supreme Court articulated in its application of the Rehabilitation Act in Arline. According to Representative George Miller of California, the Act "restores the proper focus on whether discrimination occurred rather than on whether or not an individual's impairment qualifies as a disability." Click here to download.