HIV/AIDS and the ADA: easing the burden of discrimination

    Twenty-five years old, the federal Americans with Disabilities Act (ADA) supports people with disabilities by establishing their legal right to fully participate in society. Among the groups that have benefited from the strong protections of the ADA are people living with HIV and AIDS. More than half of the people in the United States who are HIV-positive are over 50 years of age. They often face discrimination based on their age, race, sexual orientation, gender identity and/or HIV status.

    The AIDS Law Project of Pennsylvania has provided free legal services to people living with HIV/AIDS for 27 years and has represented thousands of clients fighting discrimination in employment, housing and public accommodations. Ronda Goldfein has served as its executive director since 2000. Goldfein shared her thoughts with the LGBT Elder Initiative about the impact of the ADA on the lives of people living with HIV/AIDS.

    LGBTEI: hat has been the impact of the ADA on people living with HIV/AIDS?

    RG: From its inception, the ADA was groundbreaking in its protection of people who were denied access to employment or services available to the public — including health care. Before the ADA, people with HIV were routinely turned away from necessary services and the workplace with no recourse. A doctor would say, “I am afraid of you, I don’t really want to treat you.” Employers would tell employees, “If you have HIV, it might cost me money down the road, so I am going to fire you.” With the ADA, people are, thankfully, forced to learn about transmission and hopefully come to the realization that people with HIV don’t present a risk in casual or workplace settings.

    LGBTEI: Does the ADA specifically cover HIV?

    RG: No, the ADA does not identify specific illnesses or conditions as disabilities, but the legislative history provides strong evidence that Congress intended HIV infection to constitute a per-se disability. In 1998, the U.S. Supreme Court in the Bragdon case ruled that a person with HIV was covered by the ADA, because the virus impacted activities of major life functions.

    LGBTEI: Has the ADA evolved over the last 25 years? 

    RG: Yes, in 2008, the ADA was amended by the ADA Amendments Act (ADAAA). The amendments were in response to two Supreme Court rulings that workers who used mitigating measures such as medication or assistive technology weren’t disabled, and therefore were not entitled to the protections of the law. The ADAAA requires courts to focus on whether discrimination occurred, rather than whether the individual seeking the law’s protection fits within the technical definition of the term “disability.” This is an important distinction for people with HIV, who, thanks to their medication, are well, but still need antidiscrimination protection because of the stigma that still exists.

    LGBTEI: How did the law impact your clients?

    RG: If a client came to us before 1992 because they had been discriminated against because they had HIV, the answer was, “Oh well, sorry about that.” But there was almost no legal remedy. It was not unlike somebody saying, “They fired me because I am gay.” The answer was, “It’s OK. They can do that.” The ADA gave people legal rights and protections. It made sure that people could remain in their jobs, could retain their health coverage. It assured people’s rights.

    LGBTEI: What is the impact that you see on your clients today?

    RG: A lot of the original issues were about people trying to keep their jobs so that they could have health insurance or people who wanted access to a doctor or a dentist. It got people some relief, some dignity while they were dying. Now, people with HIV have futures and the law supports the future that science made possible. We represented a 14-year-old student who was kicked out of school because he has HIV. Not only was he compensated for the impermissible decision to exclude him, but the school has since changed its policy and now admits HIV-positive students. 

    LGBTEI: What would life have been like for the past 25 years for people with HIV/AIDS without the ADA?

    RG: I think that we would not be seeing people in our workplaces. We, as a society, would be saying, “I don’t know anybody with HIV.” I think it would have impacted our entire way of thinking about people with HIV. They would have been the scary monsters in the night, not the guy who is sitting next to me on the bus. The ADA forced that conversation to happen and impacted how everyone perceives people with HIV/AIDS. Further, I think the support of legal protections empowered people to fight for better medicine.

    LGBTEI: What does it mean when people say that the ADA is a civil-rights law?

    RG: The ADA stops people from just saying, “Well, I don’t like those kinds of people and I won’t let them in my restaurant.” That is not permissible under the ADA. You cannot exclude people with HIV from whatever it is — a dental practice, a health club, a hotel, an airplane or a restaurant. What happens is that you hear people say things such as, “It is my gym, it’s my hotel, it’s my restaurant. I can do whatever I want.” Well, you can do whatever you want, as long as it is consistent with the law. If your business is open to the public, you cannot turn people with HIV away.

    LGBTEI: What would our lives be like today had the ADA not been the law for the past 25 years?

    RG: Our society would’ve been dramatically different without the ADA. I don’t want to say that the ADA forced the issue, but it probably did. It forced that conversation to happen and impacted how everyone perceived people with HIV/AIDS and people with disabilities in general. The ADA also meant that, when you are open for business, you are going to treat all of your employees fairly and you are going to serve everybody who walks or rolls in the door. Attitudes have changed. If the ADA had not been there to protect people so that they could be on the bus, at the barbershop, making your hamburger — to be in all those places where we all are — our attitudes about people with disabilities would be very different. They would still be the bogeyman, the other. But now, because people know and see people with HIV and other disabilities, it causes people to talk about it. It is the idea of awareness and familiarity and it helps reduce the fear of the unknown, of the different. The ADA has helped to open people’s minds, and doors.

    For more information or assistance, contact the AIDS Law Project of Pennsylvania at 215-587-9377.