Fighting Aids

By Alain L. Sanders

When James Dorsey, an unemployed teenager from Detroit, packed his bags to go to Dayton last summer, he looked forward to a promising new beginning. He enrolled in classes at a U.S. Job Corps residential training center, hoping to qualify for a clerical job. But Dorsey had hardly started classes when he was summoned to the program's medical office for an unpleasant surprise. He was informed that he had tested positive for AIDS antibodies during his required physical exam, then dropped from the program. "The world was pulled out from under me," recalls Dorsey, who has no symptoms of AIDS. Last month he filed suit in federal court in Washington demanding reinstatement.

Dorsey, who is mounting the latest major challenge to the use of AIDS testing, is one of an estimated 1.5 million individuals known as "healthy seropositives." These are people whose blood indicates infection with the AIDS virus but who have not developed the debilitating disease that has now attacked 71,171 nationwide. His situation places him among a growing group of Americans who often have difficulty finding work, housing and even medical care solely because of their test results. Reports abound of individuals who have been forced to resign from jobs, threatened with loss of a lease, or rejected for health or life insurance.

Safety is usually the cited reason for setting apart those who test positive. Job Corps Director Peter Rell explains that his agency's exclusionary policy is meant to secure "as healthy and disease-free an environment as possible." All 36,000 participants in the agency's residential programs are warned of the test on enrollment forms, he says, and are provided with counseling if they are rejected because of the results. The high costs of treating AIDS patients is an actuarial problem for insurers, who routinely reject seropositives seeking life or medical coverage. "Once we sign on, we're there for the duration," says Emily Crandall, vice president of the Guardian Life Insurance Co. of America.

Victims of these practices counter that testing positive does not necessarily mean a person will develop AIDS. Nor does the presence of carriers, or even those who have come down with AIDS, endanger the workplace, critics insist, because medical evidence indicates that the virus cannot be transmitted by casual contact. Discrimination on the basis of the blood tests may actually harm public health, they warn. "If you fear you are going to lose your job and just about everything else in your life," says Katherine Franke of the New York City Human Rights Commission, "there is no incentive to take the test and get information about safe sex and needle use." Last week, reacting to concerns about confidentiality, the Centers for Disease Control announced that starting next year it would routinely survey one-third of the nation's newborns for AIDS antibodies, but no names will be attached to the blood samples analyzed.

The law is starting to bend in favor of those who have been singled out by the tests. Forty-two states and the District of Columbia have antidiscrimination laws against the handicapped; some state courts and executive actions have extended the protections of these statutes to people branded by their blood-test results. Delaware's attorney general recently forced the Nemours Foundation to drop its policy of transferring out seropositive patients from its Wilmington hospital. Municipalities have also been using their antidiscrimination ordinances. In New York City last March, an administrative judge awarded $26,647 to a man who was refused treatment by his longtime dental clinic. Some states, including California, Florida, Massachusetts and Wisconsin, have laws restricting the use of AIDS tests as an employee-screening device and directing that lab results be kept confidential. Last week New York joined the list by completing action on its version of a confidentiality bill.

Test victims are also getting help from the federal courts. Although last year one federal bench rejected a Fourth Amendment challenge to a State Department employee-testing policy, in March another decided that the < mandatory testing of workers by a Nebraska health agency violates the amendment's ban on unreasonable searches. In June a federal district court in Los Angeles produced a major victory for foes of AIDS tracing in addressing the claim of a gay man who was tossed out of an alcohol rehabilitation program at Centinela Hospital in Inglewood, Calif. Judge Pamela Ann Rymer ruled that a person fingered by an AIDS test can be protected by the federal Rehabilitation Act of 1973, which bars discrimination against the handicapped by institutions receiving federal funds. "For the first time, a federal court has ruled that fear of contagion cannot form the basis for discrimination against seropositives," says Mickey Wheatley of the Lambda Legal Defense and Education Fund, a gay-rights group.

Predictably, such legal developments have encouraged a backlash. One of the most volatile battles is now raging in California. The state's stringent confidentiality law is being challenged by a proposition on the November ballot. It would require that public-health officials be informed of all positive AIDS tests and that all sexual partners of those who test positive be traced and alerted. The measure's chief proponent, Republican Congressman William Dannemeyer, says he wants to correct the state's "absurd policy" of turning a "public-health issue into a civil rights issue." But Benjamin Schatz, a lawyer with National Gay Rights Advocates, calls the proposition an "AIDS hysteria law." The referendum measure, which has a good chance of passing, could affect the anti-discrimination movement nationwide. Few things are as influential in framing a developing legal landscape as some solid election returns.

With reporting by Dan Cook/Los Angeles and Barbara Goldberg/New York