Discrimination & HIV/AIDS
A Factsheet for Practitioners
Do HIV-positive people have any legal protection against
Individuals with disabilities are protected under the Americans with
DisabilitiesAct (ADA). Persons with HIV, whether they have outwardly manifested
symptoms or not, are considered to have physical impairments that substantially
limit one or more major life activities. Therefore, the ADA covers them.The ADA gives federal civil rights protection to individuals with
disabilities. It also guarantees equal opportunity in public accommodations,
employment, transportation, state and local government services and
telecommunications. Recent court decisions and pending legislation may affect
this protection of HIV-positive people against discrimination.
Can people refuse to rent to me because I am HIV positive?
No. The Fair Housing Amendments Act of 1988 prohibits housing discrimination
against persons with disabilities, including persons with HIV/AIDS. This act is
enforced by the Fair Housing & Equal Opportunity Office.
Can a restaurant or hotel refuse me service because I have HIV/AIDS?
Under the ADA, all people, including those with disabilities, are given equal
opportunity to use or enjoy a public accommodation’s goods, services, and
facilities. Public accommodations include restaurants, hotels, theaters,
doctors’ offices, dentists’ offices, hospitals, retail stores, health clubs,
museums, libraries, private schools, and day care centers. An example of
discrimination would include a doctor or a dentist who categorically refuses to
treat all persons with HIV/AIDS.
Can a public accommodation deny service to a person with HIV/AIDS by
alleging a direct threat to the health and safety of others?
Almost never. Persons with HIV/AIDS will rarely, if ever, pose a direct
threat in a public accommodation.
Are all health care providers required to treat all persons with
No. A health care provider is only required to treat a person who is seeking
treatment or services within that provider’s area of expertise. If the patient
falls outside the health care provider’s area of specialization, that provider
can refer the patient with HIV/AIDS to another provider in an appropriate
What services do public accommodations have to provide to persons with
The ADA requires public accommodations to remove all physical barriers to
access in their existing facilities when it is easily accomplishable and
affordable to do so. In addition, a public accommodation is required to provide
auxiliary aids and services where necessary to ensure effective communication
with individuals with impairments whenever reasonably possible.The impairment can be one that the person has had from birth, or one that has
recently developed as a result of an AIDS-related complication. Persons with
HIV/AIDS may have less strength to open doors, or they may tire more easily when
walking or climbing stairs. They may use a wheelchair, electric scooter, or
other device for mobility purposes.
Will having HIV affect my ability to be hired?
No. Employers cannot fail to hire qualified people simply because they fear
the individual will become sick in the future. The hiring decision must be based
on the individual’s ability at the current time. In addition, employers cannot
decide against hiring qualified people with HIV/AIDS because they are afraid of
higher medical insurance costs, worker’s compensation costs or absenteeism.
Will my HIV status be recorded in my employee file?
Yes. However, the ADA requires that medical information be kept confidential.
The information must be kept apart from general personnel files as a separate,
confidential medical record available only under limited conditions.
Can an employer ask about an applicant’s or employee’s HIV status?
No. An employer may not ask or require a job applicant to take a medical
examination before making a job offer. Neither can an employer ask about a
disability or the nature or severity of a disability before making a job offer.
An employer can, however, ask about the ability to perform specific job
functions vital to the position.HIV-positive status alone, without some complication, can almost never be the
basis for a refusal to hire after a post-offer medical examination. An employer
may make a job offer conditional on the satisfactory result of a post-offer
medical examination or inquiry if this is required of all new employees in the
same job category.
Does an employer have to provide health insurance to an employee with
The ADA prohibits employers from discriminating on the basis of disability in
the provision of health insurance to their employees and/or from entering into
contracts with health insurance companies that discriminate on the basis of
disability.Insurance distinctions that are not based on disability and that are applied
equally to all insured employees do not violate the ADA. However, recent court
rulings regarding medical caps on health insurance put this protection in
Are there other laws that cover employment?
Equal Employment Opportunity Laws (EEOP) cover all private employers, state
and local governments, and education institutions that employ 15 or more
individuals. They also cover private and public employment agencies, labor
organizations, and joint labor management committees controlling apprenticeship
What employment practices are covered by the ADA?
Practices include hiring, firing, job application procedures, job interviews,
job assignment, training and promotions, and wage benefits, including health
insurance, leave, and other employment related activities.Employers who know an employee is HIV-positive are required to make
"reasonable accommodations" for that person.
What is a "reasonable accommodation"?
A "reasonable accommodation" is any modification or adjustment to a job,
application process, or work environment that will enable the qualified
applicant or employee with a disability to perform the essential functions of a
job, or enjoy the benefits and privileges of employment.For example, if an HIV-infected person required two-hours off, bimonthly, for
doctor visits, an employer might allow him/her to make up the time by working
late on those days. An employer is not required to make an accommodation if it
would impose an undue hardship on the operation or business.
When is an employer required to make a reasonable accommodation?
An employer is only required to accommodate a "known" disability of a
qualified applicant or employee. An employee must make the employer aware of
the need for a "reasonable accommodation."If the employee does not want to disclose that he/she has HIV or AIDS, it may
be sufficient for the employee to say that he or she has an illness or
disability covered by the ADA and needs specific accommodations. However, the
employer can require medical documentation of the disability.
Are health and safety issues valid reasons for refusing to hire or retain a
person who has HIV/AIDS?
Yes, but only under limited circumstances. If it is shown through objective,
medically supportable methods that an individual poses a "direct threat" and can
cause substantial harm in the work place, it is possible that an employer can
decide not to hire or retain an individual due to his/her medical status.However, transmission of HIV will rarely be a legitimate "direct threat"
issue since it is medically established that HIV can only be spread through the
transmission of certain body fluids and not through casual contact.
What can someone do who believes he or she is being discriminated against
because of HIV status?
Contact the US Department of Justice within 180 days of when the
discrimination occurred:US Department of Justice, Civil Rights Division, Disability Rights Section,
P.O. Box 66738, Washington, DC 20035-6738, http://www.usdoj.gov.If the discrimination is employment related, contact the Equal Employment
Opportunity Commission at (800) 669-4000 (voice) or (800) 669-6820 (TDD).
For additional information:
ADA Information Line
(to obtain documents or to ask
Job Accommodation Network (JAN)
(federally funded network for
information for employers about making reasonable accommodations for employees
Fair Housing Information Clearinghouse
(information on housing-related
800-343-3442 (voice) • 800-483-2209 (TDD)
HIV/AIDS Spectrum: Mental Health Training and Education of Social Worker
Project (for information on workshops and related educational materials
specifically designed for social workers) 202-403-8600
Factsheet source: World AIDS Day 1999 – AIDS – End the Silence, Listen,
Learn, Live! American Association for World Health www.aawhworldhealth.org
Discriminating against people who are infected with HIV/AIDS or anyone thought
to be at-risk of infection violates individual human rights and endangers public
health. Every person infected with and affected by HIV/AIDS deserves compassion
and support, regardless of the circumstances surrounding their infection.
Education is crucial in getting this message out.