Federal contractors who fire people with AIDS based on fear of contagion cannot be challenged under U.S. civil rights laws protecting the handicapped, the Justice Department ruled in a controversial memorandum issued Monday.
The opinion by Assistant Atty. Gen. Charles J. Cooper, who heads the department's office of legal counsel, has widespread significance from legal and political standpoints. The department is responsible for coordinating federal enforcement of Section 504 of the Rehabilitation Act of 1973, which bars discrimination against handicapped people in programs conducted or financially assisted by the federal government.
The controversial ruling drew immediate criticism from an official of the Health and Human Services Department and angry reactions from civil and homosexual rights groups who contended that it reinforced the undocumented belief that AIDS can be spread through casual contact.
Cooper, terming the questions "difficult," concluded that Section 504 "prohibits discrimination based on the disabling effects that AIDS and related conditions may have on their victims."
At the same time, however, Cooper also ruled that "an individual's (real or perceived) ability to transmit the disease to others is not a handicap within the meaning of the statute and, therefore, that discrimination on this basis does not fall within Section 504."
Public Health Act
Cooper, whose job is often described as that of "the attorney general's lawyer," said he found it highly significant that, in passing the Rehabilitation Act, Congress "gave no indication that it intended to disturb the venerable body of federal and state law giving public health officials broad powers to prevent the spread of communicable diseases."
A Health and Human Services Department source who requested anonymity said high-ranking federal health officials were unhappy with the Justice Department ruling. "They believe that portions of the Justice Department opinion are contrary to the medical judgment on the transmissibility of AIDS," he said.
The Public Health Service has said repeatedly that AIDS is a blood-borne disease transmitted through intimate sexual contact or the sharing of unsterilized hypodermic needles. Moreover, it has said, there is no scientific or medical evidence that it can be spread through casual contact.
Based on such data, the federal Centers for Disease Control concluded last November that "the kind of non-sexual person-to-person contact that generally occurs among workers and clients or consumers in the workplace does not pose a risk for (AIDS) transmission."
Cooper, however, cited suggestions that "conclusions of this character are too sweeping." Noting that knowledge of the disease is growing and, in some respects, changing rapidly, he added: "The mechanisms of transmission are still not fully understood."
Cooper noted that his opinion is not binding on any state or local laws barring discrimination against AIDS sufferers on grounds of contagion. In Los Angeles, for example, David Schulman, deputy city attorney in charge of AIDS enforcement, said that, in adopting an ordinance protecting AIDS patients against discrimination, the City Council "made it clear to the community that discrimination in any form is still discrimination."
Dr. Neil Schram, chairman of the Los Angeles City/County AIDS Task Force, branded Cooper's ruling "outrageous."
"The Justice Department has made a political decision, rather than a medical one," Schram said. "Policy regarding this epidemic continues to be dominated by bigotry, ignorance and fear instead of medical science."
Cooper, for his part, told reporters at a briefing Monday that he had sought "to objectively survey the literature in the area," adding that "we are not qualified to pass judgment about who is right and who is wrong."
His ruling was made in the form of a 49-page memorandum to Ronald E. Robertson, HHS general counsel. That department's office of civil rights has received complaints from hospital and clinic workers alleging that employers discriminated against them because they had AIDS or AIDS-Related Complex, a milder form of the disease, or because they tested positive but showed no symptoms of the disease.
Cooper said employers could not escape challenge to a move against workers suffering from AIDS simply by feigning fear that it would spread in the workplace.