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In this Article, we examine the disability definition "problem" from the standpoint of HIV infection, specifically HIV infection in its "asymptomatic" phase . . . We begin by summarizing the need for federal nondiscrimination standards offering protection for individuals with HIV. We then provide a brief discussion of the definition of disability under the resulting legislation, the Americans with Disabilities Act of 1990 (ADA). We summarize the early judicial and administrative views of the ADA as protecting individuals with HIV. We next turn to judicial interpretation of the ADA in cases in which that understanding has been disputed, including, most notably, the Supreme Court's attempt to answer the question in its seminal HIV case, Bragdon v. Abbott, as well as the Court's subsequent interpretations of the ADA definition. We then discuss the results of a fifty-state survey of HIV-specific statutes, as well as more general state disability statutes. In our survey, we provide a descriptive and analytical discussion of these laws, offering our views as to whether they provide protection independent of federal provisions. An appendix to this paper provides a table summarizing significant features of these laws, and a separate compilation provides a state-by-state summary of their disability definition as it relates to HIV infection.

Publication Citation

3 J. Health Care L. & Pol'y 266-329 (2000)