Understanding HIV or Aids Discrimination in New Jersey
Approximately 1.2 million Americans are living with HIV, the virus that causes AIDS. Strides in modern medicine have transformed an HIV diagnosis from a death sentence to a manageable health condition. Today, we are knowledgeable about how the disease is (and is not) transmitted. Unfortunately, prejudice against individuals suffering with HIV or AIDS still lingers.
Discrimination based on HIV/AIDS status in the workplace is illegal. If you have been fired, demoted, or subject to a hostile work environment due to your HIV or AIDS status, the employment discrimination attorneys at McOmber McOmber & Luber, P.C. can help you. From our offices in Red Bank, NJ, Marlton, NJ and Newark, NJ, , we represent both employees and employers throughout the state in HIV/AIDS discrimination cases. Our firm will provide you with a clear and candid evaluation of any potential claims, as well as all legal options available to you.
Am I Protected Against HIV/AIDS Discrimination?
Discrimination against people with HIV and AIDS is prohibited by an array of state and federal laws, including:
- Titles I and II of the Americans with Disability Act (ADA)
- The New Jersey Law Against Discrimination (NJLAD)
- The Rehabilitation Act of 1973
- The Family Medical Leave Act of 1993 (FMLA)
- The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Depending on the circumstances, HIV/AIDS discrimination can overlap with several other forms of illegal workplace discrimination, including:
- Disability Discrimination
- LGBT Discrimination or Sexual Orientation Discrimination
- Marital Status Discrimination
- Race Discrimination
- Gender Discrimination
- Transgender Discrimination
Federal HIV/AIDS Protections under ADA
The ADA specifically prohibits employment discrimination on the basis of disability. Under the ADA, HIV or AIDS status is considered a disability.
All public employers and all private employers with fifteen or more employees are subject to the requirements of the ADA. If you meet legitimate employment requirements and can perform the essential functions of your job (with or without reasonable accommodation), you cannot be discriminated against on the basis of your status as HIV positive.
Moreover, the ADA’s protections extend to individuals perceived or rumored to be HIV positive, and any individuals who are known to associate with them. For example, if your spouse has been diagnosed with HIV, your employer cannot discriminate against you on the basis of your association with him or her.
State HIV/AIDS Protections Under NJLAD
The New Jersey Law Against Discrimination (NJLAD) makes it unlawful for an employer to discriminate against any individual based on a real or perceived disability, including HIV/AIDS status. The NJLAD applies to all private, state and local government employers in New Jersey, whereas the ADA applies only to employers with 15 or more employees.
Under the NJLAD, it is unlawful for an employer to deny application, employment, promotion, compensation, job postings, training, benefits or disability leave to anyone based on HIV/AIDS status. The employer is also responsible for ensuring that employees are not harassed by supervisors, managers or co-workers that are intolerant of an individual’s traits or preferences.
What Constitutes HIV or AIDS Discrimination in NJ?
The protections of the ADA apply to employment decisions at all stages, including:
- Biased application procedures
- Bias in hiring
- Discriminatory job assignments
- Refusal to grant reasonable accommodations
- Unjustified termination
- Differential wages or benefits
Employers can consider health and safety when making employment decisions, however it is unlikely that a court would consider potential HIV transmission a legitimate safety threat.
Other common examples of HIV/AIDS discrimination in the workplace include:
- Being subjected to harassment or increased scrutiny
- Jokes, slurs, or stereotypes based on HIV/AIDS status
- The existence of a hostile work environment with severe and pervasive harassment
- Terminating or disciplining an employee in retaliation for making a complaint
- Exclusion from work events due to HIV/AIDS status
Employers covered by the ADA must make reasonable accommodations to allow individuals with HIV to continue in their job. Reasonable accommodations are any modifications that are not unduly burdensome in relation to the size of the employer. The potential loss of customers or other employees due to the fact that an employee is perceived to have HIV/AIDS is not an undue hardship.
Reasonable accommodations might include extended leave policies, reassignment to positions that are less physically demanding or more flexible hours.
Your employer may inquire about any health conditions that might potentially interfere with the performance of your job. However, if you request reasonable accommodations, your employer cannot inquire about your HIV status. The ADA requires that information be kept confidential.
HIV/AIDS Discrimination and LGBT Employees
HIV continues to disproportionately affect the LGBT community. According to the CDC, gay and bisexual men made up 69% of new HIV diagnoses in the United States in 2018, and 492,000 sexually active gay and bisexual men in the US are at a high risk for HIV.
Just like HIV/AIDS discrimination, LGBT discrimination in the workplace is against the law, and we can help you if you have been a victim of harassment, retaliation, or any other disciplinary actions.
What Can I Do If I Have Been Discriminated Against On The Basis Of My HIV/AIDS Status?
Whenever you feel you are being discriminated against in the workplace because of your HIV/AIDS status, or you witness the discrimination of another, it is important to reach out to an experienced NJ employment discrimination lawyer at McOmber McOmber & Luber, P.C. We will review the details of your case and help you determine if you should pursue action by filing a lawsuit under the NJLAD or federal law. We can also defend you if you are an employer facing a claim of HIV/AIDS discrimination.