The Ebola crisis has captured the American public’s attention over the last several months as the first infected individuals appeared on our soil. Since August, there have been increasingly strident calls for quarantines and isolation of those even suspected of coming into casual contact with anyone with a remote chance of developing the disease.
Children are being excluded from schools, employees are told not to report to work, and health care workers returning from Africa are placed in isolated confinement without court orders. In some cases, such action is consistent with medical science and the guidelines and recommendations developed by the U.S. Centers for Disease Control and Prevention. In other cases, the only justification seems to be that it is better to be safe than sorry in the early days of this outbreak. This approach, even if understandable, violates federal civil rights laws and is illegal.
The Americans with Disabilities Act prevents discrimination against qualified individuals with disabilities who are in the workplace, state programs and in public accommodations such as schools, stores and restaurants. There is little doubt that individuals infected with Ebola, or those who are treated as if they might be, qualify as having a disability protected by law. The ADA also protects those associated with infected or potentially infected people, such as friends, family members and volunteers who care for such individuals. Federal law makes clear these protections are not waived during a public health crisis.
That said, the ADA does not require employers, the state or the public to ignore threats posed by an infectious disease. The law specifically acknowledges that if an individual poses a direct threat to himself or others, he may be denied services or treated in ways that would otherwise constitute discrimination. The critical point, however, is that this assessment must be individualized and based on the actual risks presented by the situation. An abundance of caution will not suffice to keep a child or worker at home; instead, specific, scientifically grounded medical evidence of a significant risk that cannot be eliminated with reasonable accommodations must support the need to limit that individual’s freedom.
Take, for example, the recent litigation filed in Connecticut over a third-grader who was ordered to stay out of school for 21 days after a family trip to Nigeria. The World Health Organization has declared Nigeria to be free of Ebola, and the child was never in contact with anyone who had the disease. At no time did she exhibit any symptoms. As such, under CDC guidelines, she would pose no identifiable risk of Ebola transmission. Nevertheless, the child was readmitted to school only after her parents filed a lawsuit and 20 days had passed.
In Atlanta, the children and spouses of CDC workers are experiencing similar unlawful discrimination. Recently, two children were escorted out of school and told not to return without a doctor’s note because their father, a CDC employee they did not live with, recently returned from Sierra Leone. Their mother, his ex-wife, likewise was sent home from her teaching job.
In another case, a woman was dismissed from her student-teaching job for 21 days because she mentioned on social media that she had hugged her father, a CDC employee recently returned from Sierra Leone. The school concluded it was “an easy call” to exclude her because it would “keep everything as calm as it could be.”
What the school ignored is that such calls also easily violate the ADA. At no time did either CDC employee manifest any signs of Ebola infection, and the risk that their children would infect others with Ebola was zero. These cases represent precisely the type of behavior the ADA is designed to preclude, and a cautionary tale of the illegal discrimination that so easily can arise as a result of fear and ignorance.
As Benjamin Franklin said, those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. The real test of our commitment to civil rights laws comes in times of crisis. As we work through the Ebola threat, it is critical that those in positions of power act deliberately based on scientifically sound information rather than in a reactionary fashion based on irrational fears. This not only makes good sense for good citizens in a democracy – it is required by law.
Wendy Hensel is associate dean for research and faculty development and a professor at Georgia State University College of Law.
