Antidiscrimination Protection under Disability Laws


The Issue. Legal and Policy Considerations. Practice Examples. References.


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The Issue

Disability laws often define disability to include most serious medical conditions ranging from communicable diseases (TB, hepatitis, or syphilis) to chronic illnesses (like cerebral palsy, diabetes, or schizophrenia) that may result in a physical or mental impairment that substantially limits activity. In the United States and other countries disability has been defined or interpreted to include HIV-positive status, even when the infected person is asymptomatic.

Legal and Policy Considerations

Disability laws provide another framework within which PLHIV may receive legal protections against discrimination. Disability laws and HIV-specific laws differ from general discrimination laws in focus and form. In the realm of disability law, the focus is on providing opportunities and perhaps even affirmative services to persons with disabilities. Disability legislation commonly incorporates protections against discrimination based on disability into the legal framework to enhance the rights and social acceptance of persons with disabilities. Similarly, laws and policies enacted that are specific to HIV and AIDS often contain antidiscrimination provisions that bolster the public health and privacy initiatives found elsewhere in legislation or policy. By contrast, antidiscrimination laws tend to focus almost exclusively on protections against discrimination and categorize protected classes based upon factors such as race, gender, religion, or indeed, health status and disability (see Topic 2.1). PLHIV may benefit from legal protections against discrimination arising from both types of laws, and a number of countries have implemented both approaches simultaneously.

Some jurisdictions that have enacted disability laws-such as the United States, United Kingdom, and Hong Kong (China)-have based the applicability of discrimination protections on proof that the disability affects a person's ability to perform life functions, including work, education, and reproduction. Many countries have explicitly defined HIV as a disability under the law, or alternatively, courts have interpreted disability to include HIV and AIDS. Since discrimination is largely based on perception, many disability laws apply to persons perceived to have a disability as well as those whose functioning is actually affected by the disability. In some countries...

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