Questions and Answers: The Americans with Disabilities Act And the Rights of Persons with HIV/AIDS To Obtain Occupational Training and State Licensing
Questions and Answers:
The Americans with Disabilities Act
And the Rights of Persons with HIV/AIDS
To Obtain Occupational Training and State Licensing
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Questions and Answers:
The Americans with Disabilities Act
And the Rights of Persons with HIV/AIDS
To Obtain Occupational Training and State Licensing
Q: What is the ADA?
A: The Americans with Disabilities Act (ADA) gives Federal civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications.
Q: Are people with HIV or AIDS protected by the ADA?
A: Yes. An individual is considered to have a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Persons with HIV disease, either symptomatic or asymptomatic, have physical impairments that substantially limit one or more major life activities and thus are protected by the ADA.
Persons who are discriminated against because they are regarded as being HIV-positive are also protected. For example, the ADA would protect a person who is denied an occupational license or admission to a school on the basis of a rumor or assumption that he has HIV or AIDS, even if he does not.
Q: Does the ADA prohibit State licensing agencies and occupational training schools for occupations such as barbering, massage therapy, and home healthcare assistance from discriminating against individuals with HIV or AIDS?
A: Yes. State licensing agencies and public trade schools for barbering, cosmetology, massage therapy, and other occupations are covered by Title II of the ADA as agencies or programs of the State or local government. Title II of the ADA applies to State and local governments, their departments and agencies, and any other instrumentalities or special-purpose districts of State or local governments. Title II protects qualified individuals with disabilities from discrimination on the basis of disability in all the services, programs, and activities of State and local governments.
Private trade schools are covered by Title III of the ADA, which governs public accommodations. A public accommodation is a private entity that owns, operates, leases, or leases to a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors’ offices, dentists’ offices, hospitals, retail stores, health clubs, museums, libraries, private schools, and daycare centers. Private clubs and places run by religious organizations are not considered places of public accommodation. Title III prohibits public accommodations from denying persons with disabilities, on the basis of disability, the equal opportunity to use and enjoy their goods, services, or facilities.
Consequently, a public or private entity cannot deny a person with HIV an occupational license or admission to a trade school because of his or her disability.
Examples of discrimination against persons with HIV/AIDS would include, for example:
- a certificate program for health aides having a blanket policy denying admission to anyone with HIV; and
- a cosmetology school denying admission to an HIV-positive individual because State cosmetology regulations require that cosmetologists be free from contagious, communicable, or infectious disease.
Q: Can a licensing entity, a trade school, or a training program exclude a person with HIV/AIDS because of their HIV status?
A: In almost every instance, the answer to this question is no. Persons with disabilities may be excluded from the activities or services of a private or public entity because of a health concern only if they pose a significant risk to the health or safety of others, known as a “direct threat,” that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the entity’s policies, practices, or procedures. The determination that a person poses a significant risk to the health or safety of others may not be based on generalizations or stereotypes about a particular disability; it must be based on an individualized assessment of the person with the disability that relies on current medical evidence.
Transmission of HIV in this context will rarely raise a legitimate “direct threat” issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to an infant during pregnancy, birth, or breastfeeding. HIV cannot be transmitted by casual contact. Thus, circumstances do not exist for the transmission of HIV in a school or workplace setting, including those involving massage therapy, cosmetology, or home healthcare services. For example, a cosmetology school’s refusal to admit a qualified applicant who is HIV-positive because of unfounded fears or beliefs about risks of transmission of HIV during work as a cosmetologist would violate the ADA.
Q: May licensing entities or trade schools require an applicant to provide a doctor’s certification that he or she is free of infectious, communicable, or contagious disease?
A: For the purposes of occupational training and licensing requirements, the terms “infectious, communicable, or contagious disease” must exclude diseases, such as HIV, not transmitted through casual contact or through the usual practice of the occupation for which a license is required. Consequently, licensing boards and trade schools must amend their policies to state that such a certification requirement excludes diseases not transmitted through casual contact or through the usual practice of the occupation for which a license is required.
Duplication of this document is encouraged. July 2009
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
QUESTIONS AND ANSWERS:
THE AMERICANS WITH DISABILITIES ACT
AND PERSONS WITH HIV/AIDS
I. Introduction
1. Q: What is the ADA?
A: The Americans with Disabilities Act (ADA) gives federal
civil rights protections to individuals with disabilities similar
to those provided to individuals on the basis of race, color,
sex, national origin, age, and religion. It guarantees equal
opportunity for individuals with disabilities in public
accommodations, employment, transportation, State and local
government services, and telecommunications.
2. Q: Are people with HIV or AIDS protected by the ADA?
A: Yes. An individual is considered to have a "disability"
if he or she has a physical or mental impairment that
substantially limits one or more major life activities, has a
record of such an impairment, or is regarded as having such an
impairment. Persons with HIV disease, both symptomatic and
asymptomatic, have physical impairments that substantially limit
one or more major life activities and are, therefore, protected
by the law.
Persons who are discriminated against because they are regarded
as being HIV-positive are also protected. For example, a person
who was fired on the basis of a rumor that he had AIDS, even if
he did not, would be protected by the law.
Moreover, the ADA protects persons who are discriminated against
because they have a known association or relationship with an
individual who is HIV-positive. For example, the ADA would
protect an HIV-negative woman who was denied a job because her
roommate had AIDS.
II. Employment
1. Q: What employers are covered by the ADA?
A: The ADA prohibits discrimination by all private
employers with 15 or more employees. In addition, the ADA
prohibits all public entities, regardless of the size of their
work force, from discriminating in employment against qualified
individuals with disabilities.
2. Q: What employment practices are covered by the ADA?
A: The ADA prohibits discrimination in all employment
practices. This includes not only hiring and firing, but job
application procedures (including the job interview), job
assignment, training, and promotions. It also includes wages,
benefits (including health insurance), leave, and all other
employment-related activities. Examples of employment
discrimination against persons with HIV/AIDS would include:
- An automobile manufacturing company that had a blanket policy
of refusing to hire anyone infected with the AIDS virus.
- An airline that extended an offer to a job applicant and then
rescinded the offer when, after the applicant took an HIV test as
part of the airline s required medical examination, the applicant
tested positive for HIV.
- A restaurant that fired a waitress after learning that the
waitress had HIV.
- A university that fired a physical education instructor after
learning that the instructor s boyfriend had AIDS.
- A company that contracted with an insurance company that had a
cap on health insurance benefits provided to employees for
HIV-related complications, but not on other health insurance
benefits.
3. Q: Who is protected by the employment provisions of the
ADA?
A: The ADA prohibits employment discrimination against
qualified individuals with disabilities. A "qualified individual
with a disability" is a person who meets legitimate skill,
experience, education, or other requirements of an employment
position he or she holds or seeks, and who can perform the
"essential functions" of the position with or without reasonable
accommodation.
4. Q: What is an "essential function" of the job?
A: Essential functions of the job are those core duties
that are the reason the job position exists. For example, an
essential function of a typist s position is the ability to type;
an essential function of a bus driver s position is the ability
to drive.
Requiring the ability to perform "essential" functions assures
that an individual with a disability will not be considered
unqualified because of his or her inability to perform marginal
or incidental job functions.
5. Q: What is a "reasonable accommodation"?
A: A "reasonable accommodation" is any modification or
adjustment to a job, the job application process, or the work
environment that will enable a qualified applicant or employee
with a disability to perform the essential functions of the job,
participate in the application process, or enjoy the benefits and
privileges of employment. Examples of "reasonable
accommodations" include: making existing facilities readily
accessible to and usable by employees with disabilities;
restructuring a job; modifying work schedules; acquiring or
modifying equipment; and reassigning a current employee to a
vacant position for which the individual is qualified.
For example:
- An HIV-positive accountant required two hours off, bimonthly,
for visits to his doctor. He was permitted to take longer lunch
breaks and to make up the time by working later on those days.
- A supermarket check-out clerk with AIDS had difficulty standing
for long periods of time. Her employer provided her with a stool
so that she could sit down at the cash register when necessary.
- A secretary with AIDS needed to take frequent rest breaks
during her work day. Her boss allowed her to take as many breaks
as she needed throughout the day, so long as she completed her
work before going home each evening.
- A machine operator required time off from work during his
hospitalization with pneumocystis carinii pneumonia. He had
already used up all his sick leave. His employer allowed him to
either take leave without pay, or to use his accrued vacation
leave.
- An HIV-positive computer programmer suffered bouts of nausea
caused by his medication. His employer allowed him to work at
home on those days that he found it too difficult to come into
the office. His employer provided him with the equipment
(computer, modem, fax machine, etc.) necessary for him to work at
home.
- An HIV-positive newspaper editor who tired easily from walking
began to use an electric scooter to get around. His employer
installed a ramp at the entrance to the building in which the
editor worked so that the editor could use his scooter at the
office.
6. Q: Does an employer always have to provide a needed
reasonable accommodation?
A: An employer is not required to make an accommodation if
it would impose an undue hardship on the operation of the
business. An undue hardship is an action that requires
"significant difficulty or expense" in relation to the size of
the employer, the resources available, and the nature of the
operation. Determination as to whether a particular
accommodation poses an undue hardship must be made on a
case-by-case basis.
Customer or co-worker attitudes are not relevant. The potential
loss of customers or co-workers because an employee has HIV/AIDS
does not constitute an undue hardship.
An employer is not required to provide an employee s first choice
of accommodation. The employer is, however, required to provide
an effective accommodation, i.e., an accommodation that meets the
individual s needs.
7. Q: When is an employer required to make a reasonable
accommodation?
A: An employer is only required to accommodate a "known"
disability of a qualified applicant or employee. Thus, it is the
employee s responsibility to tell the employer that he or she
needs a reasonable accommodation. If the employee does not want
to disclose that he or 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, that the illness or disability
causes certain problems with work, and that the employee wants a
reasonable accommodation. However, an employer can require
medical documentation of the employee s disability and the
limitations resulting from that disability.
8. Q: What if an employer has concerns about an applicant s
ability to do the job in the future?
A: Employers cannot choose not to hire a qualified person
now because they fear the worker will become too ill to work in
the future. The hiring decision must be based on how well the
individual can perform now. In addition, employers cannot decide
to not hire qualified people with HIV or AIDS because they are
afraid of higher medical insurance costs, worker s compensation
costs, or absenteeism.
9. Q: Can an employer consider health and safety when deciding
whether to hire an applicant or retain an employee who has
HIV/AIDS?
A: Yes, but only under limited circumstances. The ADA
permits employers to establish qualification standards that will
exclude individuals who pose a direct threat -- i.e., a
significant risk of substantial harm -- to the health or safety
of the individual or of others, if that risk cannot be eliminated
or reduced below the level of a "direct threat" by reasonable
accommodation. However, an employer may not simply assume that a
threat exists; the employer must establish through objective,
medically supportable methods that there is a significant risk
that substantial harm could occur in the workplace. By requiring
employers to make individualized judgments based on reliable
medical or other objective evidence -- rather than on
generalizations, ignorance, fear, patronizing attitudes, or
stereotypes -- the ADA recognizes the need to balance the
interests of people with disabilities against the legitimate
interests of employers in maintaining a safe workplace.
Transmission of HIV will rarely be a legitimate "direct threat"
issue. It is medically established that HIV can only be
transmitted by sexual contact with an infected individual,
exposure to infected blood or blood products, or perinatally from
an infected mother to infant during pregnancy, birth, or breast
feeding. HIV cannot be transmitted by casual contact. Thus,
there is little possibility that HIV could ever be transmitted in
the workplace.
For example:
- A superintendent may believe that there is a risk of employing
an individual with HIV disease as a schoolteacher. However,
there is little or no likelihood of a direct exchange of body
fluids between the teacher and her students, and thus, employing
this person would not pose a direct threat.
- A restaurant owner may believe that there is a risk of
employing an individual with HIV disease as a cook, waiter or
waitress, or dishwasher, because the employee might transmit the
disease through the handling of food. However, HIV and AIDS are
specifically not included on the Centers for Disease Control and
Prevention ("CDC") list of infectious and communicable diseases
that are transmitted through the handling of food. Thus, there
is little or no likelihood that employing persons with HIV/AIDS
in food handling positions would pose a risk of transmitting HIV.
- A fire chief may believe that an HIV-infected firefighter may
pose a risk to others when performing mouth-to-mouth
resuscitation. However, current medical evidence indicates that
HIV cannot be transmitted by the exchange of saliva. Thus, there
is little or no likelihood that an HIV-infected firefighter would
pose a risk to others.
Having HIV or AIDS, however, might impair an individual s ability
to perform certain functions of a job, thus causing the
individual to pose a direct threat to the health or safety of the
individual or others.
For example:
- A worker who operates heavy machinery and who has been
suffering from dizzy spells caused by the medication he is taking
might pose a direct threat to his or someone else s safety. If
no reasonable accommodation is available (e.g., an open position
to which the employee could be reassigned), the employer would
not violate the ADA by laying the worker off.
- An airline pilot who is experiencing bouts of dementia would
pose a direct threat to herself and her passengers safety. It
would not violate the ADA if the airline prohibited her from
flying.
As noted above, the direct threat assessment must be an
individualized assessment. Any blanket exclusion -- for example,
refusing to hire persons with HIV/AIDS because of the attendant
health risks -- would probably violate the ADA as a matter of
law.
10. Q: When can an employer inquire into an applicant s or
employee s HIV status?
A: An employer may not ask or require a job applicant to
take a medical examination before making a job offer. It cannot
make any pre-offer inquiry about a disability or the nature or
severity of a disability. An employer may, however, ask
questions about the ability to perform specific job functions.
Thus, for example, the owner of an outdoor cafe could not ask an
individual with KS lesions who was applying for the position of a
waiter whether the applicant had AIDS. The owner could, however,
ask the applicant whether he can be in the sun for extended
periods of time.
An employer may condition a job offer on the satisfactory result
of a post-offer medical examination or medical inquiry if this is
required of all entering employees in the same job category.
However, if an individual is not hired because a post-offer
medical examination or inquiry reveals a disability, the
reason(s) for not hiring must be job-related and consistent with
business necessity. HIV-positive status alone, without some
accompanying complication (e.g., dementia, loss of vision, etc.)
can almost never be the basis for a refusal to hire after a
post-offer medical examination.
After a person starts work, a medical examination or inquiry of
an employee must be job-related and consistent with business
necessity. Employers may conduct employee medical examinations
where there is evidence of a job performance or safety problem,
when examinations are required by other Federal laws, when
examinations are necessary to determine current "fitness" to
perform a particular job, and/or where voluntary examinations are
part of employee health programs. For example, an employer could
not ask an employee who had lesions on his face or who had
recently lost a significant amount of weight, but whose job
performance had not changed in any way, whether the employee had
AIDS. An employer could, however, require an employee who was
experiencing frequent dizzy spells, and whose work was suffering
as a result, to undergo a medical examination.
11. Q: What obligations does an employer have if an employee
discloses his or her HIV status?
A: The ADA requires that medical information be kept
confidential. This information must be kept apart from general
personnel files as a separate, confidential medical record
available only under limited conditions.
12. Q: What obligations does an employer have to provide health
insurance to employees with HIV/AIDS?
A: 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, however,
and that are applied equally to all insured employees, do not
discriminate on the basis of disability and do not violate the
ADA.
Thus, for example, blanket pre-existing condition clauses that
exclude from the coverage of a health insurance plan the
treatment of all physical conditions that predate an individual s
eligibility for benefits are not distinctions based on disability
and do not violate the ADA. A pre-existing condition clause that
excluded only the treatment of HIV-related conditions, however,
is a disability-based distinction and would likely violate the
ADA.
Similarly, a health insurance plan that capped benefits for the
treatment of all physical conditions at $50,000 per year does not
make disability-based distinctions and does not violate the ADA.
A plan that capped benefits for the treatment of all physical
conditions, except AIDS, at $50,000 per year, and capped the
treatment for AIDS-related conditions at $10,000 per year does
distinguish on the basis of disability and probably violates the
ADA.
13. Q: What can an applicant or employee do if he or she
believes that he or she is being discriminated against on the
basis of his or her HIV status?
A: An applicant or employee who believes that he or she is
the victim of HIV discrimination should first try to explain to
his or her employer what the ADA requires. If the issue is not
resolved satisfactorily, the employee may file a complaint with
the nearest Equal Employment Opportunity Commission office. The
complaint must be filed within 180 days of when the
discrimination occurred. The EEOC will investigate the complaint
and either act to correct the problem or give the employee a
"right to sue" letter. The right to sue letter permits the
employee to sue the employer directly. The employee may be
entitled to the job he or she was denied, back pay, benefits, or
other compensatory and punitive damages.
For more information about the ADA s employment requirements,
please call the Equal Employment Opportunity Commission at
(800)669-4000 (voice) or (800)669-6820 (TDD).
III. Public Accommodations
1. Q: What is a public accommodation?
A: A public accommodation is a private entity that owns,
operates, leases, or leases to a place of public accommodation.
Places of public accommodation include a wide range of entities,
such as restaurants, hotels, theaters, doctors offices,
dentists offices, hospitals, retail stores, health clubs,
museums, libraries, private schools, and day care centers.
Private clubs and places run by religious organizations are not
considered places of public accommodation.
2. Q: What constitutes discrimination?
A: Discrimination is the failure to give a person with a
disability the equal opportunity to use or enjoy the public
accommodation s goods, services, or facilities. Examples of ADA
violations would include:
- A dentist who categorically refused to treat all persons with
HIV/AIDS.
- A moving company that refused to move the belongings of a
person who had AIDS, or that refused to move the belongings of a
person whose neighbor had AIDS.
- A health club that charged extra fees to persons who were
HIV-positive, or that prohibited HIV-positive members from using
the steam room or sauna, or that limited the hours during which
HIV-positive members could use the club s facilities.
- A day care center that categorically refused admission to
HIV-positive children or the children of HIV-positive mothers.
- A funeral home that refused to provide funeral services for a
person who died from AIDS-related complications.
- A building owner who refused to lease space to a not-for-profit
organization that provided services to persons living with
HIV/AIDS.
The ADA also requires public accommodations to take steps to
ensure that persons with disabilities have equal access to their
goods and services. For example, the ADA requires public
accommodations to make reasonable changes in their policies,
practices, and procedures; to provide communication aids and
services; and to remove physical barriers to access when it is
readily achievable to do so.
3. Q: What types of changes in policies, practices, or
procedures would a public accommodation have to make to ensure
equal access to persons with HIV/AIDS?
A: Even though a public accommodation may not intend to
discriminate against persons with HIV/AIDS, its customary way of
doing business may unintentionally exclude persons with HIV/AIDS
or provide them with lesser services. If reasonable
modifications in the business policies, practices, or procedures
would rectify the problem, the public accommodation would be
required to make those changes.
For example:
- A hotel does not allow pets. It would be a reasonable
modification of the hotel s policy to allow a person who has lost
his vision from cytomegalovirus retinitis (CMV), an AIDS-related
illness, to have his guide dog stay with him in the hotel.
- A pharmacy requires customers to stand in line to be served. A
person with AIDS finds it too tiring to stand in line. It would
be a reasonable modification of the pharmacy s procedures to
allow the person to announce her presence and/or take a number
and then sit down until her prescription is filled. It would
also be a reasonable modification if the pharmacy provided
curbside service and/or home delivery.
4. Q: Are health care providers required to treat all persons
with HIV/AIDS, regardless of whether the treatment being sought
is within the provider s area of expertise?
A: No. A health care provider is not required to treat a
person who is seeking or requires treatment or services outside
the provider s area of expertise. However, a health care
provider cannot simply refer a patient with HIV/AIDS to another
provider simply because the patient has HIV/AIDS. The referral
must be based on the treatment the patient is seeking, not the
patient s HIV status alone.
For example:
- An HIV-positive individual suffers a severe allergic drug
reaction while on vacation and goes to the nearest emergency
room. The hospital routinely treats people suffering from
allergic drug reactions. Sending the patient to another hospital
that allegedly has an "AIDS unit" would violate the ADA.
- An HIV-positive individual is in a car accident and suffers
severe third degree burns. He is taken to the nearest hospital,
which does not have a burn unit. Sending the patient to another
hospital that has a burn unit would not violate the ADA.
- A person with AIDS goes to the dentist for a teeth cleaning.
The dentist refers her to another dentist because the dentist
claims he is "not equipped" to treat persons with AIDS. Because
there is no special equipment necessary for providing routine
dental care to persons with HIV/AIDS, this "referral" would
violate the ADA.
- A person with AIDS goes to the dentist because she has an oral
lesion on the roof of her mouth. The dentist tells the patient
that she has a lesion that the dentist is not able to identify
and does not know how to treat. The dentist refers the patient
to an oral surgeon for diagnosis and treatment of the lesion,
with the understanding that the patient will return to the
dentist for the provision of routine dental care. This would not
violate the ADA.
5. Q: What types of communication aids and services would a
public accommodation be required to provide to persons with
HIV/AIDS?
A: A public accommodation is required to provide auxiliary
aids and services where necessary to ensure effective
communication with individuals with disabilities, unless an undue
burden (i.e., a significant difficulty or expense) or fundamental
alteration would result. Thus, if a person with HIV or AIDS has
an impairment -- such as a vision, hearing, or speech impairment
-- that substantially limits his or her ability to communicate,
the public accommodation must provide auxiliary aids or services
that will ensure equal access to the goods, services, or
facilities that the public accommodation offers. 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.
The type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the length
and complexity of the communication involved. Some examples of
auxiliary aids and services are -- exchanging written notes,
typing back and forth on a computer, providing a qualified sign
language interpreter, or having a telecommunication device for
deaf persons (TDD) for customers with hearing impairments;
reading aloud, providing large print, audiotapes, or braille
materials, or locating merchandise for customers with vision
impairments; and using TDD s or computer terminals for persons
with speech impairments.
For example:
- A person who was born deaf and uses American Sign Language as
his primary means of communication goes to his physician to
receive the results of his HIV test. The test results have come
back positive. The physician may be required to obtain and pay
for a sign language interpreter, as the communication between the
physician and his patient is likely to be lengthy and complex and
may only be effective if a sign language interpreter is provided.
- A person with AIDS has recently lost his vision as a result of
an AIDS-related complication. It would be appropriate for a
restaurant waiter to read aloud the contents of the menu.
6. Q: Can a public accommodation charge for reasonable
modifications in its policies, practices, or procedures, or for
the provision of communication aids and services?
A: No. A public accommodation may not impose a surcharge
on a particular individual with a disability or any group of
individuals with disabilities to cover the costs necessary to
provide nondiscriminatory treatment.
For example:
- A law firm routinely prepares wills and trusts. A woman with
AIDS who recently has suffered vision loss requests that the firm
draft her will and guardianship papers, and requests that the
firm provide her with all drafts of her documents in large print.
The law firm cannot charge the woman extra for preparing the
documents in large print.
7. Q: Can a public accommodation exclude a person with
HIV/AIDS because that person allegedly poses a direct threat to
the health and safety of others?
A: In almost every instance, the answer to this question is
no. Persons with HIV/AIDS will rarely, if ever, pose a direct
threat in the public accommodations context.
A public accommodation may exclude an individual with a
disability from participation in an activity, if that
individual s participation would result in a direct threat to the
health or safety of others. "Direct threat," however, is defined
as a "significant risk to the health or safety of others" that
cannot be eliminated or reduced to an acceptable level by
reasonable modifications to the public accommodation s policies,
practices, or procedures, or by the provision of appropriate
auxiliary aids or services. The determination that a person
poses a direct threat to the health or safety of others may not
be based on generalizations or stereotypes about the effects of a
particular disability; it must be based on an individual
assessment that considers the particular activity and the actual
abilities and disabilities of the individual. The individual
assessment must be based on reasonable judgment that relies on
current medical evidence.
For example:
- A restaurant s refusal to admit an individual with AIDS would
violate the ADA, because HIV cannot be transmitted through the
casual contact typical among restaurant patrons.
- A gynecologist s refusal to treat an HIV-positive woman would
be a violation. Health care providers are required to treat all
persons as if they are infectious for HIV and other bloodborne
pathogens, and must use universal precautions (gloves, mask,
gown, etc.) to protect themselves from the transmission of
infectious diseases. Failure to treat a person who acknowledges
her HIV-positive status would be a violation, because so long as
the physician utilizes universal precautions, it is safe to treat
persons with HIV/AIDS.
- A day care center s refusal to admit a child who is
HIV-positive, because of the fear that the child might bite and
might therefore transmit HIV to other children, is also a
violation. It is incorrect to assume that all young children
bite. Moreover, current medical evidence indicates that HIV is
not transmitted by saliva. Even if an HIV-positive child were to
bite another child, the only bodily fluid that would be
transmitted from the infected child to the non-infected child
would be saliva.
- A health club s revocation of an HIV-positive person s
membership, because of the fear that the person may transmit the
virus through the sweat he leaves on the club s weight machines,
also violates the ADA. There is no evidence that HIV can be
transmitted by sweat.
8. Q: What types of physical barriers to access is a public
accommodation required to remove? Why is this important to
persons with HIV/AIDS?
A: Persons with HIV or AIDS may find that they have less
strength to open doors, or may tire more easily when walking or
climbing stairs. They may use a wheelchair, electric scooter, or
other device for mobility purposes. The ADA s barrier removal
requirements address these situations.
The ADA requires that public accommodations remove all physical
barriers to access in their existing facilities, where it is
"readily achievable" to do so. "Readily achievable" means
"easily accomplishable and able to be carried out without much
difficulty or expense."
Examples of barrier removal may include installing ramps, making
curb cuts in sidewalks and entrances, rearranging furniture,
widening doors, installing accessible door hardware, and
installing grab bars in toilet stalls. The obligation to engage
in readily achievable barrier removal is a continuing one.
The ADA requires that all newly constructed places of public
accommodation be readily accessible to and usable by individuals
with disabilities. The ADA also requires that all alterations
made to existing facilities be readily accessible to and usable
by individuals with disabilities.
9. Q: What can a person do if he or she is being discriminated
against by a place of public accommodation on the basis of his or
her HIV status?
A: A person who believes that he or she is being
discriminated against should first try to educate the manager or
owner of the public accommodation about what the ADA requires.
The person should suggest reasonable policy changes that will
provide equal access, request a communication aid, or ask that a
barrier be removed. An individual may also wish to seek out
mediation services provided by community or private mediation
services. If the situation is not resolved satisfactorily, a
complaint may be filed with the Department of Justice.
The Department of Justice is authorized to investigate complaints
and to bring lawsuits in cases of general public importance, or
where there is a "pattern or practice" of discrimination. Due to
resource limitations, the Department is unable to investigate
every complaint. The Department may seek injunctive relief
(i.e., having the public accommodation correct its discriminatory
practices), money damages, and civil penalties. Complaints
should be sent to the following address:
Disability Rights Section
Civil Rights Division
Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
Individuals are also entitled to bring private lawsuits. If a
person files a private lawsuit, he or she may not seek money
damages. However, the person may seek injunctive relief and
attorney s fees and costs.
IV. State and Local Governments
1. Q: Does the ADA also prohibit State and local governments
from discriminating against persons with HIV/AIDS?
A: Yes. The ADA applies to all State and local
governments, their departments and agencies, and any other
instrumentalities or special purpose districts of State or local
governments.
For example:
- A public school system may not prohibit an HIV-positive child
from attending elementary school.
- A county hospital may not refuse to treat persons with
HIV/AIDS.
- A local police station must make sure that TDD users, including
persons with HIV/AIDS, can call 911 and other emergency phone
numbers directly, without having to go through a relay system.
- A city emergency medical technician may not refuse to transport
a person with AIDS.
- A state-owned nursing home may not refuse to accept patients
with HIV/AIDS.
- A county recreation center may not refuse admission to a summer
camp program to a child whose brother has AIDS.
2. Q: What can a person do if he or she is being
discriminated against by a State or local government on the basis
of his or her HIV status?
A: A person who believes he or she is being discriminated
against by a State or local government should first try to
educate officials involved about the ADA s requirements.
Individuals may also file a complaint with the Department of
Justice. Complaints must be filed within 180 days of when the
discrimination occurred. Complaints should be sent to the
following address:
U. S. Department of Justice
Civil Rights Division
Disability Rights Section
Post Office Box 66738
Washington, D.C. 20035-6738
Individuals are also entitled to bring private ADA lawsuits
against State and local governments nd seek injunctive relief,
compensatory damages, and reasonable attorney s fees.
V. Telecommunications, Housing, Air Transportation
1. Q: What is a relay service?
A: Telecommunications relay services bridge the gap between
TDD users -- including persons with HIV/AIDS who have recently
experienced hearing loss -- and regular voice telephone users.
The relay service enables persons who have TDD s to carry on
telephone conversations with persons who do not, through use of
an intermediary person -- the relay operator. The relay operator
reads the TDD message to the person without the TDD and types the
person s spoken message back to the TDD user.
The ADA requires the telephone industry to provide free telephone
relay service through 800 numbers. The relay service must be
available twenty-four hours a day, seven days a week, without
restrictions on the type, length, or number of calls made by any
relay user.
2. Q: Does the ADA prohibit discrimination in the sale,
rental, and other terms of housing?
A: Housing discrimination is not covered by the ADA.
However, the Fair Housing Amendments Act of 1988, which is
primarily enforced by the U.S. Department of Housing and Urban
Development, prohibits housing discrimination against persons
with disabilities, including persons with HIV/AIDS. Persons who
believe that they have been discriminated against in housing
because of their HIV-positive status should contact their State
or local government s Fair Housing and Equal Opportunity Office.
3. Q: Does the ADA prohibit discrimination by airlines?
A: Discrimination by air carriers in areas other than
employment is not covered by the ADA, but rather, by the Air
Carrier Access Act (ACAA). Persons who believe that they have
been discriminated against by airlines because of their
HIV-positive status should contact the U.S. Department of
Transportation.
VI. Resources
The following section provides the telephone numbers of federal
agencies providing information on the ADA, as well as the
telephone numbers of other federal agencies providing information
of interest to persons living with HIV/AIDS.
Department of Justice offers technical assistance on the ADA
Standards for Accessible Design and other ADA provisions applying
to businesses, non-profit service agencies, and state and local
government programs; also provides information on how to file ADA
complaints.
ADA Information Line for documents and questions
800-514-0301 (Voice) 800-514-0383 (TDD)
Electronic bulletin board 202-514-6193
DOJ World Wide Web Home Page http://www.usdoj.gov
Equal Employment Opportunity Commission offers technical
assistance on the ADA provisions applying to employment; also
provides information on how to file ADA complaints.
Employment questions
800-669-4000 (Voice) 800-669-6820 (TDD)
Employment documents
800-669-3362 (Voice) 800-800-3302 (TDD)
Department of Transportation offers technical assistance on ADA
provisions applying to public transportation and air carrier
access.
ADA documents and questions
202-366-1656 (Voice) 202-366-4567 (TDD)
ADA legal questions
202-366-1936 (Voice) TDD: use relay service
ADA complaints and enforcement
202-366-2285 (Voice) 202-366-0153 (TDD)
Electronic bulletin board 202-366-3764
Air Carrier Access Act questions
202-366-4859 (voice) TDD: use relay service
ACAA complaints and enforcement
202-267-5794 (voice) 202-267-9730 (TDD)
Federal Communications Commission offers technical assistance on
ADA telephone relay service requirements.
Relay service - documents and questions
202-418-0190 (voice) 202-418-2555 (TDD)
Relay service - legal questions
202-418-2357 (voice) 202-418-0484 (TDD)
Access Board, or Architectural and Transportation Barriers
Compliance Board, offers technical assistance on the ADA
Accessibility Guidelines, and answers questions pertaining to
access to federal facilities and post offices.
ADA documents and questions
800-872-2253 (voice) 800-993-2822 (TDD)
Electronic bulletin board 202-272-5448
Department of Education funds ten regional centers to provide
technical assistance on the ADA.
Disability & Business Technical Assistance Centers
800-949-4232 (voice/ TDD)
(call automatically connects to the closest center)
President s Committee on Employment of People with Disabilities
funds the Job Accommodation Network (JAN), which provides advice
on accommodating employees with disabilities.
Job Accommodation Network
800-526-7234 (voice/ TDD)
Internal Revenue Service provides information and publications
about tax code provisions including tax credits (section 44) and
deductions (section 190) that can assist businesses in complying
with the ADA.
Tax code information
800-829-1040 (voice) 800-829-4059 (TDD)
To order Publication 907
800-829-3676 (voice) 800-829-4059 (TDD)
Legal questions
202-622-3110 (voice) TDD: use relay service
Fair Housing Information Clearinghouse is run by the Department
of Housing and Urban Development and provides information
concerning issues of housing access.
Information and publications
800-343-3442 (voice) 800-483-2209 (TDD)
CDC National AIDS Clearinghouse provides comprehensive HIV/AIDS
information to health professionals, managers of HIV/AIDS
programs, educators, and information providers.
National AIDS hotline
800-342-AIDS (voice) 800-243-7889 (TDD)
800-344-SIDA (Spanish)
Clearinghouse services
800-458-5231 (voice) 800-243-7012 (TDD)
HIV/AIDS Statistics Info Line
404-332-4570
Food and Drug Administration provides information concerning the
safety and efficacy of drugs, biologics, vaccines, and medical
devices used in the diagnosis, treatment, and prevention of HIV
infection, AIDS, and AIDS-associated opportunistic infections.
Office of AIDS and Special Health Issues
301-443-0104
Bulletin Board System
800-222-0185
National AIDS Program Office of the U.S. Public Health Service
provides information concerning the Public Health Service s
AIDS-related activities.
National AIDS Program Office
202-690-5471
Bulletin Board System
202-690-5423
This document is available in the following formats for
persons with disabilities --
- Braille
- Large print
- Audiocassette; and
- Electronic file on computer disk and electronic
bulletin board, (202) 514-6193.
To obtain these documents in alternate formats, call the
Department of Justice ADA Information Line, (800) 514-0301
(voice), (800) 514-0383 (TDD).
Note: Reproduction of this document is encouraged.