HIV and the "Direct Threat" Defense

The Americans with Disabilities Act defines “direct threat” as a “significant risk to the health and safety of others in the workplace.”   Essentially, the provision places decisions regarding the safety of interacting with HIV-positive individuals in the hands of the judiciary, which, in turn, relies on administrative agencies, the medical community and, unfortunately, the public perception of HIV and AIDS.   Since perception of risk is largely subjective, whether a risk is “significant” is less of a factual question than a social construct.   Thus, whether ADA protections extend to HIV-positive individuals depends, in part, on the myths and fears of the judiciary in regard to HIV.  Congress passed the ADA to prevent employers and others from discriminating against the disabled based on myths and fears.  Yet, the current standard allows the judiciary to use those same myths and fears to exclude some disabled individuals from the protections Congress intended them to have.   
This article argues that the determination of whether an individual is a direct threat to the health and safety of others should adhere to congressional intent; that whether a risk is significant must be based on objective scientific knowledge and free from the subjective perceptions of the public and the judiciary.  Section II of this article provides a backdrop for discussing how the risk of HIV should be evaluated, including a review of the pathology and epidemiology of HIV, the statutory framework for analyzing contagions under the ADA, and the case law interpreting the direct threat provision.  Section III illustrates the conflict among the circuits regarding the application of the direct threat provision to individuals with HIV.  Section IV analyzes and compares differing approaches to risk and whether those approaches, as well as the circuit cases, comport with congressional mandates.  Section V proposes a new standard for making direct threat determinations, focusing on the probability that a risk will, in fact, materialize, rather than on perceptions about specific disabilities.