HIVers cheered when the U.S. Supreme Court popped its HIV cherry with its first AIDS-specific decision four years ago. The landmark ruling, which backed an asymptomatic woman who was booted from a dentist's chair, gave hope that all HIVers -- healthy or not -- could find shelter under the Americans with Disabilities Act (ADA).
Such hope is fast fading as a series of ADA rulings chipped away protections. Soon you may have to wait until you have symptoms to be safe from HIV bias, said New York Law School professor Arthur Leonard. "The Court is slowly but surely reading some people -- those who are doing well on meds -- out of the ADA."
Last spring, the Court declined to hear the case of Spencer Waddell, an HIV positive dental hygienist who was fired from his job. He sued in 1999 under the ADA, but the case was dismissed last year . He appealed and lost again in December. In May, lawyers for Waddell implored the Court to use the case to highlight that an employer "must have objective medical evidence" when claiming an employee may pose a health risk to customers. No deal.
Another decision, Williams v. Toyota, was brought by an assembly-line worker with carpal-tunnel syndrome who was denied a job transfer and fired. The 9-0 ruling, issued in January, held that a disability must be severe enough to limit not only your 9-to-5 job but your daily life. In other words, she couldn't do her job (or pay her bills), but she could still brush her teeth. Under that reading, someone newly diagnosed with HIV might not be deemed disabled and could be fired for "health" reasons without recourse.
Less disturbing, the April Barnett v. US Airways decision held that a seniority system always trumps disability in deciding job transfers. The ruling means that an employer could use the system "as an excuse not to accommodate a worker with HIV," said Catherine Hanssens, head of Lambda Legal Defense and Education Fund's AIDS Project.
But the Supremes' latest performance might be the worst. This case, Echazabal v. Chevron, involves a man with hepatitis C who was denied a job that he otherwise qualified for at Chevron for "protective" reasons. In June, the Court endorsed the job rob, saying that an employer could refuse to hire someone if the worker's health might be endangered by the job. A doctor with HIV, for example, could be denied a job in a hospital because it had a TB ward that endangered his health.
"That's horrific," said James Esseks, a lawyer with the ACLU's AIDS Project. "People should be able to decide for themselves, but this decision hands a big card to the employers."