New Jersey Employment Attorneys Blog
A person infected with HIV or AIDS cannot be denied medical treatment in a hospital or clinic, nor denied treatment by a medical practice or physical therapy group. HIV or AIDS under New Jersey’s Law Against Discrimination (NJLAD), N.J.S.A., 10:5-1 to 10:5-42, and its accompanying regulations have evolved to provide ever greater levels of protection for the disabled victimized by discrimination. Before a discussion of the law, let’s dispel any misconceptions about how HIV or AIDS is spread. HIV or AIDS is not spread through touch, tears, saliva, or urine. www.webmd.com/hiv-aids/top-10-myths-misconceptions-about-hiv-aids#1. You cannot catch it by: breathing the same air; touching a toilet seat or door knob or handle; drinking from a water fountain; hugging, kissing, or shaking hands; sharing eating utensils; or using exercise equipment at a gym. Id. However, HIV or AIDS can be spread from infected blood, semen, vaginal fluid, or breast milk. Id.
The NJLAD provides in N.J.S.A., 10:5-4: All persons shall have the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation without discrimination because of disability, subject only to conditions and limitations applicable alike to all persons. That opportunity is recognized as and declared to be a civil right. It is unlawful discrimination to refuse, withhold, or deny that opportunity, or to discriminate in furnishing it, because of disability. N.J.S.A.,10:5-12(f)(1); N.J.A.C. 13:13-4.3.
The NJLAD forbids “any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof. . . .” N.J.S.A., 10:5-12(f). To prove a claim of unlawful discrimination under the NJLAD, a claimant must show that he or she (1) had a disability; (2) was otherwise qualified to participate in the activity or program at issue; and (3) was denied the benefits of the program or otherwise discriminated against because of his or her disability.
Individuals with HIV or AIDS fit within the qualifying definition of handicap under the NJLAD, “suffering from AIDS or HIV infection”. N.J.S.A., 10:5-5(q). Medical facilities may be considered a place of public accommodation within the meaning of the NJLAD, since a place of public accommodation includes, “any dispensary, clinic or hospital.” N.J.S.A., 10:5-5(i). Additionally, virtually all medical facilities and medical practices advertise for patients and therefore, “caters to the public, and by advertising and other forms of invitation induces patronage generally.” Evans v. Ross, 57 N.J. Super. 223, 231, 154 A.2d 441 (1959). In this regard, it is important to emphasize that the NJLAD was designed to “insure that all citizens of this State shall have equal rights as members of the public and not be subjected to the embarrassment and humiliation of being invited to an establishment, only to find its doors barred to them.” Id. A medical facility or medical practice denying a patient treatment because they have HIV or AIDS also violates federal law under the Americans With Disabilities Act, 42 U.S.C. § 12101; See Bragdon v. Abbott, 524 U.S. 624 (holding that a diagnosis of HIV is an “impairment” which “substantially limits a major life activity” and further holding a dentist liable for denying treatment to a patient who was HIV positive). See also Howe v. Hull, 873 F. Supp. 72, 77 (N.D. Ohio 1994) (hospital which operates as a public accommodation subject to the ADA and individual physician subject to personal liability under the ADA).
If you are a person with a disability who has been denied the right to public accommodations or exposed to discrimination at work, you may have a viable legal claim. Call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are well experienced in handling discrimination cases. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.