Questions and Answers: The ADA and Persons with HIV/AIDS

III. Public Accommodations

What is a public accommodation?

A public accommodation is a private entity that owns, operates, leases, or leases to a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctor’s offices, dentist’s offices, hospitals, retail stores, health clubs, museums, libraries, private schools, and day care centers.

Entities that meet the legal definition of a private club and those that qualify for an exemption for religious entities are not considered places of public accommodation.

What constitutes discrimination?

Discrimination is the failure to give a person with a disability the equal opportunity to use or enjoy the public accommodation’s goods, services, or facilities. Examples of ADA violations would include:

• A dentist who categorically refused to treat all persons with HIV or AIDS.

• A moving company that refused to move the belongings of a person who had AIDS, or that refused to move the belongings of a person whose neighbor had AIDS.

• A health club that charged extra fees to persons who had HIV, or that prohibited members with HIV from using the steam room or sauna, or that limited the hours during which members with HIV could use the club’s facilities.

• A day care center that categorically refused admission to children with HIV or the children of mothers with HIV.

• A funeral home that refused to provide funeral services for a person who died from AIDS-related complications.

• A building owner who refused to lease space to a not-for-profit organization that provided services to persons with HIV or AIDS.

• A cosmetology school that refused to enroll a student once they learned that she had HIV.

• An overnight summer camp where children sleep in group cabins that requires a camper with HIV to sleep in the camp infirmary.

The ADA also requires public accommodations to take steps to ensure that persons with disabilities have equal access to their goods and services. For example, the ADA requires public accommodations to make reasonable changes in their policies, practices, and procedures; to provide communication aids and services; and to remove physical barriers to access when it is readily achievable to do so.

What types of changes in policies, practices, or procedures would a public accommodation have to make to ensure equal access to persons with HIV or AIDS?

Even though a public accommodation may not intend to discriminate against persons with HIV or AIDS, its customary way of doing business may unintentionally exclude persons with HIV or AIDS or provide them with lesser services. If reasonable modifications in the business policies, practices, or procedures would rectify the problem, the public accommodation would be required to make those changes unless doing so would fundamentally alter the nature of the goods, services, or facilities at issue. For example:

• A hotel does not allow pets. It would be a reasonable modification of the hotel’s policy to allow a person who has lost his vision from cytomegalovirus retinitis, an AIDS-related illness, to have his service animal stay with him in the hotel.

• A pharmacy requires customers to stand in line to be served. A person with AIDS finds it too tiring to stand in line. It would be a reasonable modification of the pharmacy’s procedures to allow the person to announce her presence and/or take a number and then sit down until her prescription is filled. It may also be a reasonable modification for the pharmacy to provide curbside service.

Are health care providers required to treat all persons with HIV or AIDS, regardless of whether the treatment being sought is within the provider’s area of expertise?

No. A health care provider is not required to treat a person who is seeking or requires treatment or services outside the provider’s area of expertise. However, a health care provider cannot refer a patient with HIV or AIDS to another provider simply because the patient has HIV or AIDS. The referral must be based on the fact that the treatment the patient is seeking is outside the expertise of the provider, not the patient’s HIV status alone. For example:

• An individual with HIV has a severe allergic drug reaction while on vacation and goes to the nearest emergency room. The hospital routinely treats people experiencing allergic drug reactions. Sending the patient to another hospital that allegedly has an “AIDS unit” would violate the ADA.

• An individual with HIV is in a car accident and suffers severe third degree burns. He is taken to the nearest hospital, which does not have a burn unit. Sending the patient to another hospital that has a burn unit would not violate the ADA.

• A person with HIV goes to the dentist for a teeth cleaning. The dentist refers her to another dentist because the dentist claims he is “not equipped” to treat persons with HIV. Because there is no special equipment necessary for providing routine dental care to those with HIV or AIDS beyond universal precautions (for example, gloves, mask, and goggles) that a provider should use when treating all patients, this “referral” would violate the ADA.

• A person with HIV goes to a general dentist who determines that the patient requires periodontal surgery. The dentist tells the patient that he is not a periodontal surgeon and is, therefore, not qualified to perform her treatment. The dentist refers the patient to a periodontal surgeon for diagnosis and treatment, with the understanding that the patient will return to the dentist for the provision of routine dental care. This would not violate the ADA.

What types of communication aids and services would a public accommodation be required to provide to persons with HIV or AIDS?

A public accommodation is required to provide auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless an undue burden (that is, significant difficulty or expense) or fundamental alteration would result. Thus, if a person with HIV or AIDS has an impairment—such as a vision, hearing, or speech impairment—that substantially limits his or her ability to communicate, the public accommodation must provide auxiliary aids or services that will ensure equal access to the goods, services, or facilities that the public accommodation offers. The impairment can be one that the person has had from birth, or one that has recently developed as a result of an AIDS-related complication.

The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length, importance, and complexity of the communication involved. Some examples of auxiliary aids and services (again, the effectiveness of which will be gauged based on the particular situation) are: exchanging written notes; typing back and forth on a computer; providing a qualified sign language interpreter; having a telecommunications device for the deaf (TTY) for customers with hearing impairments; reading aloud; providing large print, audiotapes, or Braille materials; locating merchandise for customers with vision impairments; and using TTYs or computer terminals for persons with speech impairments. For example:

• A person who was born deaf and uses American Sign Language as his primary means of communication goes to his physician to receive the results of his HIV test. The test results have come back positive. The physician may be required to obtain and pay for a sign language interpreter, as the communication between the physician and his patient is likely to be lengthy, important, and complex and may only be effective if a sign language interpreter is provided.

• A person with AIDS has recently lost his vision as a result of an AIDS-related complication. It would be appropriate for a restaurant waiter to read aloud the contents of the menu.

Can a public accommodation charge for reasonable modifications in its policies, practices, or procedures, or for the provision of communication aids and services?

No. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs necessary to provide nondiscriminatory treatment. For example:

• A law firm routinely prepares wills and trusts. A woman with AIDS who recently has experienced vision loss requests that the firm draft her will and guardianship papers, and requests that the firm provide her with all drafts of her documents in large print. The law firm cannot charge the woman extra for preparing the documents in large print.

Can a public accommodation exclude a person with HIV or AIDS because that person allegedly poses a direct threat to the health and safety of others?

In almost every instance, the answer to this question is no. Persons with HIV or AIDS will rarely, if ever, pose a direct threat in the public accommodations context.

A public accommodation may exclude an individual with a disability from participation in an activity if that individual’s participation would result in a direct threat to the health or safety of others. “Direct threat,” however, is defined as a “significant risk to the health or safety of others” that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures, or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual. The individual assessment must be based on reasonable judgment that relies on current medical evidence. For example:

• A restaurant’s refusal to admit an individual with AIDS would violate the ADA, because HIV cannot be transmitted through the casual contact that occurs in a restaurant setting.

• A gynecologist’s refusal to treat a woman with HIV would be a violation of the ADA. Health care providers are required to treat all persons as if they have HIV or other blood-borne pathogens, and must use universal precautions (gloves, mask, and/or gown where appropriate, etc.) to protect themselves from the transmission of infectious diseases. Failure to treat a person who discloses that she has HIV out of a fear of contracting HIV would be a violation of the ADA, because so long as the physician utilizes universal precautions, it is generally safe to treat persons with HIV or AIDS.

• A day care center’s refusal to admit a child with HIV is also a violation. Day care centers cannot exclude a child solely because he has HIV or AIDS. HIV cannot be easily transmitted during the types of incidental contact that take place in child care centers. Children with HIV or AIDS generally can be safely integrated into all activities of a child care program. Universal precautions, such as wearing latex gloves, should be used whenever caregivers come into contact with children’s blood or bodily fluids, such as when they are cleansing and bandaging playground wounds. This applies to the care of all children, whether or not they are known to have disabilities.

• A health club’s revocation of the membership of a person with HIV, because of the fear that the person may transmit the virus through the sweat he leaves on the club’s weight machines, also violates the ADA. There is no evidence that HIV can be transmitted by sweat.

What types of physical barriers to access is a public accommodation required to remove? Why is this important to persons with HIV or AIDS?

Persons with HIV or AIDS may find that they have less strength to open doors, or may tire more easily when walking or climbing stairs. They may use a wheelchair, electric scooter, or other device for mobility purposes. The ADA’s barrier removal requirements address these situations.

The ADA requires that public accommodations remove all physical barriers to access in their existing facilities, where it is readily achievable to do so. “Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.”

Examples of barrier removal may include installing ramps, making curb cuts in sidewalks and entrances, rearranging furniture, widening doors, installing accessible door hardware, and installing grab bars in toilet stalls. The obligation to engage in readily achievable barrier removal is a continuing one.

The ADA requires that all newly constructed places of public accommodation be readily accessible to and usable by individuals with disabilities. The ADA also requires that all alterations made to existing facilities be readily accessible to and usable by individuals with disabilities.

What can a person do if he or she is being discriminated against by a place of public accommodation on the basis of his or her HIV status?

A person who believes that he or she is being discriminated against may file a complaint with the Department of Justice. Complaints may be directed to the Department of Justice at the address below.

The Department of Justice is authorized to investigate complaints and to bring lawsuits in cases of general public importance, or where there is a pattern or practice of discrimination. The Department may seek injunctive relief (such as having the public accommodation correct its discriminatory practices), monetary damages, and civil penalties. Due to resource limitations, the Department is unable to investigate every complaint that it receives.

Individuals are also entitled to bring private lawsuits against places of public accommodation. If a person files a private lawsuit, he or she may not seek monetary damages. However, the person may seek injunctive relief and reasonable attorney’s fees and costs.