Questions and Answers: The Americans with Disabilities Act and the Rights of Persons with HIV/AIDS to Obtain Occupational Training and State Licensing, U.S. Department of Justice, Civil Rights Division (2009)

Statutes, Regulations, and Agency Guidelines

This fact sheet makes it clear that federal disability antidiscrimination law prohibits state licensing agencies and occupational training schools from discriminating against individuals with HIV or AIDS by excluding them on the basis of a requirement that they be free from any “infectious, communicable or contagious disease.” The document reiterates that individuals with HIV or AIDS are protected by the ADA; that state licensing agencies and public trade schools for barbering, cosmetology, massage therapy, and other occupations are covered under Title II of the ADA; and that private trade schools are covered by Title III of the ADA. The DOJ provides specific examples of prohibited discrimination addressed in this fact sheet, such as a cosmetology school denying admission to an HIV-positive individual because state cosmetology regulations require that cosmetologists be free from contagious, communicable, or infectious disease. The document clarifies that, in nearly every instance, it is a violation of federal law for a licensing entity, trade school, or training program to exclude a person with HIV/AIDS because of their HIV status, and that transmission of HIV will rarely raise a legitimate “direct threat” issue under the ADA. The publication directs licensing boards and trade schools to amend their policies to state that a disease-free certification requirement excludes diseases, such as HIV, that are not transmitted through casual contact or the usual practice of the occupation at issue.

The text of this U.S. Department of Justice fact sheet closely tracks the guidance drafted and submitted to the Obama Adminstration by the Center for HIV Law and Policy, together with  the ACLU, Lambda Legal, GLAD, and the AIDS Legal Foundation of Chicago in HIV/AIDS Recommendations for the Obama Administration, which is also available in the Resource Bank.