Document Type

Article

Publication Title

University of Chicago Legal Forum

Abstract

AIDS. The stories that have been written about the virus and the disease, death, and despair that follow in its wake are so numerous that it seems almost fruitless to try to say anything about the subject which has not been said better before. Nonetheless, despite the obvious outpouring of information and analysis about AIDS, it is difficult to find a powerful consensus about the proper response to any of the manifold social problems it creates. The Presidential Commission to study AIDS began its life torn by bitterness and dissension. Once reconstituted, it issued a report calling for a massive commitment to extensive enforcement of antidiscrimination laws not only in employment, but also in housing. The early responses to the report indicate that the Reagan administration has adopted a cautious stance towards the Commission's recommendations. As the public debate over AIDS continues, the incidence of the disease continues to rise, and the underlying virus continues to spread. It seems, therefore, more imperative than ever to develop some theoretical overview of the challenge that AIDS presents. Unfortunately, social crises do not produce the theories needed to understand such challenges. Instead they only place greater strains on whatever few general theories are in place. In order to deal with the question of AIDS, we have to step back from the immediate elements of the controversy, and ask how this problem should be handled in light of the general theories of social control and private contract that are already available to us. In this paper I propose to take just this approach, and to apply what I know of legal and social theory to the problem of AIDS, focusing on one of the most controversial issues of the present time: Do private employers have the right to test their current and prospective employees to see whether they are infected with the AIDS virus, even if (as is often the case) they manifest no signs of AIDS or any associated disease? The question can be stated alternatively: Do present and prospective employees have the right to be evaluated without AIDS testing and without regard to their antibody status? In order to make the nature of the analytical inquiry more focused I shall assume (as seems to be almost, but not quite, universally the case) that the AIDS virus is spread from person to person only by blood transmissions or intimate sexual contact. Stated otherwise, I shall assume that ordinarily AIDS carriers present no health risk to their co-workers, customers, patients, clients, or pupils, save for exceptional occupations like hospital staff in burn units.

First Page

33

Volume

1988

Publication Date

1988

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