CUSHNER & BLOOM, P.C.
BROOKLINE, MA 02446
Tel. (617) 608-0019
T
Tttt6wdth=100></H4>- 608-001
MORE ON DISCRIMINATION AGAINST THE DISABLED:
|
OTHER AREAS OF DISCRIMINATION: |
|
__________________
____________________ |
|
Contact Me:
1170 Beacon Street, Brookline, MA 02446 By telephone: (617) 608-0019 By fax: (617) 608-0022
|
HIV INFECTION
AND THE
AMERICANS WITH DISABILITIES ACT
Disability
Defined.
Under the Americans with Disabilities
Act , a disability is defined as:
a physical
or mental impairment that substantially limits one or more
of the major
life activities of such individual; a record of such impairment;
or being
regarded as having such impairment.
Recent Supreme Court Decision.
The U.S. Supreme Court recently decided that a person infected with
the human
immunodeficiency virus (HIV) is a “disabled person” under the Americans
With
Disabilities Act of 1990 (ADA) even if the infection has not progressed
to the so-called
symptomatic phase because being infected with the HIV virus is “a
physical...impairment
that substantially limits one or more of [an individual’s] major
life activities.”
In the case, a woman infected with HIV but who had no serious symptoms,
went
to a dentist for a dental examination. She informed the dentist
of her HIV infection. The
dentist discovered a cavity and informed her of his policy against
filling cavities of
HIV-infected patients in his office. He offered to perform
the dental work at a hospital
at no extra charge, although she would have to pay for the use of
the hospital’s facilities.
She refused and brought suit against the dentist under that portion
of ADA which prohibits
discrimination against any individual on the basis of disability
in the employment of the
services of any place of public accommodation by any person who
operates such a place (a
doctor’s office is considered a “public accommodation’ for purposes
of the ADA):
No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation
by any person who...operates a place of public accommodation.
Important Rulings.
The U.S. Supreme Court, made several important rulings when reviewing
this case,
including:
1. From the moment of infection and throughout every stage
of the disease, HIV
infection constitutes a “physical impairment”
under the ADA;
2.The HIV virus’ impact on an infected woman’s reproductive
and child-bearing
activities “substantially limits” a “major
life activity" under the ADA.
3. Under the ADA, a public accommodation shall not be required
to
accommodate an individual where such an
individual poses a direct threat to
the health or safety of others. The
ADA states that:
Nothing in this subchapter shall require an entity to permit an
individual to participate in or benefit from the goods, services, facilities,
privileges, advantages and accommodations of such entity
where such individual poses a direct threat to the health or safety
of others.
Outcome of the Case.
In this case, the Supreme Court reasoned that the dentist
could have refused to treat his patient if the dentist could show that
in doing so her infectious condition would pose a direct treat to the health
and safety of others. The ADA defines a “direct threat” as
“ a significant risk to the health or safety of others that cannot
be eliminated by a modification of policies, practices, or procedures or
by the provision of auxiliary aids or services.” The dentist would
have to show, by sufficient, objective, medical evidence, that treating
his patient in a hospital setting would be safer or more efficient in prevent
HIV transmission than treatment in a well-equipped dental office. The Supreme
Court sent the case back to the lower court for more factual exploration
as to whether there was a significant issue of risk was present which would
warrant a trial.
Attorney Steven Bloom offers representation of persons who are discriminated against on account of a physical, mental or emotional disability. At Cushner & Bloom, P.C. we want our clients to understand the law behind their cases.
|
|
 DISCLAIMERS
|