The Americans With Disabilities Act and HIV: Why does it still matter?

Long before they received their acclaimed stars on the Hollywood Walk of Fame, two well-respected and now household names, Denzel Washington and Tom Hanks, impressed Hollywood in the film Philadelphia. Released in 1993, the film centers around Attorney Andrew Beckett (Hanks), who was fired for being gay and living with HIV. Andy eventually seeks the counsel of Joe Miller (Washington), and a courtroom battle ensues. In one of the film’s most memorable scenes, while on the stand, Washington prompts Hanks to show the AIDS-related lesions on his skin, sending shockwaves and murmurs through the courtroom. This scene was one of the first fictional portrayals of HIV discrimination, as Hanks's character was fired once colleagues discovered his ailment and visible signs of AIDS at the time. Although the script was fictional, the discrimination and need for legal advocacy was rooted in reality. 

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Photo by Tima Miroshnichenko (Pexels)

Art imitates life: The Supreme Court case of Bragdon v. Abbott

Philadelphia was released in 1993, when misinformation, silence, and mass hysteria surrounding HIV were common. As a result, HIV-related discrimination also ran rampant. This was true until a regular visit to the dentist changed the trajectory of HIV advocacy.

While largely unknown, the Supreme Court Case of Sidney Abbott (1998) revolutionized the rights of individuals living with HIV. Sidney Abbott visited Dr. Bragdon, a dentist, to get a cavity filled.  Unfortunately, when Dr. Bragdon learned of Abbott’s HIV status, he refused to complete the procedure. Abbott argued this refusal was discriminatory, but Dr. Bragdon believed that HIV, without visible symptoms or illness, did not qualify as a disability under the Americans with Disabilities Act (ADA). 

Abbott fought back, and her case reached The Supreme Court, marking the first time the highest court heard a case specifically about HIV. Based on a close 5-4 split, the Supreme Court ruled that the ADA protects all individuals living with HIV regardless of symptomatic status. This landmark federal ruling meant that one’s HIV status could no longer be the basis of discrimination for issues like employment, housing, and medical care. 

Over 30 Years Later: The Importance of The Americans With Disabilities Act 

Passed in 1990, The Americans With Disabilities Act is one of the world’s most comprehensive and groundbreaking pieces of legislation to protect the rights of individuals with disabilities. The ADA was passed in 1990, but HIV-specific protections came in 1998. While not perfect, according to HIV.gov, the ADA prohibits discrimination by employers, places of public accommodation, and state and local government entities, including, but not limited to: hospitals, clinics, social services agencies, drug treatment centers, nursing homes, doctors’ offices, dentists’ offices, daycares, public pools, and fitness gyms. 

Under The ADA, disability is a legal definition, not a medical one. The ADA defines  “disability as a physical or mental impairment that substantially limits one or more major life activities.”  Despite lacking visible symptoms, the court ruled that HIV can substantially limit major life activities such as reproduction. Without this ruling, HIV would likely have limited protections under federal law. 

The ADA provides guidelines and “reasonable accommodations”  that ensure individuals with disabilities do not face discrimination. For example, in educational settings, the ADA can offer extended time or a separate testing environment for students with learning disabilities. In lodging and hospitality, the ADA may require public restaurants, hotels, and theaters to be physically accessible with features like ramps, wide doorways, and accessible restrooms. In entertainment, Closed Captions is a commonly used accommodation that the general public recognizes.

Before HIV was classified as a disability, there was little to no recourse for individuals with HIV who faced blatant discrimination. 

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AIDS quilt, Washington, D.C.

The Harsh Reality of HIV Discrimination

Because of massive medical and societal advancements, for many, it is now hard to envision a world of widespread HIV discrimination. However, fear-mongering was commonplace in the 1980s and early 1990s. 

In 1994, one year after Philadelphia was released, another case, Howe v. Hull, was controversial. In this medical case, an emergency room physician (Hull) initially argued that the patient’s condition (Howe) justified being transferred to another hospital, but an investigation by the ACLU of Ohio found that the decision was actually motivated by HIV stigma and discrimination. The hospital treated other patients with the same exact ailment as the plaintiff, so what was the difference? The plaintiff was the only patient living with HIV.  When asked for a justification, the physician stated, “This is a small community, and the admitting doctor does not feel comfortable admitting him,” and “ “if you get an AIDS patient in the hospital, you will never get him out.” The plaintiff recorded Hull’s remarks in his notes and testified to that conversation in court.

Even children were not immune from the harsh reality of HIV stigma and discrimination. Take the case of Ryan White. Ryan White, a 13-year-old hemophiliac from Indiana, symbolized the need for change. After acquiring HIV through a blood transfusion, Ryan faced relentless prejudice and fear from his community. In fact, parents and school officials opposed his attendance at his public school; some even harassed him and sent newspapers death threats when they reported his story. Before the ADA, Ryan’s discrimination was not illegal. 

Ryan’s case received national attention, but there are several other ways HIV discrimination can appear daily. Below represents a mere snapshot of the ways HIV discrimination can and has impacted one’s ability to thrive. 

1. Employment Discrimination:

   • Firing or demoting a medical employee upon learning about their HIV status, even if they are fully capable of fulfilling their job responsibilities.

   • Denying reasonable accommodations to employees with HIV, such as flexible work hours to accommodate medical appointments or providing a private space for medication administration.

   • Denying promotions due to concerns about one’s long-term health 

2. Housing Discrimination:

   • Denying housing or rental opportunities to individuals with HIV due to fears of transmission through vents 

   • Evicting tenants solely because they have disclosed their HIV status, despite no evidence of any health or safety risks.

3. Medical Care Discrimination:

• Refusing to provide medical treatment, such as drawing blood, to patients with HIV, regardless of their medical condition or need.

• Refusing to treat other ailments due to one’s prolonged HIV condition 

Even with ADA protections, HIV-based discrimination still occurs. The U.S. Attorney’s Office for the Northern District of California recently ruled that a tattoo studio violated the ADA when they refused to tattoo someone living with HIV. A man in Utah recently filed a lawsuit because his job offer as a state trooper was rescinded when he disclosed his HIV status. A man in Kansas sued his employer because he needed medical documentation for insurance and needed his manager to sign some forms. The manager did sign the forms, but the employee's hours were cut, and he was forced to change restaurant locations. An act that is retaliatory and illegal under the ADA.

The Past Is The Present: HIV Criminalization = Policing of Disability

Nearly all of the ADA’s protections become irrelevant if  “a direct threat,” to one’s and/or the public’s safety is established. Under this framework, HIV criminalization laws can remain on the books because they help “curb the threat of HIV transmission.” However, The Disability Rights Education & Defense Fund reminds us that this classification is “ harmful to public health” and  “ targeting HIV-positive people constitutes discrimination based on disability.”

In addition to other organizations, The Center for HIV Law and Policy remains committed to fighting HIV criminalization and other types of HIV discrimination. The crux of the injustice is relatively simple. HIV has been a protected disability for nearly 25 years. Yet still, as of 2023, 35 states have laws on the books that criminalize HIV exposure ( not transmission ). For some, this is a clear violation of the American With Disabilities Act.

In Philadelphia, the movie concludes with a slight silver lining; while he eventually succumbs to AIDS, the advocacy of Hanks and Washington leads the jury to award nearly $5 million in damages. While this issue played out on the big screen, thousands of individuals are fighting this battle daily, and you do not have to be Denzel Washington to see the injustice.