Discrimination Based on HIV or AIDS Status
Approximately 1.1 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.
Am I Protected Against 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 Rehabilitation Act of 1973, the Family Medical Leave Act of 1993 (FMLA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The ADA specifically prohibits employment discrimination on the basis of disability. Under the ADA, HIV and AIDS are considered disabilities.
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.
What Constitutes Discrimination?
The protections of the ADA apply to employment decisions at all stages, including:
- Bias in hiring
- Biased application procedures
- Discriminatory job assignments
- Refusal to grant accommodations
- Unjustified termination
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.
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.
What Can I Do If I Have Been Discriminated Against on the Basis of My HIV/AIDS Status?
Applicants or employees who feel that they have been targets can file a charge of discrimination with the nearest Federal Equal Employment Opportunity Commission (EEOC) office within 180 days of the alleged discriminatory action. A third party, an organization or an agency can also file a charge on behalf of the aggrieved party to protect their identity (for example a spouse, co-worker, or nonprofit anti-discrimination agency might file a claim on an AIDS patient’s behalf).
Then, the EEOC would investigate the claim and attempt to correct the problem. You might receive a “right to sue” letter from the EEOC, which permits you to sue your employer in federal court on grounds that they violated the ADA.