Job bias and infectious illness

The United States Supreme Court struck an important legal chord Tuesday for the rights of the handicapped in the workplace. This decision would also appear to be a victory for victims of AIDS (acquired immune deficiency syndrome), although the justices seemed to waffle on this issue.

By a 7 to 2 vote - with Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia dissenting - the court upheld, and seemed to extend, a 1973 federal law barring discrimination against the handicapped.

The majority ruled that federal aid recipients, including public-school administrators and government contractors, may not discriminate against those with contagious diseases if those people are ``otherwise qualified'' to work.

Associate Justice William J. Brennan, writing for the majority, rejected the position of the Reagan administration that the 1973 statute allowed employers to fire workers on the assumption that they might spread a disease.

``It 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,'' Justice Brennan wrote.

He added that allowing discrimination based on a disease's contagious effects ``would be inconsistent with the basic purpose'' of the federal anti-bias law, ``which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or ignorance of others.''

The majority opinion noted that the court was not deciding ``whether a carrier of a contagious disease such as AIDS could be considered, solely on the basis of contagiousness, a handicapped person as defined by the [law].''

The case involved a Florida elementary-school teacher who was fired by the school board because she was diagnosed as having tuberculosis, considered an infectious disease. Yesterday's ruling sends the case back to federal trial court to determine whether she is ``otherwise qualified'' to teach.

In oral arguments, the US solicitor general - in support of the school board's action - had allowed that the schoolteacher was ``handicapped'' but insisted that she was not discriminated against because of her handicap, but was fired because of her alleged contagiousness.

An earlier Justice Department memorandum suggested that employers do not violate federal law by firing workers out of fear, even an unfounded one, that they may spread a disease.

The American Medical Association also supported the teacher's dismissal. However, it took the position that there must be a reasonable medical judgment about the risk of contagion before a firing can be considered nondiscriminatory.

This ruling comes amid continuing nationwide controversy over job protection for victims of AIDS.

In February, California's Fair Employment and Housing Commission ruled unanimously that state laws that protect the physically handicapped against job discrimination apply to those with AIDS. That decision flies in the face of the Justice Department memorandum. And so-called gay rights groups say they hope it will encourage other states to make similar rulings.

Test cases are surfacing across the US. A doctor at a Chicago hospital, for instance, was recently suspended when he was diagnosed as having AIDS. A peer review of the implications of this situation is under way.

Meanwhile, the debate over handicaps (especially AIDS) and the law is also being carried forward in academic and professional settings. Last week, at a conference sponsored by the national Centers for Disease Control, William Curran, a Harvard professor of legal medicine, called on federal and state officials to ``make it illegal to discriminate against those who test positive for AIDS in employment, housing, and public accommodations.''

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