In a major reversal of Administration policy, the Justice Department ruled Thursday that persons with AIDS and those infected but not yet ill are protected by the federal law barring discrimination against the handicapped in government jobs and federally funded programs.
The opinion, requested by the White House, responds to a key recommendation by the presidential AIDS commission that the department disavow its earlier controversial position that such persons are not covered by the law.
But the Justice Department action does not address the major commission recommendation that the law be extended to include the private sector.
‘Significant Step Forward’
Nevertheless, Adm. James D. Watkins, chairman of the AIDS commission, said that the opinion, issued by the department’s office of legal counsel, “makes a significant step forward in setting a tone for the nation. I think it’s a very positive step forward. The strategy is under way.”
Douglas W. Kmiec, assistant attorney general in charge of the office of legal counsel, cited a 1987 Supreme Court decision as the prime basis for concluding that persons with AIDS are covered by the federal rehabilitation act’s protection for the handicapped even though AIDS is a contagious disease.
Although the court ruling dealt with tuberculosis rather than AIDS, Kmiec said “it clearly held that ‘allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose’ ” of the federal law.
Kmiec cited “recent medical clarification from the surgeon general” as his major reason for concluding that so-called “asymptomatic” HIV virus-infected persons--those infected with AIDS but not yet ill--are also considered handicapped under the law and thus protected.
The opinion did leave the door open for federal employers or federally financed programs to exclude an HIV-infected individual “in individual circumstances.”
Such circumstances would include instances in which the individual poses a threat to the health or safety of others or in which he is unable to perform the job or satisfy the requirements of the program, Kmiec said.
But Kmiec noted that available medical information “says the risk of this infection being transmitted in the normal course in the workplace, or in any other program or activity, is very low in terms of the method by which transmission occurs.”
AIDS, or acquired immune deficiency syndrome, is caused by a virus known as the human immunodeficiency virus, or HIV, that destroys the body’s immune system, leaving it powerless against certain cancers and otherwise rare infections. It can also invade the central nervous system, causing severe neurological disorders. It is transmitted through anal and vaginal sexual intercourse, through the sharing of unsterilized hypodermic needles and by woman to fetus during pregnancy.
Atty. Gen. Dick Thornburgh, in a statement accompanying the department’s announcement, pointed out that much of existing law protecting handicapped persons was enacted before the advent of AIDS, which he said raises the question of whether present law “can adequately and appropriately serve” AIDS sufferers.
Kmiec said that the question of new legislation, urged by the AIDS commission, is presently under study.
Some of those working in the AIDS field questioned why the Justice Department took so long to formally scrap a legal policy that had been repudiated by the Supreme Court. And there were also questions about how vigorously the Justice Department would enforce the opinion.
“It took the Justice Department two years to catch up to the Supreme Court,” said Jeff Levi, executive director of the National Gay and Lesbian Task Force. “It is politically significant, but it is not of any legal significance.”
A spokesman for the department’s civil rights division refused to comment on whether lawyers in the division would be reassigned to enforce the new interpretation. Assistant Atty. Gen. William Bradford Reynolds was traveling and could not be reached to discuss the issue, and his subordinates were unwilling to talk about enforcement in his absence.
However, Loye Miller, Justice Department director of public affairs, said: “There should be no question whatsoever that this new interpretation of the law will be fully enforced . . . . Assistant Atty. Gen. Reynolds has assured Atty. Gen. Thornburgh that he fully accepts this decision. Even if this were not the case, it is Dick Thornburgh who runs the Department of Justice and there is not a shred of evidence in his entire career in the law and in the governor’s chair that he has ever had anything but a zealous desire to enforce the law, most particularly in areas of human rights and civil rights.”
Nan Hunter, who handles gay and lesbian legal issues for the American Civil Liberties Union, said that the opinion “will have some effect on the enforcement in the Department of Health and Human Services,” which shares responsibility with the Justice Department. “HHS has been paralyzed and unable to act on complaints of AIDS discrimination ever since the earlier memo,” she said.
“This does remove that barrier and is a welcome step, but one can only wonder why it took them 18 months to read the (Supreme Court) decision,” Hunter said.
Although he has not acted on some key recommendations of his AIDS commission, President Reagan did direct every federal agency to adopt an AIDS policy based on guidelines issued last March by the Office of Personnel Management. These guidelines did treat HIV-infected persons as handicapped, but they cover only federal agencies and did not have the force of Thursday’s legal opinion.
Surgeon General C. Everett Koop called for including “asymptomatic” HIV virus-infected persons under the law in a July 29 letter to Kmiec. He wrote that “from a purely scientific perspective, persons with HIV infection are clearly impaired. They are not comparable to an immune carrier of a contagious disease, such as Hepatitis B. Like a person in the early stages of cancer, they may appear outwardly healthy but are in fact seriously ill.”
“Regrettably, given the absence of any curative therapy for AIDS, a person with cancer currently has a much better chance of survival than an HIV-infected individual,” Koop wrote.
In this country, AIDS has primarily afflicted homosexual and bisexual men, intravenous drug users and their sexual partners. As of Monday, a total of 74,809 Americans had contracted AIDS, of whom 42,142 had died.