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An Invitation to Senseless AIDS Bias : Ruling Would Give Free Reign to Employers’ Unfounded Fears

<i> Michael Moore is the Robert Kingsley Professor of Law at USC</i>

Assistant Atty. Gen. Charles Cooper, in a memorandum issued by the Justice Department, has ruled that federally assisted hospitals or clinics can fire AIDS victims (or non-victims who test positive for AIDS antibodies) without running afoul of federal laws prohibiting discrimination against any “handicapped individual.”

According to Cooper, as long as the AIDS victim is fired because his or her employer fears transmission of the disease to others, then the employee has no complaint, no matter how unfounded the employer’s fear.

Cooper’s ruling is an extremely ill-timed, badly reasoned and badly motivated bit of political decision-making that ought to be ignored by the Department of Health and Human Services (to whom the advice was given) and by the courts when they address this issue in the inevitable litigation that will follow. It should also be ignored when California voters face a like issue this coming November when they pass on an equally ill-reasoned and badly motivated proposal, the initiative sponsored by followers of Lyndon LaRouche that would restrict employment and educational opportunities for AIDS victims.

Cooper claims that his conclusions were “compelled” by the narrowness of the language of the federal statute that prohibits discrimination only against “handicapped individuals.” Yet the definition of the phrase, “handicapped individuals,” was explicitly broadened by Congress in 1974, over President Richard M. Nixon’s veto, to include anyone who is or has been substantially impaired “in one or more of such person’s major life activities,” or is regarded as having such an impairment by others.

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Recognizing that having AIDS is such an impairment and thus a handicap, Cooper nonetheless ruled that the transmissibility of AIDS, be it real or perceived, is not such a handicap. Thus the employer who fires an AIDS victim because he believes that the employee might transmit AIDS, not because he believes that the employee has AIDS, is exempt from the anti-discrimination ban of the federal statute.

This has the curious result of meaning that an employer who fears transmissibility can fire an employee without any evidence on which to base his belief that AIDS can be transmitted by casual contact.

Had Cooper ruled that AIDS and its transmissibility are together one, indivisible handicap, the result would not have been that an employer would be prevented from firing his employees who are AIDS victims. On the contrary, only handicapped workers who are “otherwise qualified” for their jobs can use federal law to bar employers from firing them, and to have a communicable disease is not to be qualified for most jobs.

Under such an alternative ruling, however, an employer would have to possess some evidence supporting his fear that AIDS could be transmitted by the kind of contact the employee’s job involves. Surely, the serious harm resulting from loss of employment should be suffered by those already suffering with AIDS only if there is evidence suggesting at least some degree of risk of transmission. Such evidence should be directly relevant to the tasks that each job involves, which is clearly preferable to Cooper’s blunderbuss approach.

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In addition to allowing employers to fire AIDS victims wholesale with no evidence of transmissibility, Cooper’s ruling has troublesome implications. By Cooper’s reasoning, we presumably should distinguish an employer’s dislike of wheelchair-bound persons from, let’s say, an employer’s belief that wheelchair-bound persons bring bad luck. Armed with this distinction, we should then say that an employer can fire a handicapped employee not because of the handicap, but because the employer believes that the employee is unlucky. Unluckiness is not a handicap any more than is transmissibility of disease, even though each is a characteristic associated by some with handicapped persons.

Indeed, why stop here? Why not say that under other anti-discrimination statutes we should distinguish employers’ dislike of blacks, Jews or women from employers’ beliefs that blacks are lazy, that Jews are grasping, or that women are stupid. If we make this distinction, then blacks, Jews or women could be discriminated against with impunity so long as the grounds for such treatment were not that such persons were black, Jewish or female but only that they were lazy, grasping or stupid.

Cooper has sought to forestall some of such absurd implications. In a footnote to his memo he distinguishes employer beliefs based on stereotypes about blacks, Jews, women or the handicapped from beliefs not so based. Yet if AIDS is a handicap, as Cooper concedes, why is not the totally unfounded belief in its transmissibility by casual contact part of the stereotypical beliefs about AIDS victims? Witness LaRouche, whose prejudice against AIDS victims is essentially manifested by his beliefs in the easy transmissibility of AIDS.

Cooper’s claim that his conclusion is “compelled” by the “plain language” of the Rehabilitation Act is hard to credit as anything but a pretext for a political decision that’s hard to justify if openly made. It is particularly difficult to believe, coming as it does from the same individual who so recently defended before the Supreme Court a notion of “handicap” so expansive as to include Baby Doe treatment cases.

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Such “compulsion” is also hard to credit in light of the opposite “compulsion” felt by those in the Civil Rights Division of the Justice Department who drafted a ruling reaching a conclusion contrary to Cooper’s--a draft that three weeks ago was apparently overruled by Reagan Administration appointees in the department.

When issuing rulings about the permissible and impermissible motivations of employers firing AIDS victims, those heading the Justice Department should ask some motivational questions of themselves: Is their licensing of discriminatory firing of AIDS victims motivated by some legitimate concern such as public health or the unfortunate “compulsion” of too-narrow statutory language? Or is this ruling, like the LaRouche initiative in California, motivated by conservatives’ dislike for gays and their activities, for which the AIDS scare is a convenient pretext?

If the latter is the case, then this discriminatory ruling, like the discriminatory firings that it would permit, should be even more forcefully disavowed when the issue is decided in the courts.


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