HIV/AIDS and Your Rights: A Fact Sheet
September 2011 | SAGE
People living with HIV/AIDS are entitled to certain protections under federal law. Learn more about your rights.
People living with HIV/AIDS (PLWHA) are protected against discrimination under the Americans with Disabilities Act (ADA), a federal act that guarantees equal opportunities in employment, housing, public accommodations, telecommunications, and transportation. Even in states without specific HIV/AIDS anti-discrimination laws, PLWHA are still covered by the ADA, which applies to all local and state governments, departments, and agencies.
In addition to the protections guaranteed under the Americans with Disabilities Act, PLWHA are also guaranteed protections from housing discrimination under the federal Fair Housing Act (FHA). In fact, the Department of Housing and Urban Development (HUD) explicitly lists HIV as a condition that is safeguarded under the FHA regulations.
Despite the parameters outlined in ADA and FHA, many people with HIV/AIDS are unaware of their broad protections, and many landlords, employers, and public accommodation managers are equally unaware of their legal obligations. This article offers some basic guidelines for PLWHA on their rights under ADA and FHA.
1. Who is considered to have a disability under the Americans with Disabilities Act? A person 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 or bodily systems. A person may also be considered disabled if he or she has a history of such an impairment. This definition greatly differs from how public and private disability service programs define disability, which focus more on whether one’s disability qualifies them for disability benefits.
2. Why is having HIV/AIDS considered a disability? The most common answer is that having HIV/AIDS is a physical impairment that substantially limits the immune system’s ability to function and hinders an individual’s major life activities, including but not limited to: standing, walking, thinking, concentrating and interacting with others. While understanding these legal definitions and how people with HIV/AIDS are protected under the ADA is important, they do not encompass or portray a universal experience of living with HIV/AIDS, as many people with HIV/AIDS live long and independent lives and have little to no difficulty with their daily and long-term living needs.
3. If I am HIV-negative but was discriminated against because I was thought to be HIV-positive, am I protected under the ADA? Yes. The ADA protects people who are perceived to have HIV/AIDS as well as individuals who are discriminated against because they associate or have a relationship with someone who has HIV/AIDS.
Facts on ADA and Employment
1. People with HIV/AIDS cannot be discriminated against when seeking or securing employment, as long as they are qualified and able to perform the "essential functions" of the job. Under the Americans with Disabilities Act, private employers with 15 or more employees and all public employers—regardless of workforce size—cannot discriminate when administering or distributing job applications or interviewing qualified candidates, or discriminate against current employees when giving/setting wages, raises, promotions, health benefits and all-other employment related activities.
2. Employers cannot ask about your HIV/AIDS status before making you a job offer. Employees are protected against specific questions about their HIV/AIDS status but can be asked to pass a medical examination if it is required of all employees in similar job roles.
3. Prospective and current employees with HIV/AIDS can request reasonable accommodations to help them perform the essential functions of their job. Under the ADA, reasonable accommodations can be requested as long as it will not "impose an undue hardship" on the business’ operation. An employer is legally obligated to provide a reasonable accommodation for a known disability. If an employee wishes to keep his or her HIV/AIDS status confidential, the employee may state that he or she has a disability covered under the ADA. However, the employer can require medical records that substantiate the disability.
Examples of reasonable accommodations in the workplace may include:
- Modifying the job application process to enable all to participate
- Modifying work hours to accommodate doctors’ appointments or rest periods
- Providing an employee with the tools to work from home (modem, fax, computer, etc.)
4. People with HIV/AIDS are protected against other employees’ potential prejudices or fears. Under ADA, another employee’s bias, fear or prejudices does not constitute an undue hardship to the employer. In addition, the potential loss of revenue, customers or employees because of another employee’s prejudice does not constitute an undue hardship.
5. Employers are required to keep their employees’ medical records and HIV/AIDS status confidential. All employees’ medical information and records must be stored separately from general employees’ personnel files.
Facts on ADA and Public Accommodations
1. People with HIV/AIDS must be given equal opportunities and access to use or enjoy a public accommodation’s services or goods. Under the ADA, people with HIV/AIDS are protected against discrimination when accessing or purchasing entrance into public accommodations. The accommodations must also be prepared to make reasonable changes to their policies, products or services in order to ensure equal access and opportunity. Examples of public accommodations include:
- Movie theatres
- Doctor and dentist offices
- Retail stores
- Museums and libraries
- Day care centers
2. Public accommodations cannot charge "service fees" or additional costs to accommodate people with disabilities and/or HIV/AIDS.
3. Doctors, dentists, and other medical professionals cannot refuse to provide care to patients because they have HIV/AIDS. Medical professionals must provide care to all people with HIV/AIDS seeking treatment, unless the specific ailment or illness is outside of the professional’s area of knowledge or expertise. In this case, the doctor must provide a referral to someone who can provide treatment.
4. People living with HIV are now able to apply for permanent legal residence or green cards. On January 4, 2010, the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention removed HIV from the list of communicable diseases that barred entry into the United States. For more information on HIV and immigration, visit www.uscis.gov.
Facts on FHA and Your Housing Rights
1. Under the Fair Housing Act (FHA), PLWHA cannot be denied the rental, sale or lease of most apartments and houses because of their HIV/AIDS status or any other disability. The only exceptions are owner-occupied buildings with four or fewer units, and the sale of a single-family home without real estate agents.
2. People living with HIV/AIDS cannot be refused or denied entry into housing programs that receive federal financial assistance, or any state or local government housing, such as residential treatment programs or supportive housing.
3. PLWHA are protected from intrusive questions that may violate their privacy rights. Illegal questions include:
- Asking if you have a disability, HIV or AIDS, or receive disability benefits
- Inquiring about the "nature or severity" of a disability
- Eviction because of perceived or actual disability
- Asking if you are able to live "independently," or to see medical records
4. People living with HIV/AIDS may be eligible for reasonable accommodations, or changes/modifications to their unit/housing policies as long as the landlord will not incur undue financial or administrative costs. Examples of reasonable accommodations or modifications to policies can include:
- A request for a change in visitor policy to bring a caregiver or aide into the home
- A request for a change in pet-policy to allow for a support animal in the home
5. HIV-positive older adults may be eligible for assistance under the Housing Opportunities for People with HIV/AIDS (HOPWA). Under the U.S. Department of Housing and Urban Development (HUD), individuals with HIV/AIDS and their families are eligible for HOPWA housing assistance if they are low income (below 80% of the area’s median income) and the applicant has a documented HIV/AIDS status. HOPWA defines family as "individuals [who] are found to be important to that person’s care and well-being," which can include family of choice. HOPWA funds can be used for a number of housing-related needs, including housing search assistance, short-term rent, mortgage and utility (STRMU) assistance, rent subsidies or case-management needs.
6. While the FHA does not explicitly state protections for transgender individuals living with HIV/AIDS, 12 states—including the District of Columbia—as well as more than 100 cities have specific laws prohibiting housing discrimination based on gender-identity and expression.
Key Sources and Additional Information:
"Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS." U.S. Department of Justice, Civil Rights Division. http://www.ada.gov/pubs/hivqanda.txt.
"Executive Summary: Compliance Manual Section 902, Definition of the Term ,Disability.’" The U.S. Equal Employment Opportunity Commission. March 2009. http://www.eeoc.gov/policy/docs/902sum.html.
"Housing Rights of People Living with HIV/AIDS: A Primer." The Center for HIV Law and Policy. March 2010. http://www.hivlawandpolicy.org/resources/view/248
"Discrimination & HIV/AIDS: A Factsheet for Practitioners." National Association of Social Workers. http://www.naswdc.org/diversity/lgb/hiv_discrimination.asp.
"Social Security for People Living with HIV/AIDS." U.S. Social Security Administration. February 2005. http://ssa.gov/pubs/10019.html.
"A Guide to Disability Rights Laws." The U.S. Department of Justice. September 2005. http://www.ada.gov/cguide.htm.