Legal Expert on AIDS Fights Fear, Workplace Bias

The AIDS virus has triggered an epidemic of suffering and death in Los Angeles. With a cure for AIDS and an effective vaccine still unrealized goals, society may have a better chance of solving and preventing the mistrust, prejudice, and fear that accompany the epidemic.

David I. Schulman, supervising attorney for the AIDS/HIV discrimination unit of the Los Angeles city attorney’s office, describes himself as an AIDS expert “whose first responsibility was not to look at biochemistry or clinical care or epidemiology but to look at everybody else’s problem--the fear issue.”

In January, 1986, Schulman became the nation’s first full-time AIDS anti-discrimination lawyer in government.

Schulman’s original assignment was to enforce a landmark 1985 city ordinance that banned AIDS-related discrimination. The ordinance protects people with human immunodeficiency virus (HIV) infection against discrimination in housing, education, medical and dental care, as well as mistreatment at work. Businesses and government agencies that discriminate are subject to possible lawsuits by the city attorney’s office. The ordinance makes clear that HIV, the cause of AIDS, is transmitted through sexual contact and exposure to infected blood, not through casual contact with infected individuals.

The unit investigates about 60 discrimination complaints a year. Its chief role is often educational. The information it provides based on research and analysis often leads to the resolution of problems. In some instances, conflicts are mediated. Unlike many other areas of law enforcement, the discrimination cases rarely end up in court.

In recent years, Schulman’s role has expanded. It now includes advising the city, an employer of more than 40,000 people, and Los Angeles-based companies on AIDS workplace law and policy. It also includes speaking to community and professional groups and working with the Los Angeles County Bar Assn. on a project that provides specially trained volunteer attorneys to HIV-infected individuals who need legal services. The unit has become a model for AIDS anti-discrimination efforts across the nation.

Schulman also helped to draft the sweeping AIDS policy adopted by the Los Angeles City Council in October, which requires education about AIDS for all city workers and provides legal protection for infected individuals.

A graduate of Stanford and UCLA Law School, Schulman has been with the city attorney’s office for nearly 11 years, the first six as a criminal prosecutor. His background in medical ethics and health law dates to the mid-1970s, when as a law student he became interested in the legal issues surrounding death and dying.

Q: Why has the AIDS epidemic caused so much fear?

A: First, there are the specifics of the disease. It involves homophobia, stigma and death. Secondly, our cultural guard about epidemics in general had been lowered immediately prior to the arrival of this epidemic. Societies have traditionally known that there would always be a new plague but our society bought into the idea that it wouldn’t happen in the United States in the late 20th Century. This made it difficult for policy makers and members of society to cope with the idea that we had a new serious infectious epidemic on our hands, regardless of its nature.

Q: In general terms, what is the role of your office?

A: From the start, we have used the law to include HIV-infected people in the general legal principles of society as a whole. In 1986, the very, very frightening impulse was to construct a completely separate set of principles regarding the epidemic. At the time, we were fracturing as a society into “us” versus “them.”

Q: How have the complaints you receive of AIDS-related discrimination changed over the last five years?

A: In the early years, many of the questions revolved around hysteria emanating from confusion over how HIV was transmitted. For example, employers didn’t know what they should be frightened of. They didn’t know if they had a duty to protect employees and, (if) so, needed to fire an infected person. They didn’t know how far they could go in giving in to the irrational fears of fellow employees.

These early problems could usually be addressed by providing authoritative medical information. Today, we face many more difficult problems. We hear about many instances in which small- and mid-size employers are concerned that if they continue to employ an HIV-infected individual their cost of health insurance will become so high that they will no longer be able to offer health insurance for anyone. The employer doesn’t know if their health insurer is using AIDS as an excuse for more broadly-based rate hikes, but they understandably don’t want their renewal rates to double or triple.

Because insurance is regulated at the state level, our unit’s only power is to ensure that health benefits are not delivered in a discriminatory fashion. But when an employer threatens to remove health care coverage from all employees, then tragically the city has no authority to intervene.

Q: What new forms of AIDS-related discrimination are emerging?

A: As the epidemic has widened, there is a growing danger that medical and dental professionals will discriminate in the provision of health care services to HIV-infected people. That is illegal. But there is the potential for backlash as many more HIV-infected people disclose to many more health care providers that they are infected. Our concern is to stay a step ahead of this by working with health care professional organizations. AIDS discrimination in the workplace also threatens to take on a new character as many more people find out they are infected early in their illness.

Q: The recent case in Florida where a young woman appears to have contracted AIDS from her dentist has caused a great deal of concern. What is your perspective on HIV-infected health-care workers?

A: The difficult nature of the Florida case is the way in which so many people can identify with the infected patient. This identification risks anew the impulse we have fought so long to punish the bearers of the epidemic, such as the dentist. Once again, the law’s role is to insist that our powerful need to scapegoat not be translated into policies that have no bearing in facts. The risk of HIV transmission in a dental setting, even if proved in this particular case, is immensely small. In a 1987 case involving a Florida school teacher with tuberculosis, the U.S. Supreme Court required that we not discriminate against individuals with infectious diseases unless the risk they pose to others is “significant.”

Q: What are some of the other more recent problems?

A: As more people of color become infected, issues of race-based prejudice and issues of AIDS discrimination intermingle. This presents daunting new problems of justice.

In addition, the powers of public health authorities to isolate or quarantine individuals who willfully place others at risk will be refined by the courts. Clearly, such acts are not the primary basis for the spread of the epidemic. However, society demands a response to such infected individuals.

Q: Can a city attorney’s office fight AIDS discrimination in ways that other organizations can’t?

A: From the beginning, we have found that while AIDS advocacy groups are important sources of information, there are large segments of the American public which are not hearing these groups because of mistrust and prejudice. A very mainstream agency like a city attorney’s office can carry information to segments of the community not easily reached by AIDS Project Los Angeles or Minority AIDS Project, for example. Our efforts support the leadership of such organizations. Recent efforts by the United Way and the American Red Cross to provide education and training in AIDS in the workplace issues do so as well.

Q: When are you most successful in intervening in disputes?

A: Our best success is when an HIV-infected person is trying to keep a problem from happening, for example at work. If there is already polarization at work because some people know the worker’s diagnosis but don’t know what to do about it, it is more difficult. The affected employee has perfectly legitimate reasons to fear the worst and may distrust any response from the employer. That is when we sometimes need to bring both sides together through mediation.

Q: What is your greatest disappointment?

A: As a society, we lost the opportunity to do what needed to be done on a public health basis to significantly limit the epidemic. We failed to educate people in humane but aggressive ways at a time when they could have truly protected themselves against HIV infection. I carry with me a sadness that we failed to do so because of irrational fears and prejudice.

Q: What is your greatest satisfaction?

A: As I learned about previous epidemics, I found that the law was almost always used to legitimize scapegoating and victimizing. With AIDS, we have been able to use the law in a completely different way. We have fought these problems and helped to prevent a sense of “we” versus “them” from developing. We usually think about law as something that punishes us. We forget that the law also embodies the standards of behavior that we expect citizens to abide by.