How to Protect Yourself Against Workplace HIV Discrimination
As we enter 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 have 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. Here’s everything you need to know about workplace HIV discrimination.
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, an 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.
The Law Regarding HIV Discrimination in the Workplace
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 accommodations. HIV/AIDS qualifies as a “disability,” even if the individual is asymptomatic. There are very limited circumstances in which an employer can deny the employment of someone due to them having HIV. The employer must prove that having HIV would be a ‘direct threat’ to the work environment. The employer would also need to consider how long the duration of the risk would be, how severe the threat is, and the likelihood that potential harm could ensue. In most cases, the employer would not be able to prove that an employee’s HIV status could be harmful. There have been recent cases of food workers being denied jobs due to their HIV status. The CDC has stated that HIV positive people cannot spread the virus through food handling. Unfortunately, some employers still live in the past and believe their outdated beliefs about HIV. This is why Pride Legal’s wide range of attorneys are here to help if you or someone you know has been a victim of HIV discrimination.
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 facing 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.
ADA Guideline for HIV-Positive Employees
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 workplace 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.
Q: Do I need to disclose my HIV status to my employer or coworkers?
A: No, under California law you are not required to disclose your HIV status to your employer or future employer. In some cases, your employer could have access to your medical records, so they may see that you are HIV positive. But the employer is not allowed under law to disclose that information with anyone. Doing so would result in a discrimination claim.
Q: Can I ask for special treatment if I am HIV positive?
A: Yes, the ADA allows for special accommodations to be made for people who are HIV positive or have another disability. This could include time off, or special circumstances made. These circumstances must be made in good faith, however. An employer must make reasonable accommodations for the disabled person unless the accommodations would cause undue hardship to the employer. Undue hardship is defined as a significant cost to the employer or overall would have an effect on others in the facility.
Contact Pride Legal
If you or a loved one is a victim of workplace HIV discrimination, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.