How Much Credence to Give to Fear Itself?

Michael Moore is the Robert Kingsley Professor of Law at USC

The Justice Department's ruling that allows the firing of AIDS victims because of feared transmissibility of the disease, ordinances such as the one in Los Angeles that prohibit discrimination against AIDS victims, and the qualification of the LaRouche initiative for the November ballot all raise a common issue of public policy: What legal restrictions, if any, should be placed on employers' freedom to fire or otherwise restrict those of their employees who either have AIDS or have tested positive for AIDS antibodies?

One thing should be clear from the start: No employer should be allowed to fire AIDS victims if his doing so is motivated by his dislike of gays. Despite the lack of protection under current federal law, employment discrimination on the basis of sexual orientation has no place in our society. We should accordingly forbid such discrimination when it is done under the pretext of AIDS, as well as when it is done more openly.

Where covert discrimination against gays is not an issue, the public-policy question becomes more difficult. Because AIDS is so lethal, and because so little is yet known about it, there is a widespread fear that anyone who has been infected with the AIDS virus might communicate it by his or her presence. Such public fear exists in the face of mounting evidence strongly suggesting that AIDS cannot be transmitted by the kind of casual contact that most jobs involve.

It might be thought that employers should be able to fire AIDS victims from jobs involving such casual contact whenever other employees or customers fear contagion, even though these fears may not be based on any evidence. Sometimes we respect such unfounded fears in the shaping of our laws.

Airplanes, to take one example, crash for a variety of reasons, among them inadequate maintenance, inadequate numbers or training of air-traffic controllers, and terrorist activities. Suppose that terrorism is the least likely cause of crashes per passenger mile but the public fears it more than other causes. We might allow airlines and the Federal Aviation Administration to lay off some maintenance personnel or air-traffic controllers and spread the savings around for use in installing terrorist-prevention measures. Such an allocation of safety dollars gives us something of some value--the allaying of public fear about airline travel--even though it does not actually increase the safety of airline travel. Economists would recognize such deferring to public fears as "consumer sovereignty" over the kinds of risks to which people are willing to expose themselves.

But there are other occasions on which we will give no weight to unfounded fears, no matter how widespread. Suppose public swimming pools fire their black employees because of an unsupported fear that blacks will care too little about pool safety. If such a fear is caused by prejudice against blacks, then no matter how widespread and sincere such a fear might be among pool users, it should receive no consideration in employment decisions.

Standing somewhat between these two cases is the public's present fear that AIDS is transmissible by casual contact. When such fear is neither a conscious pretext for discrimination against gays nor an effect of some prejudicial attitudes against gays, then it is not the kind of prejudice-tainted fear that should be always excluded in our allocation of employment opportunities. Yet an unfounded fear that AIDS is easily transmissible is unlike the airline example in that such fear is focused on a particular class of employees--AIDS victims--and attributes to them an undesirable characteristic.

Such a focus has three pertinent consequences:

--It means that the harm that must be caused to allay unfounded public fears will be borne wholly by one set of individuals, whereas in the airline example and cases of economic regulation like it, the public "pays" for part of the cost of allaying its fears by increased ticket prices or decreased airline safety.

--It means that the individuals fired are insulted as persons in a way that would insult us all if we lost our jobs because of some undesirable characteristic that we were supposed to possess but didn't. Such an insult is given particularly when there is evidence to be had on the issue but the employer (or his customers) will not listen to it.

--Such focused fear about a determinate class of persons may well transform itself from being an isolated belief into being the cluster of irrational attitudes that we think of as prejudice. Not prejudice against gays, but prejudice against AIDS victims as such. Such prejudice could make AIDS victims the "new lepers" in our society, much as such fear once made polio victims our "untouchables."

For each of these reasons, the public's fear in the transmissibility of AIDS has no place in employment decisions about AIDS victims. Only when certain job tasks can be shown to involve an actual risk of transmission of AIDS should firing or other restrictions be sanctioned by law. The question of when such risk is sufficiently founded on medical evidence and high enough to justify causing the loss of employment is necessarily a matter of degree. In each case we must balance the certain harm to AIDS victims from employment loss against the uncertain but deadly harm resulting from the spread of AIDS. However the line is drawn, surely some evidence of some not-negligible degree of risk is required before we further disadvantage a group that is already extremely disadvantaged by the arbitrary whims of nature's lottery.

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