The recent announcement by President Obama to commit $100 million dollars to fund research toward a cure for HIV is welcome news. We are now into the fourth decade of the HIV/AIDS pandemic, and while antiviral treatment regimens have turned the disease into a manageable, chronic condition for most people who have access to life-saving medications, the stigma that an HIV or AIDS diagnosis carries endures. Although education and knowledge about the disease has reduced the hysteria that once pervaded the public’s perception of those carrying the virus, certain attitudes are still prevalent and can sometimes result in continued discrimination of HIV positive individuals. Sadly, these attitudes may never be fully eradicated until a cure is in fact found.
People living with HIV or AIDS can still face unwarranted discrimination based on their health status, including employment, housing and access to healthcare. The Affordable Care Act (commonly known as ACA or Obamacare) will help improve the situation for many individuals who have been denied healthcare due to their HIV status. And while there are federal and state laws that are intended to protect those with HIV from discrimination in housing and employment, discrimination continues to exist.
In recent years, several high profile discrimination cases have been brought against employers. In one case, and Air Force Veteran was refused a job as a baggage screener with the Transportation Security Administration (TSA) because he has HIV. In another, an employee at a Detroit dental clinic, James White, was “banned from touching doorknobs, was followed around by coworkers with bottles of Lysol, and subjected to sudden and abrupt schedule changes” after being diagnosed with HIV. This occurred even though he did not work directly with patients in his position as a billing clerk. Mr. White was eventually terminated for “excessive absences” following a brief hospital stay.
Discrimination against individuals with HIV or AIDS is prohibited by federal law under the Americans with Disabilities Act (ADA). The ADA guarantees equal opportunity for individuals with disabilities in public employment, transportation, State and local government services, telecommunications, and public accomodations. HIV/AIDS qualifies as a “disability,” even if the individual is asymptomatic .
The ADA also applies to individuals who are perceived to be HIV positive. Therefore, a person who is fired based on a rumor that he is HIV positive or has AIDS would be covered by the law. The ADA also protects anyone who is faces discrimination because they have an association or relationship with an HIV positive individual.
The ADA applies to all public employers and private employers with 15 or more employees. In California, state law extends the ADA protection to companies with five or more employees. It prohibits discrimination against, “qualified individuals” with disabilities. This is a defined as a person who meets legitimate skill, experience, education, or other requirements of an employment position he or she holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation. Essential functions of the job are the basic duties that are the reason the job position exists. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified because of his or her inability to perform unnecessary or incidental job functions.
According to the ADA guidelines, “a ‘reasonable accommodation’ is any modification or adjustment to a job, the job application process, or the work environment that will enable a qualified applicant or employee with a disability to perform the essential functions of the job, participate in the application process, or enjoy the benefits and privileges of employment. Examples of this include: “making existing facilities readily accessible to and usable by employees with disabilities; restructuring a job; modifying work schedules; acquiring or modifying equipment; and reassigning a current employee to a vacant position for which the individual is qualified.”
An employer is not required to make an accommodation if it would impose an undue hardship on the operation of the business. This would be an action that requires “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation. The potential loss of customers or co-workers because an employee has HIV/AIDS does not constitute an undue hardship.
Employers cannot refuse to hire an applicant because they are afraid the worker will become too ill to work in the future. Furthermore, employers can’t decide to not hire qualified people with HIV or AIDS because they are afraid of higher medical insurance costs, worker s compensation costs, or absenteeism.
If you believe that you are a victim of HIV discrimination, explain to your employer what is required according to the ADA. If you are unable to resolve the situation, you may need to file a complaint with your local Equal Employment Opportunity Commission (EEOC) office. Complaints must be filed within 180 days of when the discrimination took place. The EEOC then investigates the complaint. If the problem is not resolved, they will them give the employee or applicant a “right to sue” letter. This permits the employee to sue the employer. You will want to seek the counsel of a qualified employment discrimination attorney, who will advise you of your rights, which may include back pay, benefits, getting the job back or other damages.
David Hakimfar is a Trial Attorney and Senior Partner of Hakimfar Law, PLC, and a member attorney of Pride Legal. He can be reached at 310-730-1250 or through Pride Legal at 888-789-7743.