50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 19: HIV/AIDS Is a Protected Disability Under The ADA

by Hirschfeld Kraemer LLP
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The social, economic and public health effects of the AIDS epidemic in the 1980s propelled public health and community-based organizations to join forces and advocate for the passage of a federal anti-discrimination law.  Indeed, the legislative history of the Americans with Disabilities Act (“ADA”) makes clear that prohibiting discrimination against persons living with HIV/AIDS was one of its objectives. When the ADA was passed in 1991, it was the first federal law to protect people disabled by AIDS from discrimination in housing or employment.  (HIV/AIDS has been recognized as a disability in California since 1989, first through case law and subsequently through amendment to the Fair Employment and Housing Act, which states that disabled persons include individuals with HIV infection or AIDS, or who are perceived as having AIDS).

In the years following the ADA’s passage, however, federal courts disagreed on whether HIV infection is a disability under the ADA. The controversy began in 1998 when the United States Supreme Court held that HIV was a physical impairment but refused to determine whether HIV/AIDS was a per se disability.

A number of lower courts subsequently refused to consider HIV as a per se disability and instead analyzed a number of factors to determine whether persons living with the disease were guaranteed protections under the ADA.

In 2008, however, Congress amended the ADA to clarify the definition of disability and thus overturn federal court decisions that narrowed the scope of its protections.  Specifically, under the ADA Amendments Act of 2008, people with HIV/AIDS can demonstrate that they are disabled by showing that their unmedicated HIV/AIDS substantially limits the functions of their immune system.  Based on this language, HIV/AIDS need not be symptomatic in order for an individual to be protected under the ADA.

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