HIV Discrimination in
the Workplace
This
month, the American Civil Liberties Union (ACLU) released its findings
regarding civil rights violations against people with HIV/AIDS. The ACLU's
survey of community based AIDS service providers detailed continuing
concerns of discrimination in the workplace.
HIV
(Human Immunodeficiency Virus) is the virus that causes AIDS (Acquired
Immune Deficiency Syndrome). HIV is a life-long infection that weakens the
body's natural ability to fight off disease. AIDS is the most serious stage
of HIV infection.
The
estimated number of diagnoses of AIDS through 2002 in the United States
is 886, 575. With over 128,000 reported AIDS cases, California
has the second highest number of AIDS cases after New York.
From
April to June of 2003, 5,965 new cases of HIV infection were reported in California.
According to the Joint United Nations Programme
on HIV/AIDS, an estimated 42 million people worldwide are living with
HIV/AIDS. Approximately 5 million people acquired HIV in 2002 alone. Most
of these cases affect adults of working age. Moreover, according to a CDC
report, an estimated 280,000 people living in the United States
do not know they are infected because they have not been tested.
Recent Lawsuit Filed By ACLU
On
the same day that the ACLU released its survey, it also filed a lawsuit on
behalf of an HIV-positive 19-year old Nebraska woman against a local
restaurant for illegal discrimination. Priscilla Doe, who is suing under a
pseudonym to protect her privacy, was allegedly fired from her job as a
hostess at a restaurant in the small town where she lives when the owner
learned that she was HIV positive. According to the complaint, Priscilla
was hired as a hostess at the restaurant in August of 2002. She got along
well with the owners until May 9, 2003 when she was called just before she
was to report to work and allegedly fired over the phone. Priscilla claims
that she later learned from other employees that the owners fired her
because they found out that she was HIV-positive.
Employer's Obligations in California
Employers
are prohibited under both state and federal law from discriminating against
an employee with HIV infection.
The
federal Americans with Disabilities Act applies to
employers with 15 or more employees. The ADA prohibits discrimination against
individuals with physical or mental impairments that substantially limit
one or more major life activities, have a record of impairment, or are
regarded as having such an impairment. Individuals
with clinical HIV disease or AIDS meet the definition of disabled.
A
1998 decision by the United States Supreme Court, Bragdon
v. Abbot (1998) 524 U.S. 624, held that asymptomatic HIV qualifies as a
disability if the individual can prove that his or her status substantially
limits a major life activity.
Employees
may further argue that even if asymptomatic they were "regarded
as" disabled by the employer and discriminated against on that basis.
California law prohibiting discrimination
against the disabled is broader than the federal ADA and applies to employers with five or
more employees. Government Code section 12900 et seq. prohibits
discrimination against the disabled. Disability is broadly defined as a
physical or mental impairment that simply "limits" (as opposed to
the ADA
requirement of "substantially limits") a major life function.
Fair Employment and Housing Commission regulations establish that disabled
person include individuals with HIV infection or AIDS or who are perceived
as having AIDS. (California
Code of Regulations, Title 2, 7293.5 et seq.)
California also
prohibits employers from requiring HIV testing as a condition of employment
and prohibits using HIV test results for determining an individual's
suitability for employment. (Health and Safety Code 120980.) Similarly,
Health and Safety Code section 121025 prohibits use of public health
records pertaining to AIDS to determine employability.
Furthermore,
California
law mandates that employers establish procedures to keep all employee
medical records and information confidential and protect them from
unauthorized use and disclosure. A violation of this law is a misdemeanor
and allows an employee to collect damages, attorney's fees, and the costs
of litigation. (Civil Code 56.35.) Individuals who negligently or willfully
disclose the results of an individual's HIV test to a third party without a
written authorization may be liable for civil and criminal penalties.
(Health and Safety Code 120980.)
Tips for Employers
Some
studies have estimated that as many as two-thirds of large businesses have
employees affected with HIV or AIDS. Recent medical breakthroughs and new
treatments enable people living with HIV or AIDS to remain in the workplace
longer and even return to work after being on disability. There are several
things employers can do to prevent discrimination against HIV positive
employees.
- Educate the
workforce about HIV infection and AIDS. Provide accurate and
up-to-date information to employees from trained professionals.
- Provide the same
employment opportunities to employees with HIV/AIDS as to anyone else.
- Maintain the
confidentiality of an employee's HIV positive status. Maintain such
information in a confidential file separate from the employee's
personnel file.
- Prohibit gossip or
rumors about employees suspected of being, or confirmed as, HIV
positive.
- Be sure employees
know where to go if they observe or experience HIV-related
discrimination.
- Refuse to tolerate
"AIDS jokes"; treat them like ethnic or racial jokes;
- Engage in the
interactive reasonable accommodation process with employees who are
HIV positive when required.
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