all other subject to arbitrary employment practices. For example, New Hampshire excludes handicaps caused by illness and Arizona excludes handicaps that were first manifested after age 18. Many statutes require a presently disabling condition despite the fact the employers often use signs of a future disabling condition to disqualify an employee. It is estimated that between 150,000 and 1.2 million pre-employment lower back x-rays are given each year. Despite the fact that they have been

totally discredited in the scientific literature, they are still widely used to screen out asymptomatic applicants." Hawaii

actually limits coverage to impairments which will last a lifetime without substantial improvement. Hence, a person with cancer may be excluded just because he may get better.

Over one-half of the states do impose a reasonable accommodation requirement. However, several define the term restrictively. In Minnesota, a $50 cap is provided. Many restrict the requirement to employers of over a certain number. This makes no sense, when the accommodation may involve simple readjustments of work space (lowering a desk). With the undue burden protection of federal law, there is no reason to exempt employers or limit the type of accommodation which can be made. Finally, nearly one-half of the states do not require any reasonable accommodation despite extensive documentation that

35Id. at 288.

accommodations are most often not costly.

36

Yet for many

disabled people the willingness to accommodate can make the difference between fruitful employment and welfare.

Now is the time for Congress to make a national commitment

to the equal employment opportunities of persons with

disabilities.

The federal law is too limited in coverage and state laws vary widely and are often too restrictive. The result is the sanctioning of widespread proven employer bias and the exclusion of millions of Americans from jobs that they can perform and deserve to hold.

36Dupont study, supra, Wall Street Journal, Nov. 22, 1983, at 1 col. 4.

Re:

Memorandum for Arthur B. Cuivahouse, Jr.
Counsel to the President

Application of Section 504 of the

Rehabilitation Act to HIV-Infected Individuals

Introduction and Summarv

This memorandum responds to your request for an opinion on the application of section 504 of the Rehabilitation Act of 1973 (Act), 29 U.S.C. 794, to individuals who are infected with the Human Immunodeficiency Virus ("HIV" or "AIDS virus"). You specifically asked us to consider this subject in light of School Board of Nassau County v. Arline, 107 S. Ct. 1:23 (1987) (Arling). Congress has also sought to clarify the law in this area by amending the Rehabilitation Act to address directly the situation of contagious diseases and infections in the employment context. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, sec. 9, 102 Stat. 28, 31 (1988) (Civil Rights Restoration Act). Although your opinion req. st was limited to the application of section 504 in the employment context, we have also considered the non-employment context because the President has directed the Department of Justice to review all existing federal anti-discrimination law applicable in the HIV infection context and to make recommendations with respect to possible new legislation.1 See Memorandum for the Attorney General from President Ronald Reagan (Aug. 5, 1988).

For the reasons stated below, we have concluded, with respect to the non-employment context, that section 504 protects symptomatic and asymptomatic HIV-infected individuals2 against

1 We defer to others in the Department to make the policy determinations necessary to recommend legislation, and, in keeping with the tradition of this office, confine our analysis to matters of legal interpretation.

2 In this opinion, individuals who are infected with the AIDS virus and have developed the clinical symptoms known as Acquired Immune Deficiency Syndrome ("AIDS") or AIDS-Related Complex ("ARC") will sometimes be referred to as "symptomatic HIV-infected individuals." Individuals who are infected with the (continued...)

discrimination in any covered program or activity on the basis of an actual, past or perceived effect of HIV infection that substantially limits any major life activity--so long as the HIV-infected individual is "otherwise qualified" to participate in the program or activity, as determined under the "otherwise qualified" standard set forth in Arline. We have further concluded that section 504 is similarly applicable in the employment context, except for the fact that the Civil Rights Restoration Act replaced the Arline "otherwise qualified" standard with a slightly different statutory formulation. We believe this formulation leads to a result substantively identical to that reached in the non-employment context: namely, that an HIV-infected individual is only protected against discrimination if he or she is able to perform the duties of the job and does not constitute a direct threat to the health or safety of others.

2(...continued)

AIDS virus but do not have AIDS or ARC will sometimes be referred to as "asymptomatic HIV-infected individuals. References to AIDS should be understood to include ARC, except where a distinction between the two is expressly drawn. Finally, where we intend to refer to all HIV-infected individuals, whether symptomatic or not, we either refer to "HIV-infected individuals" or to "HIV infection" (without any "symptomatic" or "asymptomatic” modifier) or clearly indicate in the text that the discussion refers to both categories.

3 The medical information available to us indicates that HIV infection is a physical impairment which in a given case may substantially limit a person's major life activities. See infra at 6-11. In addition, others may regard an HIV-infected person as being so impaired. See infra at 12-13. Either element in a given case, we believe, would. be sufficient for a court to conclude that an HIV-infected person is an "individual with handicaps" within the terms of the Act. By virtue of the fact that the handicap here, HIV infection, gives rise both to disabling physical symptom: and to contagiousness, it is unnecessary to resolve with respect to any other infection or condition which gives rise to contagiousness alone whether that singular fact could render a person handicapped. In other words, the medical information available to us undermines the accuracy of the assumption or contention referenced in Arline that carriers of the AIDS virus are without physical impairment. 107 S. Ct. at 1128 n.7.

4 These conclusions differ from, and supersede to the extent of the difference, a June 20, 1986 opinion from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, for Ronald E. Robertson, General Counsel, Department of Health and (continued...)

I. Statutory Framework Under Section 504

Section 504 was intended to proscribe discrimination against the handicapped in programs or activities that are conducted by federal agencies or that receive federal funds. In relevant part, the statute provides:

No otherwise qualified individual with handicaps in
the United States, as defined in section 706 (8) of
this title, shall, solely by reason of his handicap, be
excluded from the participation in, be denied the bene-
fits of, or be subjected to discrimination under any
program or activity receiving Federal financial assis-
tance or under any program or activity conducted by any
Executive agency or by the United States Postal
Service.

29 U.S.C. 794.5

There are two definitions of "individual with handicaps,” one or both of which may be applicable to HIV-infected

4(...continued)

Human Services (Cooper Opinion). The conclusions herein incorporate subsequent legal developments (the Supreme Court's decision in Arline and Congress' passage of the Civil Rights Restoration Act) and subsequent medical clarification (see July 29, 1988 letter from C. Everett Kcop, M.D., Surgeon General, to Douglas W. Kmiec, Acting Assistant Attorney General, office of Legal Counsel (Koop Letter) (attached).

5 Section 504 thus has five elements. First, an individual claiming discriminatory treatment must be an "individual with handicaps, as defined in the Act. Second, the individual must be "otherwise qualified" for the benefit or program participation being sought. Third, the individual must be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under a covered program or activity. Fourth, the contested treatment must be solely by reason of .. handicap." And fifth, the discrimination must occur in a program or activity conducted or funded by the federal govern

ment.

The definition of "program or activity" is set forth in a new section 504 (b), which was added by section 4 of the Civil Rights Restoration Act. In general, the term is to be given an institution-wide scope rather than the program- or activityspecific scope called for by Grove City College v. Bell, 465 U.S. 555 (1984). Grove City was superseded by the Civil Rights Restoration Act. See sec. 2, Pub. L. No. 100-259.