American Journal of Law & Medicine

No longer disabled: the legal impact of the new social construction of HIV.


The second social construction of HIV disease has begun.(1) In the first first years of the HIV epidemic, many viewed the disease "as the modern plague."(2) Now, as the epidemic matures and new "miracle treatments" are heralded,(3) the disease is beginning to conjure a very different set of images.(4) Where once AIDS was dreaded as the inexplicable cataclysm of the end of the millennium, now, as the virus appears amenable to treatment, we are beginning to see the disease as something both preventable and controllable, no longer beyond human direction. And, where the disease was once synonymous with death, disability, and decline, we now witness stories of miracle recoveries and long-term survival. In the minds of many, the disease has become the chronic disease; the dreaded plague has become but another social problem.

In most respects, the new social construction of HIV, emerging from the advent of potentially effective medical interventions, is a positive development. Certainly for individuals diagnosed as infected, the new treatments, coupled with the revised images of the disease, provide a cause for hope.(5) As a matter of public policy, however, the new social construction also has its dangers. Public health officials, for example, are concerned that the new images of HIV will lead to complacency about prevention.(6) There is also grave concern that in our desire to grasp the "magic bullet" of protease inhibitors, society is overstating the efficacy of these treatments.(7) In fact, the new medications are extremely cumbersome to take, can produce horrible side-effects and do not work for many individuals.(8) Moreover, no one knows how long these drugs will continue to work.(9) In addition, the astronomically high cost of these treatments puts them beyond the reach of many infected individuals, especially those in developing nations.(10)

The new social construction also raises significant challenges to the legal conception of HIV, and the ways in which the law has responded to the needs and interests of those who are affected. Thus far, the law's protection of individuals with HIV has been inextricably connected to the social construction of the disease as disabling and terminal.(11) As that view changes, the legal protections which have helped individuals with HIV to continue to work and access medical services may be undone. Ironically, the result may be that once we no longer think of HIV as invariably terminal, the actual ability of individuals infected to continue to work, go to school and afford the very medical treatments that have led to the altering social images may diminish. Already, in a series of recent court decisions, the consensus of legal reasoning that has served to protect the rights of the individuals who are infected with the virus has been challenged.(12)

This Article explores the impact of the new social construction of HIV on the rights of individuals who are infected. We begin by discussing the initial construction of the disease, and how that construction led to the consensus that individuals with HIV infection had disabilities and should be protected by the law under the rubric of disability rights. We then review the recent cases that have challenged that consensus. We show how these cases depart from both precedent and the once-widely held beliefs about HIV that animated the enactment of the 1990 Americans with Disabilities Act.(13) We discuss also how these cases implicitly reflect the new image of HIV, and how that new image threatens to erode further the judicial consensus that has operated to protect, at least partially, the rights of individuals with HIV. We conclude by highlighting the dangers of this development, and showing why the new social image of HIV may herald its own self-destruction.


The initial social construction of HIV as a plague began almost immediately after the disease's discovery. The first public report of the disease appeared in a June 1981 issue of the Center for Disease Control's Morbidity and Mortality Weekly Report which noted the mysterious appearance of a rare pneumonia--pneumocystis carinii--in five gay men in Los Angeles.(14) Shortly thereafter other reports of rare and fatal illnesses among gay men began to appear.(15) Soon the disease was known as "GRID, or Gay-related immune deficiency."(16) The less technical term, "gay plague," was also commonly used.(17)

Almost immediately, the public associated AIDS with both homosexuality and death. As Janet L. Doglin noted in 1985, AIDS was more generally "associated with the defiance of both normal family life and socially approved forms of sexuality."(18) Early discussions of other "high risk groups" that were said to include both Haitians and intravenous drug-abusers,(19) cemented the association between AIDS and socially stigmatized groups. The fact that the disease was sexually transmitted,(20) that science knew little about it and that medicine could do even less, further reinforced the image of the disease as one of plague, inflicted on social outcasts, perhaps due to their own deviant behavior.(21)

Concomitant with and compounding these images were the outrageous calls for "tough action"(22) and the frequent reports of individuals with HIV losing their jobs or being excluded from school.(23) By the mid-1980s, the possibility of discrimination against people infected with HIV appeared very real.

The case of Ryan White highlighted this danger, and presented to the world another view of AIDS. Ryan White was a schoolboy with both hemophilia and AIDS in Howard County, Indiana.(24) Because of the fear his condition engendered, he was denied the right to go to school.(25) The media quickly dramatized his story, presenting a new set of images, that was incorporated into the initial social construction of HIV. These were the images of ill and dying children,(26) "innocent victims"(27) who were the targets of unjust discrimination.

The concordance of these images, in conjunction with the reality of discrimination, cried out for a legal framework through which the epidemic could be analyzed and its social ramifications remedied. AIDS activists and those affected by the disease were not the only groups who saw the need for a legal vehicle to "protect the rights" of individuals with HIV. Public health experts saw the hysteria and discrimination integral to the disease's construction as a barrier to rational public health strategies.(28) In 1988, the President's Commission on the Human Immunodeficiency Virus recognized this barrier, concluding that discrimination against individuals with HIV would serve to deter individuals from being tested for and counseled about the disease.(29) Thus, the discrimination that accompanied the negative stereotypes surrounding the disease not only harmed the interests of individuals who were ill, but also threatened the health of the population as a whole.

Accordingly, by the mid-1980s, it appeared imperative to both legal commentators and public health officials that legal protection be provided to individuals who experienced discrimination because of their HIV status.(30) But how so? Although many individuals infected with HIV were also members of historically-discriminated against classes, the legal tools developed to prohibit such discrimination, such as they existed, could not be readily applied to the context of HIV.(31) Although people of color were disproportionately infected by the virus, doctrines policing race-based discrimination would not prohibit discrimination based on an individual's HIV status alone.(32) And, neither homosexuality, nor intravenous drug use, qualified as protected classifications in American discrimination law. Indeed, whatever hope many had then for judicial recognition of homosexuality as a "suspect classification," was at least temporarily extinguished by the U.S. Supreme Court's affirmation of a state law prohibiting sodomy in Bowers v. Hardwick.(33)

How then could the law prohibit discrimination against individuals with HIV? As early as 1985, Arthur Leonard explored that question in his seminal piece Employment Discrimination Against Persons with AIDS.(34) The answer, according to Leonard, lay in using the newly recognized concept of disability-discrimination,(35) in particular, [sections] 504 of the Rehabilitation Act of 1973(36) (which prohibited such discrimination by recipients of federal money) and the laws that existed in almost every state that prohibited employment discrimination against individuals with a handicap.(37)

Disability law proved an ideal candidate for a number of reasons. First, it was a relatively new field, hence one that remained pliable enough to accommodate a new issue.(38) Second, many of the images and metaphors encountered by other individuals with disabilities were similar to those associated with the first social construction of HIV. Indeed, individuals with other disabilities--like those infected with HIV--have often faced the same seemingly contradictory set of messages. They are seen as social outcasts, deviants and dangers to society.(39) Yet, at the same time, they are also depicted as weak, dependent, sometimes innocent and often in need of protection.(40) Like HIV, disability reminds us of our corporeal limitations, our inability to control our fate, and ultimately, our mortality.(41) Thus, in many ways, the images confronting individuals with disabilities and the treatment that they have received, parallel the experiences of individuals with HIV. Unfortunately, as the images associated with HIV have changed, the applicability of disability law, and its ability to prohibit the most egregious discrimination against individuals infected with HIV, has become increasingly problematic.



The font of anti-discrimination law for individuals with disabilities is section 504 Of the Rehabilitation Act of 1973.(42) That law prohibits discrimination against a "qualified individual with a disability" by recipients of federal financial assistance.(43) The statute defines an individual with a disability as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."(44)

Arthur Leonard seized upon this defintion(45) when he explored the use of the Rehabilitation Act in protecting individuals with AIDS/HIV from employment discrimination. Leonard made two doctrinal arguments in support of his position. First, relying on both the then-current scientific definition of AIDS as well as the contemporary construction of the disease; he argued that persons with AIDS are handicapped as a matter of law because the "ability to fight infection and preserve health is logically a major life function."(46) Hence their infection constitutes a physical impairment that substantially limits the major life activity of infection fighting.(47)

Second, he argued that individuals suffering from discrimination because others perceived them as posing a risk of infection should be covered as individuals "with a record of disability or [as individuals] who are regarded as having a disability."(48) According to Leonard, the rationale for disability law is that "[p]ersons whose physical abilities are impaired should not be deprived of work which they are capable of performing."(49) That principle, he suggested, should protect not only individuals with AIDS, but even those who were infected but asymptomatic "because the motivation of the employer is the same unlawful motivation as that expressly condemned by the statute: animus against a class of individuals which unfairly ignores their individual qualifications and is based on prejudicial beliefs about the class."(50) Hence, Leonard suggested coverage for individuals who were asymptomatic and not actually substantially impaired, under section 504's "regarded as" prong, on the theory that irrational fears and animosity toward individuals with a physical condition could cause the limitation of a major life activity.(51) Thus the very social construction of AIDS that fostered fear and loathing of individuals with the infection could serve to support the argument that such individuals were disabled because they were regarded as disabled.

Although Leonard's argument was masterful, it was not airtight. Three major problems warrant consideration. First, even if one accepted Leonard's contention that individuals who were infected with HIV were individuals with a disability, it did not necessarily follow that all adverse action taken against them constituted discrimination on the basis of disability. Instead, as the Reagan Administration later argued in an amicus brief to the U.S. Supreme Court, the decision to discharge an employee because of fear of contagion might not be considered discrimination by reason of a handicap.(52)

The second difficulty with Leonard's argument pertained to his suggestion that individuals could be disabled precisely due to the fear and stigma with which they were treated.(53) This argument was particularly crucial for individuals who were asymptomatic and could not point to their physical condition as causing a substantial limitation of any of their major life activities. Rather, whatever limitations asymptomatic individuals experienced were more directly due to the discriminatory treatment with which their physical condition was met.(54) While Leonard was certainly correct that disability law was initially enacted in part because individuals with disabilities were often subjected to "irrational fears and prejudice on the part of employers or fellow workers,"(55) his argument glossed over the fact that the statute's explicit language stated that an individual without an impairment or a record of such impairment only would be considered disabled if that individual was "regarded as" having "such impairment."(56) Hence, the specific statutory language seemed to require that the individual be regarded as having an impairment that actually substantially limited a major life activity. The fact that the individual was regarded with dislike or prejudice alone might not satisfy the statutory requirement.

Finally, Leonard failed to address the regulatory definition of a major life activity. Leonard assumed that health and immunological functions constituted major life activities.(57) Although this certainly is logical, neither health nor immunological function appeared in the regulations as major life activities. Rather, the model regulations for section 504 listed only "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working," as examples of major life activities.(58)

Some of these uncertainties with Leonard's analysis were highlighted by the Department of Justice's (DOJ) Office of Legal Counsel in a 1986 memorandum written by Charles J. Cooper.(59) The Cooper memorandum, which shocked legal advocates for HIV-infected individuals,(60) argued that although the Rehabilitation Act would protect AIDS victims, it would not apply to those who were asymptomatic, because they lacked either a physical impairment or a physical impairment that substantially limited a major life activity.(61) Cooper stated:

To be sure, a carrier of a contagious disease may suffer adverse social

and professional consequences. Persons susceptible to the disease

may be reluctant to associate with him, but a person cannot be regarded

as handicapped simply because others shun his company. Otherwise, a

host of personal traits--from ill temper to poor personal hygiene--would

constitute handicaps, a conclusion which the drafters of the

regulations recognized to be untenable.(62)

In short, precisely because they were asymptomatic, individuals who were HIV-positive but did not have AIDS could not show that they met the statutory definition of disability. Cooper, therefore, recognized the social construction of AIDS as plague, but he believed that this social construct did not trigger statutory protection.


Serendipitously, while commentators disputed the DOJ's conclusion regarding the Rehabilitation Act's application to those who were HIV-positive, the U.S. Supreme Court granted certiorari in a case concerning the applicability of the Act to a teacher with tuberculosis. In School Board of Nassau County v. Arline, the Court first settled a lurking question: could a contagious disease ever be considered a handicap?(63) According to Justice Brennan, who wrote for the Court, the school board had conceded that an infectious disease could possibly fall within the parameters of section 504.(64) But to qualify as a handicap, the plaintiff had to be able to show that she met the requirements of the statutory definition. The Court found that she could qualify because her "impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment."(65)

Turning to whether discrimination against Ms. Arline on the basis of her contagiousness constituted discrimination on the basis of her handicap, Justice Brennan concluded, "[i]t would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment."(66) Instead, Justice Brennan decided that issue should be analyzed only after a finding of disability was reached, as part of an inquiry as to whether the plaintiff was "otherwise qualified" for the position at issue.(67)

Although the Court found that Ms. Arline had a physical impairment that actually caused a substantial limitation of a major life activity (due to her hospitalizations), Justice Brennan's dicta suggested ways to construe the "regarded as" prong of the definition of disability. No doubt he was thinking of HIV when he stated,(68) "society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment."(69) Thus, in essence, Justice Brennan, albeit in dicta, gave support for Leonard's contention that the discriminator's actions and beliefs toward the individual create the substantial limitation of the major life activity of working. As a result, as long as society percieved HIV as a stigmatizing plague, and those with the infection were subjected to widespread social ostracism, they could readily claim a substantial limitation of the major life activity of working.

Immediately after Arline those who had questioned the application of section 504 to asymptomatic HIV-positive individuals began to rethink their position. In 1988, the DOJ's Office of Legal Counsel revisited the issue and altered its conclusion with regard to those who were asymptomatic.(70) More important, however, although the Department accepted the idea that asymptomatic HIV-positive individuals had a disability, it did not adopt Justice Brennan's analysis. Instead, the Department focused on the physiological impact of HIV infection to show that even those who were asymptomatic were handicapped.(71) According to the Department, there was no doubt that infection itself was a physical impairment.(72) This was substantiated by the fact that "[t]he overwhelming majority of infected persons exhibit detectable abnormalities of the immune system.... [F]rom a purely scientific perspective, persons with HIV infection are clearly impaired."(73)

According to the Department, the harder question was whether that impairment in an asymptomatic individual substantially limited a major life activity.(74) Although it noted Justice Brennan's analysis that acts of discrimination themselves demonstrate a substantial limitation of a major life activity, the Department focused on the limiting effect that HIV has on individuals' ability to have biological children and engage in intimate relations.(75) The Department stated that the regulations did not specifically cite either sexual activity or reproduction as major life activities, "[h]owever, since the regulatory list was not intended as an exhaustive one, we believe at least some courts would find a number of other equally important matters to be directly affected."(76)


Although one might have expected courts to follow the DOJ's approach by closely scrutinizing whether HIV infection substantially limited one or more of an individual's major life activities, this was not the case. Instead, courts focused on the weighty interests of the general public--who relied on the courts for protection from the dreaded onslaught--and infected individuals--who, in the early cases, were generally schoolchildren perceived of as undeserving of such a terrible affliction, and therefore worthy of protection against discrimination. …

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