Discrimination Based On HIV/AIDS and Other Health Conditions: 'Disability' As Defined Under Federal and State Law
David W. Webber
David W. Webber, J.D.
Lawrence O. Gostin
Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
Journal of Health Care Law and Policy, Vol. 3, pp. 266-329, 2000
A critical objective in achieving effective legal protection against discrimination based on health conditions has been the development of an adequate definition of the category of health conditions that are deemed deserving of legislative protection. Generally, this definition attempts to exclude health conditions of a trivial or inconsequential nature, while, at the same time, the condition need not be so severe as to render the individual unqualified for the program or workplace in question. Beginning with the enactment of the Rehabilitation Act in 1973, federal legislative efforts have been directed at the development of a statutory definition of "disability" as a means of defining this concept. Under these federal laws, "disability" is defined as an impairment that substantially limits a major life activity. The definition, however, does not reference any specific health condition, nor does it define "substantial limitation" or "major life activity." The prohibition of discrimination based on Human Immunodeficiency Virus (HIV) status was a specific goal of more recent enactments such as the Americans with Disabilities Act of 1990 (ADA). Nevertheless, understanding in what sense "asymptomatic" HIV infection is a disability - it presents no apparent limitations on everyday activities - is invaluable in comprehending the purpose of federal disability nondiscrimination law in general and in assessing alternative approaches, such as those adopted by some states. Although federal nondiscrimination laws such as the ADA were initially deemed by the courts to be inclusive of HIV as a disability, in several more recent cases that view was disputed, including, most notably, the Supreme Court's 1998 decision in Bragdon v. Abbott. More recent decisions of the Supreme Court have given additional consideration to the federal statutory definition of disability. The authors conclude that most, if not all, individuals with HIV infection are protected under federal law, although determining whether such an individual is protected is a potentially complex inquiry in some cases, depending on the facts. Although many states have incorporated the federal disability definition into state nondiscrimination statutes, many states have adopted alternative standards. These include HIV-specific statutes, which explicitly reference the protected health condition (e.g., HIV infection). Other states use a generic disability definition that is either broader or narrower than the federal disability definition. Additionally, many states impose limitations on the use of HIV testing or the use of HIV test results for discriminatory purposes. The authors present a fifty-state survey of HIV-specific statutes, as well as more general state disability statutes. These laws are reviewed both descriptively and analytically, and whether they provide protection for HIV status independent of federal law is assessed, as is the extent of the protection offered. An appendix to the article provides a table summarizing significant features of state laws, and a separate compilation provides a state-by-state summary of the disability definition as it relates to HIV infection.
Date posted: October 18, 2000