The Leadership Conference on Civil and Human Rights

JUSTICE DEPARTMENT POSITION ON AIDS BLASTED

The Consortium for Citizens with Developmental Disabilities and the Leadership Conference on Civil Rights have called upon the Justice Department to withdraw, reconsider, and revise its position on Section 504 of the Rehabilitation Act of 1973 as it applies to Acquired Immune Deficiency Syndrome (AIDS). Despite Section 504's prohibition of discrimination against handicapped persons by employers who receive federal funds, the Justice Department asserts that such employers can discriminate against persons with AIDS if the basis of the discrimination is fear of contagion, and not the disabling effects of the disease. DOJ further asserts that asymptomatic ?carriers of AIDS have no "impairment" for Section 504 purposes and, therefore, are not protected by the law regardless of the nature or motivation of employer actions against such persons.

[W]e have concluded that section 504 prohibits discrimination based on the disabling effects that AIDS and related conditions may have on their victims. By contrast, we have concluded that an individual's (real or perceived) ability to transmit the disease to others is not a handicap within the meaning of the statute and, therefore, that discrimination on this basis does not fall within section 504 ... [Further] it seems clear that a person who carries but is personally immune to a communicable disease cannot on that basis qualify as handicapped under section 504... [T]he mere fact that he is, was, or is thought to be able to communicate a debilitating disease, standing alone is not enough (Memorandum for Ronald E. Robertson, General Counsel, Department of Health and Human Services, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Application of Section 504 of the Rehabilitation Act to Persons with AIDS, AIDS?Related Complex, or Infection with the AIDS Virus).

The medical community disagrees ...

The Justice Department's memorandum was prepared in response to a request from the Department of Health and Human Services which has received complaints from health workers alleging discrimination because they have AIDS, or AIDS related complex, or they test positive for AIDS antibodies. After receiving the DOJ memorandum, the Assistant Secretary for Health found it necessary to issue a press release to emphasize "that there is no medical or scientific evidence that the AIDS virus is spread through casual contact occurring in the workplace, schools or similar settings."

In contrast to the Justice Department position, the American Medical Association in an amicus curiae brief filed in the Supreme Court in the case of Arline v. Nassau County School Board, 772 F.2d 759 (11th Cir. 1985), cert. granted, 54 U.S.L.W. 3687 (U.S. April 21, 1986)(No. 85?1277), argues that section 504 protects persons with AIDS and other infectious diseases from discrimination "based on irrational concerns that they might spread the disease... Although one effect of a handicap may be that it poses a risk of harm to others, employers should not ... be allowed to discriminate irrationally against a handicapped individual based on a fear of such risk," the brief reasons. The Arline case involves the firing of a teacher because of her "chronic susceptibility" to tuberculosis, but lawyers on both sides have stated that the case will have a greater impact on persons with AIDS.

Civil rights community responds...

In a letter sent to Attorney General Edwin Meese, on August 11, the Consortium and the Leadership Conference state: "The interpretation of Section 504 contained in the DOJ memo cannot be allowed to stand since it assaults the very purpose of this statute, disregards clear Congressional intent in enacting Section 504 and seriously undermines the scope and applicability of this crucial civil rights law." The letter continues:

Specifically with regard to AIDS, the Department of Justice memo is flawed by the implicit assumption that AIDS is easily communicable. Employer fear in this context is irrational precisely because all medical evidence shows AIDS to be communicable only through blood or semen. Of the 22,000 documented AIDS cases in the United States, there is no confirmed case of transmission through casual contact. Thus, to allow irrational fear to support AIDS discrimination is as sound medically and legally as allowing similar discrimination on the basis of employers' fears that an employee with cancer or epilepsy will infect his or her co?workers. When irrational fear is introduced as a factor in employment decisions, no one's civil rights are safe. Negative stereotyping of groups of people will replace individualized assessments, and the very purpose of Section 504 will become unattainable.

Representative Henry A. Waxman (D-CA) at a press conference on August 11, 1986 stated that "A sound legal opinion -- consistent with the medical facts and with the disability law -- was drafted by the Justice Department. and rejected by the Administration. That position is available to the Administration still. The Attorney General should withdraw the Cooper memorandum and replace it with one stating the government's commitment to public health and to protection from discrimination." Rep. 11axman said the only justification he could see for the memo was DOJ's desire to respond punitively toward homosexuals.

For additional information, contact Curt Decker at the Consortium, (202)3871968, or Bonnie Milstein at the Center for Law and Social Policy, (202)3285140.