AIDS and the Limits of Discrimination Law

Rosen G , A history of public health, 1958: 64.

See, e.g., McNeil W , Plagues and people, 1976: 161–63.

Brandt A , No magic bullet, 1985: 84–92; Parmet W , AIDS and quarantine: The revival of an archaic doctrine, Hofstra Law Review 1985, 14.

For scholarly works arguing that these statutes apply to individuals associated with AIDS, see Leonard , AIDS and employment law revisited, Hofstra Law Review 1986, 14: 11, 21–36; Leonard , Employment discrimination against persons with AIDS, University of Dayton Law Review 1985, 10: 681, k–702; Note, AIDS: Does it qualify as a “handicap” under the Rehabilitation Act of 1973?, Notre Dame Law Review 1986, 61: 572, 592–94

The most notable opponent of this view is the Justice Department. See infra (text accompanying notes 11, 58–61).

Codified at 29 U.S.C. §794.

29 U.S.C. §794.

School Board v. Arline, —U.S.—, 107 S. Ct. 1123 (1987); Cooperman v. Board of Educ., no. A-45/46 (N.J. Sup. Ct., April 15, 1987) at n. 2; Dist. 27 Comm. School Bd. v. Board of Educ., 502 N.Y.S.2d 325, 336, 130 Misc.2d 398, 415 (Sup. 1986)(the exclusion of children with AIDS from public schools violates Sec. 504 as well as state law). In Shuttleworth v. Broward Cty., 639 F. Supp. 654 (S.D. Fla. 1986), the court denied defendants' motion to dismiss claims under Sec. 504, and the state and federal constitutions, against a public employer that dismissed plaintiff because he had AIDS. In New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644 (2d Cir. 1979), the court held that the segregation of retarded children from regular classrooms because of their high incidence of hepatitis B violated Sec. 504. Cf. Cronan v. New England Tel. Co. (Mass. Sup. Ct. No. 80332, Aug. 15, 1986) (AIDS is a handicap under Massachusetts antidiscrimination statute).

See Appendix. See also Cronan v. New England Tel. Co. (Mass. Sup. Ct. No. 80332, Aug. 15, 1986). For a compilation of the provisions of relevant state laws, see Lab. Rel. Rep. (BNA) Fair Emp. Prac. Man., vol. 8A. Unlike Sec. 504, most state statutes regulate all private individuals and corporations. See Leonard, Employment law revisited, supra note 4 at 21 n. 52.

—U.S.—, 107 S. Ct. 1123 (1987).

Brief of United States as Amicus Curiae, School Bd. v. Arline, 107 S. Ct. at 1123. The Justice Department relied on similar reasoning in an advisory opinion ruling that discrimination against persons with AIDS on account of the contagiousness of their disease was not proscribed by Sec. 504. U.S. Department of Justice, Office of Legal Counsel, Memorandum for Ronald E. Robertson; Re: Appplication of section 504 of the Rehabilitation Act to persons with AIDS, AIDS-related complex, or infection with the AIDS virus (June 23, 1986), at 23–36. The Office for Civil Rights of the U.S. Department of Health and Human Services has taken a broader view of the statute's applicability than has the Justice Department. The office ruled that a North Carolina hospital violated Sec. 504 by discharging a HIV-positive nurse because he was infectious. See AIDS Policy & LaW, Aug. 13, 1986, 1: 1.

107 S. Ct. at 1123.

Id. at 1128–29.

347 U.S. 483 (1954).

See, e.g., Brest, Foreword: In defense of the antidiscrimination principle, Harvard Law Review 1976, 90: 1; Freeman, Legitimizing racial discrimination through antidiscrimination law: A critical review of Supreme Court doctrine, Minnesota Law Review 1978, 62: 1049; Wechsler, Toward neutral principles of constitutional law, Harvard Law Review 1959, 73: 1.

Brest, supra note 15 at 6–12.

See, e.g., Wolgast E , Equality and women, 1980: 19; Kay, Models of equality, University of Illinois Law Review 1985: 39, 47; Krieger, Cooney, The Miller-Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review 13: 513, 555 (liberal model of equality is premised on the interchangeability of individuals).

The term “anti-discrimination principle” has been used most prominently by Brest. See generally Brest, supra note 15, passim. My use of the term is not identical to his.

See P.L. No. 83-352, §701–16, 78 Stat. 241, as amended, codified at 42 U.S.C. §2000e et seq.

Griggs V Duke Power Co. 401 U.S. 424 (1971).

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 299 (1976).

See Freeman , supra note 15 at 1102–8.

Compare Brest, supra note 15 at 48–53 (arguing that affirmative action may sometimes violate the anti-discrimination principle) with Fried, In defense of preferential hiring, Philosophical Forum 1973–74, 5: 309 (arguing in support of affirmative action).

See, e.g., Title VII, codified at 42 U.S.C. §2000e et seq.

See Sen. Rep. 93–1297. reprinted in 1974 U.S. Code Cong. & Admin. News 6389. Many state statutes use language similar to that in Sec. 504. See Estreicher. EEO laws: Handicap and sexual preference in Curiale R, Estreicher S, chairs, Communicable diseases in the workplace; Legal, medical, economic, and human resources issues, 1986: 97.

See California Fed. Savings and Loan Ass'n v. Guerra, —US—, 107 S.Ct. 683 (1987). The Supreme Court held that sute laws mandating unpaid maternity leaves do not violate the Pregnancy Disability Act of 1978 (PDA), 42 U.S.C. §2000(e)(k). The Court held that the PDA does not require strict neutrality as to pregnancy, but merely sets a floor against penalties imposed on pregnant women. The Court did not hold, however, that the PDA required that women be given special benefits. Justice White, in a dissent joined by Chief Justice Rehnquist and Justice Powell, argued strongly that the PDA required strict neutrality and that mandated maternity leaves violated that principle. 107 S.Ct. at 698. Cf. Wimberly v. Labor & Indus. Relations Comm'n, — U.S.—, 107 S.Ct. 821 (1987) (provision of federal unemployment tax act that requires that no person shall be denied compensation under the state law solely on the basis of pregnancy does not mandate preferential treatment of women who leave work because of pregnancy). The question of whether the antidiscrimination principle requires or permits special treatment, and under what circumstances, is far from resolved. The literature on maternity leaves is voluminous. Sec, e.g., Krieger and Cooney, supra note 17; Law, Rethinking sex and the Constitution, University of Pennsylvania Law Review 1984, 132: 955; Williams, Equality's riddle: Pregnancy and the equal treatment/special treatment debate, New York University Review of Law & Social Change 1985, 13: 325.

29 U.S.C. 706(7)(B). The definition is further refined by regulations of the Department of Health and Human Services. See 45 C.F.R. §84.3(j)(2). Department of Labor regulations define the same terms for the purposes of Sec. 503 of the Rehabilitation Act. See 41 C.F.R. 30–741.2.

This part of the definition derives from a 1974 amendment to the Rehabilitation Act. P.L. 93–516, 88 Stat. 1617, §111(a)(1974). This amendment reflected Congress' realization that discrimination against the handicapped differs from racial and sexual discrimination in that it might occur to individuals who are not actually handicapped but are merely perceived to be. See Sen. Rep. No. 93-1297, supra note 25 at 6389–90.

See, e.g., Jasany V. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir. 1985); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1099–1100 (D. Hawaii 1980).

442 U.S. 397 (1979).

See Wegner , The antidiscrimination model reconsidered: Ensuring equal opportunity without respect to handicap under section 504 of the Rehabilitation Act of 1973, Cornell Law Review 1984, 69: 401, 456–57.

442 U.S. at 406.

45 C.F.R. 84.3(K)(1).

Id.: 413.

Id.: 410.

Jasany V . United States Postal Service, 755 F.2d 1244 (1985).

De la Torres v. Bolger, 781 F.2d 1134 (5th Cir. 1986).

Forrisi v. Bowen, 794 Fad 931 (4th Cir. 1986).

Id.: 934.

Elizabeth Wolgast has argued eloquently that the handicapped differ in meaningful ways from the non-handicapped and as a consequence deserve “special rights.” See Wolgast E, supra note 17, at 47–49. For an interesting discussion of the meaning of difference in relation to the disabled and mentally retarded, see Minow, When difference has its home: Group homes for the mentally retarded: Equal protection and legal treatment of difference, Harvard Civil Rights–Civil Liberties Law Review 1987, 22: 113.

See Freeman , supra note 15 at 1054–57.

See infra (text accompanying notes 82–88). See also Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985)(must show a reasonable probability of substantial harm); Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir. 1983)(record must reasonably demonstrate an appreciable risk to safety); Doe v. New York Univ., 666 F.2d 761, 777 (1981)(significant risk of harm justifies exclusion of handicapped individual).

See, Doc v. Region 13 Mental Health-Mental Retard. Com'n, 704 F.2d 1402, 1411, 1412 (1983) (where there is no evidence of animus, court must give weight to the expert's determination of harm to others); Doe v. New York Univ., 666 F.2d 761, 776 (1981) (same).

Alexander V. Choate , 469 U.S. 287, 295 (1985).

469 U.S. at 289.

See id.: 296–98; Employment discrimination against the handicapped and section 504 of the Rehabilitation Act: An essay on legal evasiveness, Harvard Law Review 1984, 97: 997, 1005.

E.g, 107 S. Ct. at 1131; Rhode Island Handicapped Action Comm. v. Rhode Island Public Transit Auth., 718 F.2d 490, 497 (1st Cir. 1983) (court should defer to Department of Transportation); Wegner, supra note 31, passim.

The Court in Arline relied on the legislative history concerning other conditions that adversely affect others to determine that a contagious disease may be a handicap under the act. See 107 S. Ct. at 1128–30. The majority, however, did not point to any part of the legislative history that specifically discussed whether the inclusion of a contagious disease was within the scope of the act. The dissent relied on the lack of any clear language in the statute as resolving the issue. See id. at 1132–34 (Rehnquist, C.J., dissenting).

Cordero V. Coughlin , No. 84-728 (S.D.N.Y. Aug. 3, 1984), aff'd mem. No. 84-2337 (2d Cir. Feb. 20, 1985) on LEXIS (Genfed library).

This will be especially true of individuals who are associated with AIDS but do not have clinical AIDS. Even individuals with clinical AIDS, however, may often be able to work for considerable periods of time. See Leonard, supra note 4 at 19–20.

107 S. Ct. at 1124.

She also sought relief under 42 U.S.C. §1983 for violations of her Fourteenth Amendment right to due process. The District Court and Court of Appeals rejected that claim. 772 F.2d at 760 n. 3. The Sec. 1983 claim was not presented to the Supreme Court. 107 S. Ct. at 1125 n. 1.

107 S. Ct. at 1125; 772 F.zd at 761.

772 F.2d at 764, quoting 29 U.S.C. §706(7)(B).

772 F.2d at 764 quoting 29 U.S.C. §706(7)(B).

772 F.2d at 764.

Id: 764–65.

See U.S. Department of Justice, Office of Legal Counsel, supra note 11, at 23–25.

Id.: 24.

Id.: 30–39.

Brief of United States as Amicus Curiae, supra note 11, at 12.

Id.: 13 n. 9.

107 S. Ct. at 1127.

Id.: 1128.

Id.

Id.: 1128 n. 7.

See note 28 supra.

107 S. Ct. at 1128–29.

See id.: 1128 n. 9.

Id.: 1134 (Rehnquist, C.J., dissenting) quoting Alexander v. Choate, 469 U.S. at 299.

107 S. Ct. at 1131.

Id.

107 S. Ct. at 1130 n. 15.

Id.: 1131.

Id.

In Arline the Court noted that an employer has an affirmative obligation to make a reasonable accommodation. Id.: n. 19.

See, e.g., Surgeon General's report on acquired immune deficiency syndrome, U.S. Department of Health and Human Services, at 13.

Brief of the American Medical Ass'n as Amicus Curiae, School Board v. Arline, 107 S. Ct. at 1123, reprinted in Curiale, Estreicher, supra note 25 at 202.

See Motion for Permission to File Brief Amici Curiae and Brief for the American Public Health Ass'n, American Civil Liberties Union, American Nurses Ass'n, and Natl Ass'n of Protection and Advocacy Systems, School Board v. Arline, 107 S. Ct. at 1123, at 15–17 (communicability of tuberculosis depends on stage of disease and treatment being given).

107 S. Ct. at 1131 n. 16.

The Court noted that an employer was not required to find another job for an employee, but could not “deny an employee alternative employment opportunities reasonably available under the employer's existing policies.” Id.: 1131 n. 19.

Id.: 1131.

502 N.Y.S.2d 325; 130 Misc.2d 398 (Sup. 1986).

502 N.Y.S.2d 325, 335; 102 Misc.2d at 412.

502 N.Y.S.2d 325; 102 Misc.2d at 413.

502 N.Y.S.2d 325, 337; 102 Misc.2d at 414–15.

For example, recent reports that three health care workers were infected with HIV after exposure to a patient's blood, even though the blood was not injected into their systems, may lead public health experts to renew calls for taking special precautions when dealing with bodily fluids. See 3 Health care workers found infected by blood of patients with AIDS, New York Times, May 20, 1987, at A-1, col. 3

See Summary—Recommendations for preventing transmission of infection with human T-lymphotropic virus type III/lymphadenopathy-associated virus in the workplace (hereinafter “Summary”), Morbidity & Mortality Weekly Report 1985, 34: 681.

This argument has been made by schools attempting to justify the exclusion of children with AIDS or ARC. See, e.g., Board of Educ. v. Cooperman, 209 N.J. Super. 174, 191; 507 A.2d 253, 262 (N.J. Super. A.D. 1986), aff'd in part and rev'd in part, no. A-45/46 (N.J. Sup. Ct., April 15, 1987).

See Leonard, Employment law revisited, supra note 4 at 28.

These statutes are discussed in Zifchak, The AIDS impact on statutory and private insurance schemes, in Curiale, Estreicher, supra note 25, at 327–29. See also Amer. Council of Life Insurance v. Distria of Columbia, 645 F. Supp. 84 (D.C. 1986).

For a discussion of the role of interchangeability between plaintiffs and defendants in reverse discrimination cases, see Kay, supra note 17, at 62–63, 70–71.

Cf. California Fed. Savings and Loan Ass'n v. Guerra, 107 S.Ct. at 694 (by taking pregnancy “into account,” maternity leaves allow women to have same opportunities as men).

107 S. Ct. at 1131.

See Brief of the American Medical Ass'n, supra note 78, at 202 (risk of contracting tuberculosis is highest in young children and adolescents).

Sec Summary, supra note 88, passim.

For examples of cases in which the courts have done just that, see New York Ass'n Ret. Citizens v. Carey, 612 F.2d at 644; Dist. 27 Comm. School Bd. v. Bd. of Educ, 502 N.Y.S. 2d at 325.

See Calibresi G , A common law for the age of statutes, 1981: 81–90.