Discrimination on the Basis of Vaccination Status: Illegal

(updated January 8, 2024)

Threatening to take someone’s job away if they’re not vaccinated is harsh, sure, but is it illegal? What about not letting them into the office, as is as of April 2022 still the case in New York City, and at companies across the nation. Many non-profit organizations won’t let people participate in their activities, or attend their events unless they are “fully vaccinated” or worse “up to date” or “boosted if eligible.” Is that legal?

No, all of this is illegal, since these organizations and events are subject to federal Civil Rights law, in particular the Americans With Disabilities Act of 1990, which prohibits discrimination on the basis of medical condition, as long as there is no direct threat because of that condition. It applies to public and private employers, as well as any organization, public or private, providing public accommodations like theaters and museums. They cannot legally keep people out of a job or attendence at an event just because they don’t have a COVID-19 vaccination.

But is being unvaccinated really a medical condition protected by the ADA? In the current social climate and with the claims that can actually legally be made about the vaccines in question, absolutely.

Am I saying that people who have some disability and therefore cannot get a vaccination should be permitted special exemptions? No, that’s not what I’m saying. I’m saying that unvaccinated people are “disabled” by the definition of the Americans with Disabilities act and therefore their rights may not be denied simply on the basis of having this disability.

You see, “disability” as defined by the ADA can be either a real physical impairment or being regarded as having one. In the case of a vaccination requirement, an unvaccinated person is regarded as having an impaired immune system relative to a vaccinated person, and more likely to cause disease. This is an imagined threat, not a real one. Discrimination can only legally occur if there is a real threat, and it is up to the discriminator to prove that such a threat exists.

The Americans With Disabilities act was passed in 1990 in order to, among other things, stop discrimination against gay people, whose activites were supposed to make them more likely to carry HIV, the deadly “AIDS virus.” Even requiring an HIV negative result was made illegal. It is only legal to discriminate against people for medical reasons when they present a direct health or safety threat to others because of their disability. But if that threat is minuscule or purely imaginary, as is the case of someone testing positive for HIV, then such discrimination, whether at work or in public accommodations, is illegal.

From the U.S. Department of Justice:

https://www.ada.gov/hiv/ada_qa_hiv.htm

A public accommodation may exclude an individual with a disability from participation in an activity if that individual’s participation would result in a direct threat to the health or safety of others. “Direct threat,” however, is defined as a “significant risk to the health or safety of others” that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures, or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual. The individual assessment must be based on reasonable judgment that relies on current medical evidence.

Whether the assumed immune system deficiency is because of being HIV-positive or being unvaccinated and having an “unaltered by mRNA technology” immune sytem, under the Americans with Disabilities Act, you cannot use this assumption to discriminate against someone. It makes no difference that COVID-19 is considered to be a more easily transmissible disease than AIDS. The COVID-19 vaccines have not been shown to prevent infection or transmission, so you cannot say an unvaccinated person constitutes a significant risk to the health and safety of others, while a vaccinated person does not. This is supported by statements from the Food and Drug Administration (FDA), the only agency in the United States with the authority to rule on the effectiveness of a vaccine. As attested by the official FDA web archive, from Fall 2021 until September 2023 the FDA Q&A for the “approved” vaccines by Pfizer-BioNTech (Comirnaty) and Moderna (Spikevax) made it explicit that these vaccines have not been shown to either prevent one from testing positive for COVID-19 in the first place, or from transmitting the illness to others in the second place:

https://www.fda.gov/vaccines-blood-biologics/qa-comirnaty-covid-19-vaccine-mrna (Comirnaty Q&A, captured Sep 10, 2023 last revised 02/08/2022)

https://www.fda.gov/vaccines-blood-biologics/qa-spikevax-covid-19-vaccine-mrna (Spikevax Q&A, captured Sep 10, 2023, last revised 04/19/2022)

“It is not known if [the COVID-19 vaccine] protects against asymptomatic SARS-CoV-2 infection.”

“Most vaccines that protect from viral illnesses also reduce transmission of the virus that causes the disease by those who are vaccinated. While it is hoped this will be the case, the scientific community does not yet know if [the COVID-19 vaccine] will reduce such transmission.”

So when it comes to deciding whether to permit entry at all, or to require a special health screening like a PCR or antibody test, or to wear a mask, COVID-19 vaccination status cannot be a consideration. All such discrimination is illegal. It is based on a faulty notion of what the available vaccines have been proven to do. All people must be treated equally, regardless of COVID-19 vaccination status. In the United States of America, that is the law of the land.