Aids Goes to Court

By Richard Lacayo

Eight months after a diagnosis in January 1984 revealed that he had AIDS, Todd Shuttleworth was fired from his job as a budget analyst for Florida's Broward County. "We just couldn't take the chance of anything happening to employees or to anyone visiting the office," explains John Canada, budget and management policy director for the county. Many AIDS victims who feel wronged hesitate to embark on legal battles that they may not live to see completed. Not Shuttleworth. He brought a $15 million lawsuit against the county, and has continued to press it while struggling through AIDS-related pneumonia and meningitis.

Although gravely ill, Shuttleworth, 34, has lived to see his case scheduled. It will come to trial next week before U.S. District Judge Jose Gonzalez in Fort Lauderdale. If the court decides in Shuttleworth's favor, it will be an important victory for AIDS victims, just the second ruling from a U.S. district court that a federal law prohibiting discrimination against the handicapped protects people with AIDS. The first came only two weeks ago, when a judge in California ordered the Atascadero school district to readmit Ryan Thomas, 5, who had contracted AIDS through a blood transfusion and been banned from his kindergarten class after biting another child in a scuffle. While the law in question applies only to federal agencies or recipients of funds from Washington, federal-court rulings often influence the decisions of state courts and private employers.

Although medical evidence shows that AIDS is not transmitted by casual con tact, fear of infection has caused widespread and usually unwarranted prejudice against even those merely suspected of having the disease. Thus many of the AIDS legal cases, like Shuttleworth's, are based on claims of discrimination -- in employment, health care, insurance, housing, child custody and schooling. And where the law appears to be heading in these disputes is increasingly clear. Courts and agencies in at least 20 states have decided that AIDS victims are protected by existing state laws that prohibit discrimination against the handicapped.

This week, just days before the Shuttleworth trial begins, the U.S. Supreme Court will hear arguments in another Florida case, School Board of Nassau County v. Arline, that may have an important bearing on whether federal laws for the handicapped can be used to protect AIDS victims. The suit was brought by Gene Arline, who was dismissed in 1979 from her job as a third-grade teacher because she had tuberculosis, which can be passed on by sneezing or coughing and is far more easily transmitted than AIDS.

Although AIDS is not directly at issue, the Federal Government has raised the matter. In support of the school board, it filed a brief citing the controversial Justice Department opinion issued last June to guide federal agencies regarding AIDS-related discrimination. While agreeing that under the law AIDS is a handicap, Justice officials decreed that contagiousness is not. Therefore, they contended, it is permissible to discriminate on the basis of concern over contagion, even if that concern is groundless and irrational. In the Shuttleworth case, Broward County is using arguments that run parallel to those in the Justice guidelines. "They support what we've said all along," says Gordon Rogers, the county's attorney. If it chooses to do so, however, the Supreme Court may rule broadly enough in Arline to invalidate in effect the guidelines, which have so far had little impact on federal-agency decisions.

A major target of lawsuits has been the insurance industry, which is reluctant to cover AIDS victims or even potential victims of the disease. Laws forbidding insurers to use the AIDS-antibody test -- which reveals only exposure to the AIDS virus and is not a test for the disease -- have been passed by California, Wisconsin and the District of Columbia. Insurers are being accused of attempting to identify and screen out homosexual men, one of the groups at highest risk of contracting the disease, by denying policies on the basis of occupation, marital status and neighborhood. In California, National Gay Rights Advocates has filed a $10 million sex-discrimination suit against Great Republic Life Insurance, charging that the company has decided to refuse coverage to unmarried males working in such occupations as antiques dealer, florist and consultant.

"Insurance companies have targeted life-styles, beneficiaries, even Zip Codes," says Mauro Montoya, legal-services coordinator for the Whitman Walker Clinic in Washington. Sensitive to such charges and the mounting number of lawsuits, the National Association of Insurance Commissioners will meet in Orlando next week to consider volun tary guidelines that would, among other things, limit what questions may be asked of policy applicants. "To ask 'Have you ever been treated for AIDS?' would be appropriate," says Connecticut Insurance Commissioner Peter Gillies. "But not 'Are you a hairdresser?' "

Todd Shuttleworth, for one, knows about the problem of in surance. He lost his company-paid coverage when he was fired, could not afford to keep it on his own, and now lives in San Francisco on federal disability payments of $300 a month. He hopes to attend the court proceedings next week, but as a precaution he gave videotaped testimony in September. "I'm really not thinking about a settlement anymore," he says. "I've been so sick lately." Still, by pressing his claim Shuttleworth will be helping resolve the legal turmoil that has been raised by a deadly epidemic.

With reporting by Anne Constable/Washington and Joe McQuay/Fort Lauderdale