HIV Discrimination/No ADA Rights, Part I

The “direct threat” defense to discrimination often comes up for people with infectious diseases, especially those who are HIV positive. Several courts have decided that HIV positive prisoners, although they are “individuals with a disability”, are not “qualified” for various prison programs or activities. For example, in Omishea vs. Happer, the eleventh circuit rejected constitutional and Section 504 (ADA) claims or prisoners who were not allowed to participate in prison recreation, religious, and educational programs because they were HIV positive. These positive prisoners could only participate in a limited number of programs separate from the programs available to the general populations. The lower court held HIV positive prisoners who were not “otherwise qualified” to participate in programs with the general population because of the possibility of thigh risk behavior, like violence, IDU and sex. The eleventh circuit agreed and found the risk of HIV transmission is “significant” because of the severe consequences of HIV infection, even if the probability of transmission is low. The Omishea opinion allows a prison to disqualify positive prisoners from participating in many programs and significantly reduces Section 504 and Title II’s protections.